Randwick City Council v Belle Living Pty Ltd (No 2)

Case •

[2023] NSWLEC 100

•

04 October 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Randwick City Council v Belle Living Pty Ltd (No 2) [2023] NSWLEC 100
Hearing dates: 4 and 5 July 2023, supplementary submissions filed 12, 14, and 21 July 2023
Date of orders: 04 October 2023
Decision date: 04 October 2023
Jurisdiction:Class 4
Before: Pritchard J
Decision:

Orders at [168]

Catchwords:

CIVIL ENFORCEMENT – complying development certificate – development control order – whether complying development – construction of “draft heritage item” in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)

JUDICIAL REVIEW – planning proposal – gateway determination – unreasonableness and issue estoppel – whether conditions of gateway determination complied with – mandatory public exhibition period – community consultation – substantial or strict compliance with conditions of gateway determination – alleged invalidity of cl 1.5 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW) ss 4.2, 4.25, 4.31, 9.34, 9.37

Environmental Planning and Assessment Regulation 2021 (NSW) s 134

Heritage Act 1977 (NSW) ss 25, 30

Interpretation Act 1987 (NSW) s 33

Randwick Local Environment Plan 2012 Sch 5

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) cll 1.5, 1.17A, 1.18, 2.25, 2.51

Cases Cited:

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9

Belle Living Pty Ltd v Randwick City Council [2023] NSWLEC 1282

Benmill Pty Ltd v North Sydney Council (No 2) [2020] NSWLEC 44

Boydtown Pty Ltd v Minister for Planning and Public Spaces 2023] NSWLEC 47

Cassaniti v Ball (2022) 109 NSWLR 348; [2022] NSWCA 161

CJ Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400, 407; [1968] HCA 77

Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423

De Angelis v Pepping [2015] NSWCA 236

Dincel Construction System Pty Ltd v Penrith City Council (2021) 247 LGERA 38; [2021] NSWCA 133

Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) (2021) 106 NSWLR 41; [2021] NSWCA 246

Federal Commissioner of Taxation v Auctus Resources Pty Ltd (2021) 284 FCR 294; [2021] FCAFC 39

Green & Anor v Minister for Climate Change, Environment and Water [2008] NSWLEC 48

H Lundbeck A/S v Sandoz Pty Ltd (2022) 96 ALJR 208; (2022) 399 ALR 184; [2022] HCA 4

HFM043 v Republic of Nauru (2018) 359 ALR 176; [2018] HCA 37

Hill v Blacktown City Council (2007) 154 LGERA 418; [2007] NSWLEC 401

Johnson v Lake Macquarie City Council (1996) 91 LGERA 331

Kelly v R (2004) 218 CLR 216; [2004] HCA 12

Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404

Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28

Lahoud v Willoughby City Council [2022] NSWLEC 125

Le Mesurier v Connor (1929) 42 CLR 481; [1929] HCA 41

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration v EFX17 (2021) 271 CLR 112; [2021] HCA 9

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

One.Tel Ltd v Australian Communications Authority (2001) 110 FCR 125; [2001] FCA 54

O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8

Randwick City Council v Belle Living Pty Ltd [2023] NSWLEC 63

Rennie Golledge Pty Limited v Ballard (2012) 82 NSWLR 231; [2012] NSWCA 376

Riley v Commonwealth (1985) 159 CLR 1 at 12; [1985] HCA 82

Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5

Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50

Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152

Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel [2012] NSWLEC 166

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Wollondilly Shire Council v Kennedy [2023] NSWLEC 53

Texts Cited:

D Pearce, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths)

P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters (Professional) Australia Limited)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 August 2008

New South Wales Legislative Council, Parliamentary Debates (Hansard), 18 October 2017

Category:Principal judgment
Parties: Randwick City Council (Applicant)
Belle Living Pty Ltd (First Respondent)
Abdul Hammoud (Second Respondent)
Representation: Counsel:
J Lazarus SC with M Harker (Applicant)
M Wright SC with M Yu (First Respondent)
Solicitors:
Lindsay Taylor Lawyers (Applicant)
Boskovitz Lawyers (First Respondent)
File Number(s): 2023/185778
Publication restriction: Nil

JUDGMENT

Introduction

Outcome

Background

Issues for determination

Council’s challenge to the CDC

Belle Living’s challenge

Relevant legislation

Challenge to the validity of the CDC: Construction of the expression “draft heritage item” in cl 1.5 of the Codes SEPP (Ground 1 of the summons; Ground 1 of the cross-summons)

Conclusion in relation to the construction of “draft heritage item” in cl 1.5 of the Codes SEPP

Challenge to the validity of the CDC: the question of discretion

First respondent’s cross-summons: alleged failure to join necessary parties

Alleged invalidity of cl 1.5 of the Codes SEPP to the extent that it purports to define “draft heritage item” (Ground 1 of the cross-summons)

Unreasonableness and issue estoppel (Ground 2 of the cross-summons)

Unreasonableness on the part of Council in asserting that the 3 Berwick Street property is a “draft heritage item”

Unreasonableness and issue estoppel: the IHO judgment of Dickson C dated 7 June 2023

Non-compliance with the gateway determination (Ground 3 of the cross-summons)

Condition 1 of the gateway determination

Condition 2(a) of the gateway determination

Whether failure to comply with conditions of the gateway determination prevents the instrument from being made

The 3 Berwick Street property and the dwelling house on it are not capable of being a “draft heritage item” (Ground 4 of the cross-summons)

Conclusion

Orders

JUDGMENT

Introduction

  1. By summons filed on 9 June 2023 (the summons), the applicant/first cross-respondent Randwick City Council (Council) sought interlocutory and final relief. The interlocutory hearing was before me on 9 and 13 June 2023, and I delivered judgment on 13 June 2023. [1]

    1. Randwick City Council v Belle Living Pty Ltd [2023] NSWLEC 63 (Pritchard J).

  2. The proceedings concern a dwelling located at 3 Berwick Street, Coogee NSW 2034 (the 3 Berwick Street property). The first respondent/cross-applicant Belle Living Pty Ltd (Belle Living) is the owner of the 3 Berwick Street property. On 7 June 2023, the second respondent, Abdul Hammoud of Certicorp Pty Ltd, issued complying development certificate CCDC-3BER/2022 (the CDC) approving the demolition of all structures at the location “Lot B DP 313214, 3 BERWICK STREET, COOGEE NSW 2034”, subject to conditions. The second respondent has filed a submitting appearance.

  3. The final relief sought by Council is in the following terms:

Final relief

5. A declaration that Complying Development Certificate CCDC-3BER/2022 is invalid.

6. A declaration that, in breach of s 9.37 of the Environmental Planning and Assessment Act 1979, the First Respondent failed to comply with the development control order issued to it by Randwick City Council on 9 June 2023 requiring the cessation of all demolition works at 3 Berwick Street, Coogee.

7. A declaration that, in breach of s 4.2 of the Environmental Planning and Assessment Act 1979, the First Respondent has carried out unauthorised works being the partial demolition of the dwelling at 3 Berwick Street, Coogee.

8. An order that the First Respondent is restrained from,

a. by itself, or by its employees, contractors, servants, or other agents,

b. carrying out demolition work to the dwelling house and dental surgery located at 3 Berwick Street, Randwick, being Lot B DP 313214, unless and until such time as it obtains the grant of a development consent permitting that work.

…

  1. On 16 June 2023, the first respondent filed a cross-summons seeking relief in the following terms (the cross-summons):

1. A declaration that the complying development certificate CCDC-3BER/2022 issued by the Second Respondent on 7 June 2023 is valid.

2. A declaration that the property at 3 Berwick Street Coogee NSW 2034 (being Lot B in DP 313214) (the Property) is not a heritage item in the Randwick Local Environment Plan 2012 (RLEP 2012).

3. A declaration that the Property is not a heritage item as defined in cl.1.5 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP).

4. A declaration that cl.1.5 of the Codes SEPP is invalid to the extent that it purports to define the term ‘draft heritage item’.

5. In the alternative to Prayer 4, a declaration that the Property is not a “draft heritage item” as that term is defined in cl.1.5 of the Codes SEPP.

6. A declaration that the Applicant/First Cross Respondent (the Council) has failed to comply with the conditions of the Gateway Determination made on 2 March 2023 (the Gateway Determination).

7. An injunction restraining the Council by itself or by its employees, contractors, servants or other agents, from further progressing the Draft Randwick Planning Proposal entitled ‘Planning Proposal Local Heritage Item - Nos 1 and 3 Berwick Street, Coogee (April 2023)’ (the Draft Planning Proposal) created for the purpose of amending the RLEP 2012 to list the Property and 1 Berwick Street, Coogee as local heritage items, until such time that all of the conditions in the Gateway Determination are met.

…

  1. Put shortly, the cross-summons contends that:

  1. the 3 Berwick Street property is not a “draft heritage item” within the meaning of cl 1.5 of the State Environmental Planning Policy (Exempt and Complying Codes) 2008 (Codes SEPP); and

  2. Council has failed to comply with conditions of a gateway determination made on 2 March 2023 by a delegate of the Minister for Planning and Homes (the Minister) pursuant to s 3.34(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) (the gateway determination) in relation to a planning proposal prepared by Council to facilitate a proposed amendment to the Randwick Local Environmental Plan 2012 (RLEP) to include the 3 Berwick Street property and the neighbouring property at 1 Berwick Street (the 1 Berwick Street property) as local heritage items (the second planning proposal).

Outcome

  1. I have determined to make the orders and declarations sought by Council in its summons filed on 9 June 2023. Accordingly, I have also determined to dismiss Belle Living’s cross-summons. My orders are set out below at [168]. In summary, my reasons for so deciding are as follows:

  1. Notwithstanding that the words “a building, work, archaeological site, tree, place or aboriginal object identified as a heritage item” in the definition of “draft heritage item” in cl 1.5 of the Codes SEPP are encompassed within the definition of “heritage item” in cl 1.5 of the Codes SEPP, having regard to cll 1.17A and 1.18 of the Codes SEPP (which stipulate respectively requirements for complying development for all environmental planning instruments, and general requirements for complying development under the SEPP, and which refer respectively to “a heritage item” and “a draft heritage item”), a “draft heritage item” must be something other than a heritage item identified in an environmental planning instrument. The reference in the definition of “draft heritage item” to the identification of the item in a local environmental plan that has been the subject of community consultation can only be construed purposively, and in context, to include a planning proposal that has been the subject of community consultation, but not made. This construction is one which affords interim protection to an item whilst its status as a “heritage item” has not been fully determined. It is necessary to construe the Codes SEPP as a whole, including by having regard to the numerous separate references throughout the SEPP to “heritage item” and “draft heritage item”. Consequently, the 3 Berwick Street property is a “draft heritage item” within the meaning of cl.1.5 of the Codes SEPP.

  2. The 3 Berwick Street property is the subject of a planning proposal which has been the subject of a gateway determination and public exhibition (referred to herein as the second planning proposal), and is a “draft heritage item” within the meaning of cl 1.5 of the Codes SEPP. Accordingly, the CDC purports to authorise the carrying out of development, namely demolition, for which the CDC was not authorised to be issued. In the exercise of my discretion under s 4.31 of the EPA Act, I will make a declaration that the CDC is invalid.

  3. There was no unreasonableness on the part of Council in “asserting” that the 3 Berwick Street property is a “draft heritage item” and in “persisting” with amendments to the RLEP to include the 3 Berwick Street property as a local heritage item. Nor would Council be prevented from doing so by reason of an issue estoppel arising from findings of fact made by a commissioner of the Court in Class 1 proceedings.

  4. Any failures on the part of Council to observe the requirements of condition 1 of the gateway determination in relation to the content of the second planning proposal, as well as the minimum public exhibition period prescribed in condition 2(a) of the gateway determination are not such as to render the second planning proposal invalid.

Background

  1. The parties filed a Statement of Agreed Facts (SOAF) from which the background set out below in part derives, as well as from a consideration of documents in a two volume agreed bundle of documents.

  2. The 3 Berwick Street property is currently occupied by a single-storey inter-war bungalow constructed in or about 1923. The bungalow is located on the southern side of Berwick Street and sits above street level, following the topography of the site that slopes down to the north. The bungalow has sandstone foundations, with a garage opening to the subfloor area. The bungalow is divided into two sections. There is a two-bedroom dwelling at the rear of the property accessed from a separate entrance at the rear. That dwelling is presently tenanted. At the front of the bungalow is a separate section now vacant and formerly used as a dental practice. It is accessed via stairs in the front yard. The two sections share the same roof, the same external walls, and the same plumbing and other services, but are separated by an internal partition wall.

  3. In January 2020, Council invited the Randwick community to nominate sites and places of potential heritage value as part of its comprehensive planning proposal to amend the RLEP (the first planning proposal).

  4. Council was conducting a review of heritage items and heritage conservation areas (HCAs) in the residential parts of the area of Council. The heritage review was to be conducted by “an independent, professional heritage consultant in line with heritage significance criteria established by Heritage NSW”. The consultation was open from 29 January 2020 to 26 February 2020. Council received approximately 281 nominations in response to the invitation. Council commissioned Extent Heritage Advisors (Extent) to prepare a comprehensive heritage review and assessment of the significance of those potential heritage items nominated by the local community for inclusion in Schedule 5 to the RLEP.

  5. As at about June 2020, the 3 Berwick Street property and the neighbouring property at 5 Berwick Street, Coogee (the 5 Berwick Street property) were owned by Berwick Holdings Pty Ltd.

  6. On about 30 June 2020, Georgia McKenzie, architect, lodged development application DA/303/2020 in relation to the 3 Berwick Street property and the 5 Berwick Street property for “Demolition of two existing buildings and structures; excavation below ground level for one level of basement car parking; construction of a three storey residential flat building, comprising 6 apartments, 10 car parking spaces and 717.9sqm of GFA; site landscaping; vehicular access via Berwick Street and augmentation of services infrastructure and utilities” (the 2020 development application).

  7. In October 2020, Council also commissioned Extent to undertake an independent peer review of a Heritage Impact Statement (HIS) prepared by Urbis in May 2020 for the 3 Berwick Street and 5 Berwick Street properties. On 2 December 2020, Extent provided Council with its report on the heritage significance of the two properties, titled “3-5 Berwick Street, Coogee – Letter of Heritage Advice” (the Extent report). The Extent report provided the following context in relation to its assessment of the heritage assessment of the two properties:

The properties were identified as a potential heritage item via community submission as part of the Randwick Heritage Study, currently being undertaken by Extent Heritage. However, as these properties are currently subject to an existing Development Application (DA 303/2020), it was removed from consideration in that Study. A HIS prepared by Urbis in May 2020 accompanied the DA.

The purpose of this peer review is to review the HIS and the adequacy of its assessment of impacts and provide Randwick Council with additional recommendations and mitigation measures that may reduce the impact.

  1. Extent made findings and recommendations in relation to the properties at 3 Berwick Street and 5 Berwick Street as follows:

Comparative analysis findings

The comparative analysis undertaken for the dwellings at 3 and 5 Berwick Street indicates that while inter-war bungalows in general are not rare within the LGA, many have had their interiors modified or removed, affecting their integrity. While 3 Berwick Street has been subject to internal and external treatments (removal of timber trim elements, verandah enclosure) that has affected its integrity and significance, 5 Berwick Street stands as an intact example that exemplifies the principal characteristics of its architectural type, and through our research can be considered a rare and representative example.

…

Conclusions and recommendations

Our peer review and additional assessment has drawn out the following key points:

• Our assessment concurs that 3 Berwick Street does not meet the threshold for local listing as a heritage item under any criteria.

• Our assessment concludes that 5 Berwick Street does meet the threshold for local listing as a heritage item under criteria F and G and should be listed on Schedule 5 of the Randwick Local Environment Plan 2012.

• Should 5 Berwick be listed, the DA in its current design to demolish the building, must be rejected. Any new development for 3 Berwick Street must satisfy DCP requirements for development adjacent to heritage items.

…

  1. In relation to Council’s comprehensive review of heritage items and heritage conservation areas in the residential parts of the area of Council, in March 2021 Extent prepared a report titled, “Heritage Study Randwick City Council” (the Extent heritage study). The Extent heritage study reviewed 13 listed HCAs within the Randwick local government area, and reviewed and assessed the significance of the 281 potential heritage items (see [10] above) nominated by the community for heritage listing.

  2. Each HCA review in the Extent heritage study included fieldwork observations and general integrity assessments of listed heritage items within the conservation area; and assessment of current and potential future risks and threats that may affect the conservation area; a risk of the key existing values in the HCA as outlined in the Randwick Development Control Plan 2013; and provision of recommendation to help preserve or enhance characteristic elements of the HCA in the form of “future vision” statements.

  1. The 281 potential heritage items nominated by the community were assessed under a first round review whereby 78 nominations were omitted as they related to sites that were already listed as local heritage items under the RLEP, were duplications of addresses or sites, or were omitted from the 281 nominations for other reasons. This review resulted in 203 nominations being progressed to comprehensive assessment. The 3 Berwick Street property was one of 203 nominations identified as requiring a comprehensive assessment of heritage value. The 203 nominations formed the second-round review, “a high-level desk top assessment to understand obvious heritage significant values of proposed items, with the aim of presenting to Council a list of items for consideration for inclusion on the Randwick LEP Schedule 5”.

  2. In relation to the 5 Berwick Street property, the second round review concluded:

Intact example of an inter-war Californian Bungalow with intact interiors that exemplifies the principal characteristics of its architectural type.

This appears to be rare within the LGA and is recommended it is listed.

  1. In Appendix B to the study, titled “Proposed Heritage Items – Items Not Proposed for Listing” in relation to the 3 Berwick Street property, the study concluded:

Modified inter-war Bungalow. Loss of significant fabric to interior and exterior (e.g. removal of timber trim elements, verandah enclosure) which has affected its integrity and significance.

3 Berwick Street is not recommended for listing.

  1. On 6 April 2021, the Randwick Local Planning Panel (RLPP) held a meeting at which it considered two general reports prepared by Council officers: the first titled “GR 2/21 Randwick Comprehensive LEP: Heritage Conservation” which considered the Extent heritage study; and the second titled “GR 3/21 Randwick Comprehensive Planning Proposal – Local Character”.

  2. The RLPP resolved to support the incorporation of amendments to heritage conservation areas and/or heritage listings under Schedule 5 to the RLEP to list 57 properties as heritage items. Those properties included the 5 Berwick Street property.

  3. On 25 May 2021, Council considered the Extent heritage study and the advice provided by the RLPP at its meeting on 6 April 2021. Council resolved to amend Schedule 5 to the RLEP to list 57 properties as heritage items. These included the 5 Berwick Street property. Council resolved that the 3 Berwick Street property, along with other properties “not proposed [by Extent] for heritage listing, be identified and set aside by Council for a future in-depth heritage study.”

  4. On 10 February 2022, Belle Living entered into a contract to purchase the 3 Berwick Street property, and on 27 May 2022, settled on the 3 Berwick Street property.

  5. In late August 2022, Belle Living’s architect, Mr Tone Wheeler of Environa Studio, lodged on Council’s planning portal development application DA/432/2022 seeking subdivision of the 3 Berwick Street property into two allotments and the construction of two semi-detached dwellings, one on each allotment (the 2022 development application). Belle Living commissioned Graham Hall, architect and heritage consultant, to prepare a report titled “Statement of heritage impact for terrace houses at 3 Berwick Street Coogee” and dated August 2022 (the Hall report). The purpose of the Hall report was “to assist Randwick City Council, its professional advisers and interested members of the public when considering a Development Application for two new terrace houses at 3 Berwick Street, Coogee, designed by Environa Studio”. The Hall report stated that “[t]he house at 3 Berwick Street is not heritage-listed and has no heritage significance, so that its demolition will have no heritage impact”.

  6. In late August 2022, Belle Living’s builder Mr Hassan Nazzal lodged on Council’s planning portal an application for a complying development certificate for the demolition of the building on the 3 Berwick Street property. On or about 21 September 2022, the 2020 development application was withdrawn.

  7. At a meeting of Council on 27 September 2022, an urgent business motion was carried in the following terms:

a) Council officers urgently undertake a preliminary heritage assessment of the building at 3 Berwick Street, Coogee to determine if it is likely to be found, on further inquiry and investigation, to be of local heritage significance;

b) it is noted 1, 3 and 5 Berwick Street form a cluster of interwar buildings; and

c) if the preliminary heritage assessment is suggestive of 3 Berwick Street having local heritage significance, then an interim heritage order be placed on the property so its heritage values can be fully assessed.

  1. On 10 October 2022, the 2022 development application was placed on public exhibition, accompanied by the Hall report.

  2. On 12 October 2022, Council issued a request for quotation for a heritage assessment of the 3 Berwick Street property. On 13 October 2022, Council obtained a heritage assessment report from Ms Kerime Danis of City Plan Heritage Pty Ltd in relation to the 3 Berwick Street property (the Danis report). Under the heading “Methodology”, Ms Danis stated that she had previously undertaken an inspection of the 3 Berwick Street property on 22 September 2021 “from the public domain as part of the peer review of the Extent Heritage potential heritage items, which included the adjoining building at 5 Berwick Street”. Ms Danis concluded:

A detailed assessment of the heritage significance of the property at 3 Berwick Street, Coogee, has been provided in the State Heritage Inventory form included in the Appendix to this covering heritage assessment and advice letter. Based on the documentary and physical evidence, it is concluded that the subject building at 3 Berwick Street is of local heritage significance and meets the threshold for individual heritage listing under Criteria (a), (b), (c), (f) and (g) of the Assessing Heritage Significance as defined in the Statement of Significance…

It is concluded by City Plan Heritage that the inter-war bungalow at 3 Berwick Street in Coogee is of local heritage significance and meets the significance assessment criteria for listing as a heritage item under Part 1 (Heritage items) of Schedule 5 of Randwick LEP 2012.

It is noted that although each property at 1, 3 and 5 Berwick Street in Coogee meets the threshold for heritage listing individually, their collective interwar heritage values make stronger contribution and add to the environmental heritage of Randwick LGA and therefore they should be listed as a group heritage item to maintain their integrity and appreciation. It is recommended that the Council considers extension of the heritage listing for number 5 Berwick Street to a group listing in a future planning proposal to include properties at 1 and 3 Berwick Street.

  1. On 14 October 2022, Council made an interim heritage order pursuant to s 25 of the Heritage Act 1977 (NSW) (Heritage Act) to cover the item of environmental heritage known as 3 Berwick Street, situated at Coogee on all those pieces or parcels of land known as Lot B DP 313214 (the IHO) in the following terms:

This Interim Heritage Order will lapse six months from the date that it is made unless the local council has passed a resolution before that date either:

1) in the case of an item which, in the council’s opinion, is of local significance, to place the item on the heritage schedule of a local environment plan with appropriate provisions for protecting and managing the item; and

2) in the case of an item which in the council’s opinion, is of State heritage significance, nominate the item for inclusion on the State Heritage Register.

  1. On 14 October 2022, a memorandum in relation to the IHO, approved by Mr Roman Wereszczynski, acting director city planning, was sent to all councillors, stating that in light of the recommendation in the Danis report, Council, under delegated authority, had placed an IHO on the building and site at 3 Berwick Street, Coogee (Lot B, DP 313214). The memorandum stated that:

[t]here are adequate grounds for the making of an interim heritage order to protect the property at No 3 Berwick Street from likely harm. The interim heritage order will be in place for a period of 6 months subject to further extension if required. During this period, a planning proposal for the protection and listing of the subject property under Schedule 5 of the Randwick LEP will be undertaken

and concluded that:

[t]he making of an interim heritage order in relation to No 3 Berwick Street accords with the relevant statutory requirements for making IHOs. There are adequate grounds established in a heritage assessment for the making of an interim heritage order to protect the property at No 3 Berwick Street from likely harm.

  1. Also on 14 October 2022, the second respondent gave written notice of an application for a complying development certificate pursuant to s 134 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), stating that the proposed development was to “demolish the existing dwelling” at 3 Berwick Street.

  2. On 10 November 2022, Belle Living filed a Class 1 appeal against the making of the IHO by Council pursuant to s 25 of the Heritage Act (the IHO proceedings).

  3. On 24 November 2022, the RLPP held a meeting at which it resolved to recommend that the 3 Berwick Street property and the adjoining 1 Berwick Street property be listed as items of local heritage in Schedule 5 to the RLEP.

  4. Council prepared a document in draft form dated November 2022 titled “Planning Proposal: Local Heritage Item – Nos. 1 and 3 Berwick Street, Coogee” (referred to herein as the second planning proposal) to facilitate amendments to the RLEP to include each of the 1 Berwick Street and 3 Berwick Street properties as a local heritage item in Schedule 5.

  5. The second planning proposal records that it was “consistent with the recommendations outlined within the [Extent heritage study] to investigate the potential significance of the property at 3 Berwick Street, Coogee”, and that a “timely determination” of the proposal from the Department of Planning and Environment (the Department) was “important and desirable” given that Council “[was] seeking to protect three items that have been identified as having local heritage significance”.

  6. In early December 2022, Belle Living leased the rear portion of the 3 Berwick Street property to a residential tenant for a period of 12 months.

  7. On 8 February 2023, Council, as the relevant planning proposal authority, forwarded the second planning proposal to the Minister pursuant to s 3.34(1) of the EPA Act.

  8. On 2 March 2023, Mr Simon Ip, manager, place and infrastructure at the Department, as delegate of the Minister, made a determination pursuant to s 3.34(2) of the EPA Act that the second planning proposal should proceed, subject to conditions (referred to herein as the gateway determination).

  9. Condition 1 of the gateway determination provided, relevantly, that prior to public exhibition, the planning proposal was to be revised to:

Condition 1(c)

Include an assessment of heritage significance in the planning proposal clearly setting out the listing criteria in the NSW Heritage Office manual, Assessing Heritage Significance, 2001, and explaining how the sites satisfy the relevant criteria. The assessment should address the inclusion/exclusion guidelines in the above manual.

Condition 1(d)

Update the heritage inventory sheets to clearly identify which listing criteria have been satisfied for both sites. In particular, confirm whether both sites satisfy criterion (e) research potential, and whether the site at 1 Berwick Street, Coogee satisfies criterion (f) rarity and criterion (g) representativeness; the analysis should compare the site against other similar types of buildings within the suburb or local government area (or broader area as appropriate).

Condition 1(e)

Include a comparative analysis in the heritage assessment to justify any findings that the site’s satisfy criterion (f) rarity and criterion (g) representativeness; the analysis should compare sites against other similar tyres of buildings within the suburb or local government area (or broader area as appropriate).

Condition 1(g)

Update the discussion regarding the [Codes SEPP] to clarify that certain exempt development provisions apply to heritage items.

Condition 1(i)

Provide information to address the relevant provisions of the Randwick Community Strategic Plan relating to the protection of local heritage.

Condition 1(j)

Make reference to both sites in the discussions and assessment in the planning proposal and rectify any omission.

  1. Condition 2 of the gateway determination provided, relevantly, that public exhibition was required under s 3.34(2)(c) and cl 4 of Schedule 1 to the EPA Act as follows:

Condition 2(a)

The planning proposal is categorised as basic as described in the Local Environmental Plan Making Guide (Department of Planning and Environment, September 2022); in this instance the proposal must be made publicly available for a minimum of 20 working days.

  1. On 12 and 13 April 2023, the Court (Commissioner Dickson) heard the Class 1 appeal against the making of the IHO.

  2. In the IHO proceedings, the parties filed a joint report of heritage experts Mr Stephen Davies for Belle Living and Ms Danis (of City Plan Heritage Pty Ltd) for Council (the Davies/Danis joint expert report). The Davies/Danis joint expert report identified an agreed list of documents containing a number of heritage assessments previously undertaken in relation to the 3 Berwick Street property. Attached to the expert report was a report titled “Peer Review / Report of Interim Heritage Order” dated 10 March 2023 prepared for Belle Living by Mr Paul Rappoport, conservation architect and town planner of Heritage 21, Cultural Built Heritage in the 21st Century (the Rappoport report). Mr Rappoport concluded that the “only part [of the 3 Berwick Street property] that…ought physically be retained is the front sandstone fence due to its uniqueness and its contribution to front sandstone fences that are generally common in the Coogee area/Randwick LGA.”

  3. In the Davies/Danis joint expert report, Mr Davies and Ms Danis addressed the following criteria for heritage listing under the NSW Heritage Office guidelines titled “Assessing Heritage Significance – a NSW Heritage Manual Update” published in July 2001 (the NSW Heritage guidelines): (a) historical significance; (b) associative significance; (c) aesthetic significance; (d) social significance; (e) potential research significance; (f) rarity value; and (g) representative value.

  4. Ms Danis opined that the 3 Berwick Street property “meets five of the seven criteria [of the NSW Heritage guidelines] and maintains its integrity of the key attributes of the Inter-War bungalow style”, maintaining the view expressed in the earlier Danis report that the 3 Berwick Street property meets criteria (a), (b), (c), (f) and (g) of the NSW Heritage guidelines. In an annexure to the Davies/ Danis joint expert report, Ms Danis also engaged with the statements in the Rappoport report, and said:

It is apparent that there are noticeable intact original features remaining within 3 Berwick Street both internally and externally, and therefore requires further fabric analysis to ascertain the integrity of the item, which may reveal further intact original fabric. Rarity is only one of the seven [heritage] significance assessment criteria and doesn’t need to be satisfied if the item has met the threshold under one of the other criteria.

  1. Mr Davies held a contrary opinion, namely that the dwelling is “a general example of an inter-war bungalow and does not demonstrate the full range of characteristics of the style”, and is not “a rare or fine example of the period or typology”. In Mr Davies’ opinion, being recognisable as a dwelling of a particular period was “not sufficient criteria for listing”.

  2. By email dated 16 April 2023, attaching a letter dated 14 April 2023, Council notified Belle Living’s lawyers that the second planning proposal to list the 1 and 3 Berwick Street properties as local heritage items under Schedule 5 to the RLEP would be on exhibition from Monday, 17 April 2023 to Friday, 12 May 2023. In the covering email Council said:

The planning proposal received gateway determination from the NSW Department of Planning on 2 March 2023 and as a condition of this approval required that Council place the planning proposal on Public exhibition for 20 days in accordance with section 3.34(2)(c) and clause 4 of Schedule 1 to the EP&A Act.

…

Please be advised that a letter has also been sent from Randwick Council to the owners of 1 and 3 Berwick Street advising them of the public exhibition of the Planning Proposal to list Nos 1 and 3 Berwick Street, Coogee, as heritage items under Schedule 5 of the Randwick LEP.

The Planning Proposal and supporting documents can be viewed at:

• Council’s Customer Service Centre, 30 Frances Street Randwick, between 8.30am and 5.00pm Monday to Friday

• Bowen Library, 669-673 Anzac Parade, Maroubra during library hours

• Malabar Library, 1203 Anzac Parade, Matraville during library hours

• Randwick Library, Level 1, Royal Randwick Shopping Centre, Randwick during library hours

• Council’s Your Say webpage at

  1. On 17 April 2023, the second planning proposal, in final form, titled “Local Heritage Item – Nos. 1 and 3 Berwick Street, Coogee” and dated April 2023, was placed on public exhibition.

  2. On 23 April 2023, Belle Living’s lawyers sent correspondence to Council submitting that “many of the requirements” in “Point 1” of the gateway determination had not been met, referring in particular to conditions 1(c), (d), (e), (g), (i) and (j) of the gateway determination.

  3. Tuesday, 25 April 2023 was a public holiday for Anzac Day.

  4. On 11 May 2023, Council refused the 2022 development application. In the notice of determination dated 12 May 2023, the reasons for refusal included:

1. The proposal would not conserve the environmental heritage of Randwick as it would involve the removal of a proposed heritage item of local significance.

2. The proposal would not conserve the significance of the heritage item due to the removal and loss of significant heritage fabric.

3. The proposal involves the demolition of historical fabric of a draft heritage item contrary to the objectives and intended outcomes of the Planning Proposal to list No 5 (and No. 1) Berwick Street which is currently on public exhibition as required under the associated Gateway Determination.

4. The site and property at 3 Berwick Street, Coogee, is the subject of an Interim Heritage Order supported by a heritage study by City Plan Heritage that finds the existing property meets the relevant criteria for heritage listing being Criteria A (historic significance), B (historical association), C (aesthetic), F (rarity) and G (representative) of the “Assessing Heritage Significance”, prepared by the NSW Heritage Office.

…

  1. On 7 June 2023, Commissioner Dickson delivered judgment in the IHO proceedings, and made final orders upholding the appeal and revoking the IHO (the IHO judgment). [2] The Commissioner accepted the evidence of Mr Davies in the Davies/Danis joint expert report, and concluded as follows:

56. I am persuaded that the purpose of the making of the IHO has been satisfied by the completion of additional research and assessment of the property and building at 3 Berwick Street Coogee since the gazettal of the IHO. The research and reports that have been undertaken and provided to the Court in evidence are, in my view, thorough and comprehensive and I am satisfied that any further investigation will not illicit additional information that would change the finding that the item does not reach the threshold for local heritage listing when the Heritage Guidelines are applied. On that basis, it is appropriate to revoke the IHO.

57. In exercising the power of the Court pursuant to s 39(2) of the LEC Act, is to exercise the functions and discretions that the Council had in respect of the making of the IHO. I have given consideration the public interest and the submissions received. However, I remain satisfied that any further investigation will not elicit additional information sufficient to change the finding that the item does not reach the threshold for local listing under the criteria advanced by Ms Danis and the Council.

58. The IHO that applies to the site has served it’s statutory purpose in protecting the item while further research was undertaken in regard to the heritage significance of the shop buildings on the site. Having considered all the evidence before the Court, and the submission from the members of the public, I am not satisfied that the property is worthy of local heritage listing.

2. Belle Living Pty Ltd v Randwick City Council [2023] NSWLEC 1282 (Dickson C).

  1. On 7 June 2023, the second respondent gave notice of determination of the application for the issue of a CDC to Belle Living pursuant to s 4.28(11) of the EPA Act. The notice of determination approved the “Demolition of all Structures On-Site”, subject to conditions, with the consent to operate from 7 June 2023 and to lapse on 7 June 2028 (unless physically commenced).

  2. On 9 June 2023, from about 7:30am, builders contracted by Belle Living commenced works at the 3 Berwick Street property to strip out internal elements at the front of the building, including spoiled ceilings, cornices and other elements affected by mould, as well as to remove old dental furnishings.

  3. On 9 June 2023, Council gave a stop demolition work order to Belle Living pursuant to s 9.34 of the EPA Act and order no 4 in the table to Part 1 of Schedule 5 to the EPA Act in relation to the 3 Berwick Street property, reference number EPAA-02/7098 (the DCO). The terms of the DCO were that Belle Living was to “stop all demolition work (removal of walls, ceiling, floors, linings, fixtures and fittings and any other internal or external building elements)”.

  4. On 9 June 2023, Council commenced these Class 4 proceedings by way of summons, and sought interlocutory relief.

  5. On 13 June 2023, I delivered judgment on the question of interlocutory relief, and made orders and directions for the further conduct of the matter. [3] I granted interlocutory relief to Council in the following terms:

(1) Until further order, the first respondent by itself or by its employees, contractors, servants or other agents is restrained from carrying out demolition works to the dwelling house and dental surgery located at 3 Berwick Street, Coogee 2034, being Lot B DP 313214 (the property), with the exception of that work that is necessary for urgent repairs arising during the course of this order.

The Court notes that subject to the making of order 1, the applicant undertakes to revoke the Development Control Order reference number EPAA-02/7098 dated 9 June 2023 addressed to the first respondent Belle Living Pty Ltd within 24 hours of the date of these orders.

3. Randwick City Council v Belle Living Pty Ltd [2023] NSWLEC 63 (Pritchard J).

  1. On 14 June 2023, Council gave notice of the revocation of the DCO pursuant to cl 23(3) of Part 10 in Schedule 5 to the EPA Act.

  2. On 16 June 2023, Belle Living filed the cross-summons and its response to the summons filed by Council on 9 June 2023.

  3. On 3 July 2023, Council filed a summons commencing an appeal against the decision of Commissioner Dickson in the IHO proceedings. That appeal is not presently listed before me.

Issues for determination

Council’s challenge to the CDC

  1. The sole ground in Council’s summons is that:

The CDC purports to approve development, being demolition, which is not complying development.

(Ground 1 of the summons).

  1. The particulars to that ground are that:

a. A certifier may issue a complying development certificate only in relation to development identified as ‘complying development’ in an environmental planning certificate: EPA Act, ss 4.2(5), 4.25.

b. Pursuant to cl 1.18 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, development is not complying development if it is proposed to be carried out on land that comprises, or on which there is, a draft heritage item.

c. The dwelling at 3 Berwick Street is the subject of a planning proposal to be listed as a heritage item under the Randwick Local Environmental Plan 2012.

d. The planning proposal has been the subject of:

i. a Gateway Determination under s 3.34 of the EPA Act, and

ii. public exhibition.

e. In the premises:

i. the dwelling is a draft heritage item; and

ii. its demolition is therefore not complying development.

f. In the premises, and pursuant to s 4.31 of the Environmental Planning and Assessment Act 1979, the complying development certificate is invalid.

  1. Council identified the “fundamental issue” in the proceedings as whether the 3 Berwick Street property is a “draft heritage item”. If the Court finds that the 3 Berwick Street property is a “draft heritage item”, Council contended that it follows that:

  1. the development pursuant to the CDC is not complying development as it is proposed to be carried out on land that comprises or on which there is a draft heritage item, and the CDC ought be declared invalid pursuant to s 4.31 of the EPA Act; and

  2. demolition works cannot be carried out at the 3 Berwick Street property as exempt development pursuant to cl 2.25 of the Codes SEPP.

Belle Living’s challenge

  1. In its cross-summons, Belle Living raised the following four grounds:

  1. Clause 1.5 of the Codes SEPP is invalid to the extent that it purports to define the term “draft heritage item” (Ground 1 of the cross-summons).

  2. Council has acted unreasonably in proceedings to amend the RLEP to list the 3 Berwick Street property as a local heritage item (Ground 2 of the cross-summons).

  3. Council cannot lawfully progress the second planning proposal prepared for the purpose of amending the RLEP to list the 3 Berwick Street and 1 Berwick Street properties as local heritage items due to Council’s failure to comply with conditions of the gateway determination made on 2 March 2023 pursuant to s 3.34 of the EPA Act (Ground 3 of the cross-summons).

  4. Further, and in the alternative, neither the 3 Berwick Street property nor the dwelling house erected on it is capable of falling within the definition of “draft heritage item” in cl 1.5 of the Codes SEPP (Ground 4 of the cross-summons).

Relevant legislation

  1. The applicable legislative provisions at all relevant times are as follows.

  2. In relation to gateway determinations, s 3.34 of the EPA Act relevantly provides:

3.34   Gateway determination

(1)  After preparing a planning proposal, the planning proposal authority may forward it to the Minister.

(2)  After a review of the planning proposal, the Minister is to determine the following—

(a)  whether the matter should proceed (with or without variation),

(b)  whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal),

(c)  the minimum period of public exhibition of the planning proposal (or a determination that no such public exhibition is required because of the minor nature of the proposal),

Note—

Under Schedule 1, the mandatory period of public exhibition is 28 days if a determination is not made under paragraph (c).

(d)  any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument,

(e)  whether a public hearing is to be held into the matter by the Independent Planning Commission or other specified person or body,

(f)  the times within which the various stages of the procedure for the making of the proposed instrument are to be completed,

(g)  if the planning proposal authority is a council—whether the council is authorised to make the proposed instrument and any conditions the council is required to comply with before the instrument is made.

(3)  A determination of the community consultation requirements includes a determination under section 3.22 (or other provision of this Act) that the matter does not require community consultation.

…

(8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under Schedule 1, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that Schedule.

  1. In relation to the making of local environmental plans, s 3.36 of the EPA Act relevantly provides:

3.36   Making of local environmental plan by local plan-making authority

(1)  The Planning Secretary is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the planning proposal authority. The Planning Secretary is to consult the planning proposal authority, in accordance with the regulations, on the terms of any such draft instrument.

(2)  The local plan-making authority may, following completion of community consultation—

(a)  make a local environmental plan (with or without variation of the proposals submitted by the planning proposal authority) in the terms the local plan-making authority considers appropriate, or

(b)  decide not to make the proposed local environmental plan.

…

  1. In relation to development that needs consent, s 4.2 of the EPA Act provides:

4.2   Development that needs consent

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a)  such a consent has been obtained and is in force, and

(b)  the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

(2)  For the purposes of subsection (1), development consent may be obtained—

(a)  by the making of a determination by a consent authority to grant development consent, or

(b)  in the case of complying development, by the issue of a complying development certificate.

…

(5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.

  1. In relation to complying development, s 4.25 of the EPA Act provides that Division 4.5 “applies to complying development”.

  2. In relation to the validity of complying development certificates, s 4.31 provides:

4.31 Validity of complying development certificate

Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a complying development certificate is invalid if—

(a) proceedings for the order are brought within 3 months after the issue of the certificate, and

(b) the certificate authorises the carrying out of development for which the Court determines that a complying development certificate is not authorised to be issued.

  1. As reproduced above at [67] above, s 4.2(5) provides in relation to complying development that an environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development. Relevantly, Part 7 of the Codes SEPP identifies demolition of a dwelling as complying development. That is subject to the overriding requirements in cll 1.17A and 1.18 of the Codes SEPP.

  2. Clause 1.17A(1)(d) of the Codes SEPP provides in relation to the requirements for complying development for all environmental planning instruments as follows:

1.17A   Requirements for complying development for all environmental planning instruments

(1)  To be complying development for the purposes of any environmental planning instrument, the development must not—

…

(d)  be carried out on land that—

(i)  comprises an item that is listed on the State Heritage Register under the Heritage Act 1977 or on which such an item is located, or

(ii)  is subject to an interim heritage order under that Act or on which is located an item that is so subject, or

(iii)  is identified as an item of environmental heritage or a heritage item by an environmental planning instrument or on which is located an item that is so identified, or

…

(emphasis added)

  1. Clause 1.18(1)(c3) of the Codes SEPP provides in relation to the general requirements for complying development as follows:

1.18   General requirements for complying development under this Policy

(1)  To be complying development for the purposes of this Policy, the development must—

…

(c3)  not be carried out on land that comprises, or on which there is, a draft heritage item, and

…

(emphasis added)

  1. The terms “heritage item” and “draft heritage item” are defined in cl 1.5 of the Codes SEPP as follows:

heritage item means a building, work, archaeological site, tree, place or Aboriginal object identified as a heritage item in an environmental planning instrument.

draft heritage item means a building, work, archeological [sic] site, tree, place or aboriginal object identified as a heritage item in a local environmental plan that has been subject to community consultation, other than an item that was consulted on before 1 March 2006, but has not been included in a plan before 27 February 2009.

  1. “Community consultation” is defined in cl 1.5 of the Codes SEPP as follows:

community consultation means—

(a) consultation with the community under clause 4 of Schedule 1 to the [EPA] Act, or

(b)  public exhibition under section 66 of the [EPA] Act, as in force on 30 June 2009.

  1. In relation to minimum public exhibition periods for planning proposals, cl 4 in Division 1, Part 1 of Schedule 1 to the EPA Act provides:

4   Planning proposals for local environmental plans subject to a gateway determination (Division 3.4)

Minimum public exhibition period for planning proposals for local environmental plans subject to a gateway determination—

(a)  if the gateway determination for the proposal specifies a period of public exhibition—the period so specified, or

(b)  if the gateway determination for the proposal specifies that no public exhibition is required because of the minor nature of the proposal—no public exhibition, or

(c)  otherwise—28 days.

Challenge to the validity of the CDC: Construction of the expression “draft heritage item” in cl 1.5 of the Codes SEPP (Ground 1 of the summons; Ground 1 of the cross-summons)

  1. The parties agreed (uncontroversially) that all local environmental plans are environmental planning instruments, [4] and that most are subject to community consultation before they are made. It was agreed that the literal meaning of the words “a building, work, archaeological site, tree, place or aboriginal object identified as a heritage item” in the definition of “draft heritage item” in cl 1.5 of the Codes SEPP is wholly encompassed within the definition of “heritage item” in cl 1.5.

    4. EPA Act s 1.4 (definition of environmental planning instrument), s 3.13 (making of environmental planning instruments).

  2. In Ground 1 of its summons, Council contended that the CDC issued in relation to the 3 Berwick Street property is invalid on the basis that the property is a “draft heritage item” as defined in cl 1.5 of the Codes SEPP. The construction of the expression “draft heritage item” in cl 1.5 of also arises in Ground 1 of Belle Living’s cross-summons in which Belle Living contends that cl 1.5 is invalid to the extent that it purports to define a “draft heritage item”. I proceed to consider the issue raised in Council’s summons and in Ground 1 of Belle Living’s cross-summons in relation to the construction of the expression “draft heritage item” in cl 1.5 of the Codes SEPP.

  3. Council submitted that in the context of cl 1.17A of the Codes SEPP which makes reference to “heritage item”, “a draft heritage item must be something other than a heritage item in an environmental planning instrument”. Otherwise, “there would be no need to include the additional specification in cl 1.18 of the Codes SEPP” in relation to “draft heritage item”. Council said that applying the literal meaning of the definition of “draft heritage item” would render redundant the “clear drafting decision made in cll 1.17A and 1.18”. It would also make redundant the numerous separate references (submitted by Council to be in the number of 60) throughout the Codes SEPP to “draft heritage item”.

  4. Council submitted that the “relevant definition” must be interpreted in the context in which it appears in the SEPP. [5] In that exercise, the ordinary meaning of the words can also influence their construction. [6] The word that distinguishes a heritage item from a draft heritage item, namely “draft”, cannot be ignored. Council submitted that “draft” typically means a preliminary or proposed version of something. The only preliminary identification of a heritage item that is subject to community consultation is its identification in a planning proposal. Once an amendment to the local environmental plan (LEP) is effected, it ceases to be a “draft”.

    5. Kelly v R (2004) 218 CLR 216; [2004] HCA 12 at [103] (McHugh J).

    6. Rennie Golledge Pty Limited v Ballard (2012) 82 NSWLR 231; [2012] NSWCA 376 at [129] (Campbell JA).

  5. Accordingly, Council submitted that the different references to “heritage item” and “draft heritage item” in the Codes SEPP were intended to capture the heritage items listed, and those, as here:

  1. the subject of a proposal to amend the LEP to list the item; and

  2. in relation to which public consultation had concluded.

  1. Further, Council submitted that considered in the context of the exclusion of draft heritage items from the requirement for complying development for all environmental planning instruments in cl 1.18 of the Codes SEPP, these different references disclose a purpose of affording interim protection to an item whilst its status as a heritage item has not been finally determined. Council submitted that the date range provided in the definition of “draft heritage item” in cl 1.5 of the Codes SEPP as “other than an item that was consulted on before 1 March 2006, but has not been included in a plan before 27 February 2009” was “a long stop to ensure development was not precluded well into the future on an item never listed”. Whilst the draft LEP process was changed in 2008 with the introduction of the process of the preparation of a planning proposal followed by gateway determination, [7] that “did not change the purpose of the definition of draft heritage item in the Codes SEPP”. That purpose and the legislative choice to deal with heritage items and draft heritage items separately only has effect if the reference in the definition of “draft heritage item” to “a local environmental plan that had been subject to community consultation” includes a planning proposal that had been subject to community consultation, but not made.

    7. Environmental Planning and Assessment Amendment Act 2008 Sch1 item [11].

  2. At the hearing, Mr Lazarus SC for Council further submitted that:

…the very fact that the definition of “Draft heritage item” refers to a local environmental plan that has been subject to community consultation and the definition of community consultation quite specifically refers to cl 4 of Sch 1 [of the EPA Act] means, in my submission, that the intention was that the definition of “Draft heritage item” applied to a planning proposal.

  1. Belle Living submitted that the “anomaly” in relation to the definitions of “draft heritage item” and “heritage item” could only be resolved by applying the principle of expressio unius est exclusio alterius, that is, that the mention of one thing is to the exclusion of the other (the expressio unius principle). [8] As observed by Herzfeld and Prince, the rule is based on the presumption that a writer who has deliberately included specific things in relation to a subject matter intends to exclude those not mentioned. [9]

    8. P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters (Professional) Australia Limited) (Herzfeld and Prince) at [24.50].

    9. Herzfeld and Prince at [24.50].

  1. The expressio unius principle was considered by Isaacs J in his dissenting judgment in Le Mesurier v Connor [10] as follows:

…where the framers of a document have expressed their intentions as to a given subject, it cannot be said they have left their intentions on that subject to implication. Such a position is self-contradictory.

10. (1929) 42 CLR 481 at 512-513; [1929] HCA 41 (Isaacs J).

  1. Belle Living submitted that the expressio unius principle applies to the construction of cl 1.5 of the Codes SEPP such that the express reference to “heritage item” excludes the operation of the term “draft heritage item” in the same instrument as the subject matter dealt with in the definition of “draft heritage item” is “wholly subsumed” within the definition of “heritage item”. If both terms were to coexist in the same instrument, the term “heritage item” would be rendered otiose. This, Belle Living submitted, would be contrary to the need to construe a statute in a manner that “give[s] effect to harmonious goals”. [11]

    11. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ) (Project Blue Sky).

  2. Accordingly, Belle Living submitted that “the express reference to “heritage item” in the Codes SEPP would operate to displace the operation of the term “draft heritage item” such that references to “draft heritage item” must be read as conferring the meaning intended by “heritage item”.” By way of example, this would mean that cl 1.18(c3) of the Codes SEPP should be read as providing that in order for a development to be complying development, the development must not be carried out on land that comprises, or on which there is, a “heritage item”.

  3. In response, Council contended that the expressio unius principle has no present application as both “heritage item” and “draft heritage item” are expressly identified and defined in the Codes SEPP. This is not a case of express words excluding the implication of others. Ultimately, it is “much better to start with the language which Parliament has enacted, rather than draw inferences based on words which it has not employed”. [12] Further, Council submitted: “[h]ow a maxim of statutory interpretation can produce invalidity is as unexplained as it is novel”.

    12. Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) (2021) 106 NSWLR 41; [2021] NSWCA 246 at [70] (Leeming JA, Bathurst CJ and Bell P agreeing).

  4. In any event, Council submitted that even if the expressio unius principle were to be applied in the present case, it would support rather than detract from Council’s construction, the underlying rationale being that “it is a reasonable assumption that where legislation includes provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently”. [13] Applied to this case, that would mean that a “draft heritage item” was intended to be separate to and distinct from a “heritage item”. A court construing a legislative instrument must strive to give meaning to every word. [14] Here, the Court should strain against the construction advocated by Belle Living that would give no work to legal language. [15] Council also submitted that it is permissible to have regard to the language used in a defined term in order to construe a definition, and that Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [16] does not lay down an inflexible rule to the contrary. [17] Here, it was submitted, the word “draft” “clearly involves the notion of something which is proposed or preliminary in nature but not yet finalised”.

    13. Pearce at [4.43].

    14. Project Blue Sky at [71] (McHugh, Gummow, Kirby, and Hayne JJ), citing Commonwealth v Baume (1905) 2 CLR 405 at 414 (Griffith CJ); at 419 (O’Connor J); [1905] HCA 11.

    15. Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 at [77] (Leeming JA, McColl and Macfarlan JJA agreeing).

    16. (1994) 181 CLR 404 at 419; [1994] HCA 54 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

    17. Federal Commissioner of Taxation v Auctus Resources Pty Ltd (2021) 284 FCR 294; [2021] FCAFC 39 at [68]-[69] (Thawley J, McKerracher and Davies JJ agreeing); Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152 at [97]-[131] (Leeming JA).

  5. Accordingly, Council submitted, an item becomes a “draft heritage item” once it has been included as a proposed “heritage item” in a planning proposal that has been subject to community consultation, and ceases to be a “draft heritage item” once either a determination is made under s 3.35(4) of the EPA Act that the matter not proceed, a decision is made under s 3.36(2)(b) of the EPA Act to make the LEP, or the LEP (listing the item as a heritage item) is made under s 3.36(2)(a) of the EPA Act.

  6. Following the conclusion of the hearing, the parties filed supplementary submissions in relation to the extent to which, if at all, the second reading speeches for the Environmental Planning and Assessment Amendment Act 2008 (NSW) (2008 Amendment Act) and Environmental Planning and Assessment Amendment Act 2017 (NSW) (2017 Amendment Act) assist in the construction of “draft heritage item” in cl 1.5 of the Codes SEPP, as well as in relation to the proper approach to statutory construction in circumstances of “drafting mishaps”, or what Mr Lazarus described as the definition of “draft heritage item” not having “caught up appropriately with the amendments to the [EPA] Act”.

  7. I do not consider the explanatory material for the two Acts to assist in the question of construction which arises here. It is uncontroversial that the 2008 Amendment Act replaced the process for making a local environmental plan (by first exhibiting a draft plan), with the planning proposal and gateway process. In his second reading speech for the 2008 Amendment Act, Frank Sartor, Minister for Planning, Minister for Redfern Waterloo and Minister for the Arts, said in the Legislative Assembly on 12 August 2008 that: [18]

The key change is the introduction of the new Gateway process. As the name suggests, the Gateway will ensure there is sufficient justification early in the process to proceed with the planning proposal; this stops wasting time with planning proposals that are not credible. If it is agreed in principle, the planning proposal then can proceed to a full assessment. The Gateway determination settles what assessment is required to develop the details of the plan, including infrastructure needs, what community or agency consultation is required, and whether a public hearing is required. These provisions provide for flexibility and a strong emphasis on effective community consultation.

18. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 August 2008 at 7695.

  1. It is also uncontroversial, as made clear in the second reading speech, that the 2017 Amendment Act provided key amendments aimed at “improved community confidence and participation”, and to promote “more balanced and transparent decision making”. [19] The 2017 Amendment Act also set out the mandatory minimum community participation requirement for each type of planning decision under the Act.

    19. New South Wales Legislative Council, Parliamentary Debates (Hansard), 18 October 2017 at 70.

  2. None of this assists in resolving the issue of construction in relation to the expressions “draft heritage item” and “heritage item” in cl 1.5 of the Codes SEPP which commenced on 27 February 2009, other than to provide an explanation for the fact that in referring in the definition of “draft heritage item” to “a local environmental plan that has been subject to a consultation”, the Codes SEPP has not, as submitted by Mr Lazarus, “caught up appropriately” with the notions of planning proposals and gateway determinations introduced by the 2008 Amendment Act, such provisions having commenced on 1 July 2009.

  3. In relation to the question of “drafting mishaps”, as contended for by Belle Living, D Pearce, Statutory Interpretation in Australia (9th ed, 2019) provides at [2.45]:

Although the golden rule is still relied on to correct printing and drafting errors, it may also be possible to achieve that result by resorting to the modern approach to interpretation, which permits the court to take account initially of underlying purpose and context…In that regard, see New South Wales Crime Commission v Kelly [2003] NSWCA 245; (2003) 58 NSWLR 71 at [21]–[22] per Sheller JA in which the New South Wales Court of Appeal read the phrase ‘dependant of the person who will forfeit an interest in property under the order’ in s 24(1) of the Criminal Assets Recovery Act 1990 (NSW) as ‘dependant of the person who has an interest in property under the order’ to ensure that the purpose of the section was not defeated. See also Green v Minister for Climate Change, Environment and Water [2008] NSWLEC 48 at [8], where a contextual analysis of the provisions of a legislative scheme led to the word ‘since’ being interpreted as meaning ‘prior to’.

  1. Council submitted that the words “local environmental plan” in the definition of “draft heritage item” in cl 1.5 the Codes SEPP should be read having regard to the legislative context and purpose to mean “planning proposal”.

  2. In relation to “drafting mishaps”, Belle Living submitted that in order to achieve the construction contended for by Council, the Court would need to read the definition of “draft heritage item” in cl 1.5 of the Codes SEPP as including reference to the words “planning proposal” which do not otherwise appear anywhere in the Codes SEPP. The construction contended for by Council “would require the Court to go beyond correcting a simple, grammatical drafting error and instead require the Court to fill in gaps in the Codes SEPP by using language that is foreign to it.” Such an approach, it was submitted, would be contrary to that which was determined by the plurality in Taylor v Owners – Strata Plan No 11564 (Taylor), [20] and applied in subsequent High Court cases. [21]

    20. (2014) 253 CLR 531; [2014] HCA 9 (French CJ, Crennan and Bell JJ).

    21. See Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [104]; Minister for Immigration v EFX17 (2021) 271 CLR 112; [2021] HCA 9 at [28] (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ); H Lundbeck A/S v Sandoz Pty Ltd (2022) 96 ALJR 208; (2022) 399 ALR 184; [2022] HCA 4 at [114] (Kiefel CJ, Gageler, Steward and Gleeson JJ).

  3. In Taylor, the Court (French CJ, Crennan and Bell JJ) at [38] said:

38. The question whether the court is justified in reading a statutory provision as if it contained additional or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.

  1. Similarly, in HFM043 v Republic of Nauru (HFM043) [22] Kiefel CJ, Gageler and Nettle JJ at [24] said that “[t]he constructional task remains throughout to expound the meaning of the statutory text, not to remedy gaps disclosed in it or repair it.”

    22. (2018) 359 ALR 176; [2018] HCA 37 at [24] (Kiefel CJ, Gageler and Nettle JJ).

  2. The application of the modern approach to construction, Council submitted, can result in words being given a meaning different to their literal meaning to correct an error and give effect to the statutory purpose. This can extend to giving words the opposite meaning; for example in Green & Anor v Minister for Climate Change, Environment and Water,[23] Jagot J at [51] to [54] held, relying upon the legislative context, that the word “since” in a regulation should be read as “prior to”. Further, Council submitted, as Kiefel CJ and Keane J observed in R v A2, [24] when the “literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.” [25]

    23. [2008] NSWLEC 48 at [51]-[54] (Jagot J).

    24. R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [37] (Kiefel CJ and Keane J).

    25. See also Interpretation Act 1987 (NSW) s 33.

  3. Council also sought to rely on Roberts v Goodwin Street Developments Pty Ltd (Roberts) [26] and Kingston v Keprose Pty Ltd (Kingston) [27] in support of its construction of the reference to “local environmental plan” in the definition of “draft heritage item” which was submitted to be consistent with the Court’s task to “identify the target of Parliamentary legislation” and “see that it is hit”. [28]

    26. [2023] NSWCA 5 (Ward P, Kirk JA and Griffiths AJA).

    27. (1987) 11 NSWLR 404 (Hope, Priestley and McHugh JJA).

    28. Kingston at 424 (McHugh JA).

Conclusion in relation to the construction of “draft heritage item” in cl 1.5 of the Codes SEPP

  1. In relation to the construction of the expression “draft heritage item” in cl 1.5 of the Codes SEPP, I find as follows:

  1. Notwithstanding that the words “a building work, archaeological site, tree, place or aboriginal object identified as a heritage item” are encompassed within the definition of “draft heritage item” in cl 1.5 of the Codes SEPP, to give the two expressions – “heritage item” and “draft heritage item” – the same meaning would be to render redundant the separate definition of “draft heritage item” in the same clause of the SEPP. Having regard to cl 1.17A of the Codes SEPP, a draft heritage item must be something other than a heritage item identified in an environmental planning instrument. There would otherwise be no need to include the additional specifications in cl 1.18(1)(c3) of the Codes SEPP in relation to the general requirements for complying development under the SEPP “on land that comprises, or on which there is, a draft heritage item”. The approach contended for by Belle Living would also render otiose the numerous separate references throughout the Codes SEPP to “heritage item” and “draft heritage item”. [29] It is necessary to construe the Codes SEPP as a whole.

    29. See eg, cll 1.19, 2.2, 2.4, 2.6, 2.6B, 2.9, 2.11, 2.17, 2.19, 2.22, 2.25, 2.27, 2.29, 2.30A, 2.31, 2.32A, 2.32C, 2.33, 2.35, 2.37, 2.41, 2.42B, 2.46B, 2.47, 2.49, 2.50A, 2.51, 2.53, 2.59, 2.64, 2.66, 2.69, 2.72, 2.73, 2.75, 2.77, 2.84, 2.86, 2.101, 2.105, 2.107, 2.107B, 5.13.

  2. The construction advanced by Council is one which gives work to do to the adjective “draft” in the definition of “draft heritage item”, and affords interim protection to an item whilst its status as a heritage item has not been fully determined. The adjective “draft” plainly connotes something which is proposed or preliminary in nature, but not yet finalised.

  3. The reference in the definition of “draft heritage item” to the identification of the item in “a local environmental plan that has been subject to community consultation” can only be construed purposively, and in context, to include a planning proposal that has been the subject of community consultation, but not made.

  4. It is true, as submitted by Belle Living, that the definition of “draft heritage item” in cl 1.5 of the Codes SEPP is required to be read conformably with post-2017 amendments to the EPA Act and the LEP making process. The second reading speeches for both the 2008 Amendment Act and 2017 Amendment Act confirm that in introducing the relevant amendments, Parliament intended to prioritise community consultation in the LEP making process. However, that intention provides no particular assistance in resolving the construction issue here. The construction advanced by Council is one which gives effect to the purpose of cl 1.18 to ensure that to be complying development for the purposes of the SEPP, the development must “not be carried out on land that comprises, or on which there is, a draft heritage item”.

  5. The construction of the definition of “draft heritage item” in cl 1.5 contended for by Council by reading “local environmental plan” to include “planning proposal” is not one which is unduly strained. That is because, construed purposively, in context and having regard to the legislative history set out at [90] to [93] above, the reference in the definition of “draft heritage item” to a local environmental plan must be taken to include a planning proposal.

  6. It is true that the expressio unius principle has been frequently applied as an aid to construction. [30] However, it has also been said that it is one upon which it is “dangerous to rely”, [31] and which is to be applied with “extreme caution”. [32] In applying the principle, it is relevant to consider that extensive amendment to the Act in question (the EPA Act) may increase the risk of provisions being inconsistent unintentionally. [33] Ultimately, I conclude that the expression unius principle has no present application in circumstances in which the expressions “heritage item” and “draft heritage item” are separately defined. Even if the principle were to apply, the two definitions in cl 1.5 are in different terms, evincing an intention that they be construed differently.

    30. CJ Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400, 407; [1968] HCA 77 (Kitto J); O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1, 20 (Mason J in dissent); Riley v Commonwealth (1985) 159 CLR 1 at 12; [1985] HCA 82 (Gibbs CJ, Wilson and Dawson JJ); Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [20]–[22] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 at [95] (Kirby J in dissent).

    31. Cassaniti v Ball (2022) 109 NSWLR 348; [2022] NSWCA 161 at [57] (Gleeson, Leeming and Mitchelmore JJA), citing Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [34] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

    32. D Pearce, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths) (Pearce) at [4.44]-[4.45]; see also Herzfeld and Prince at [24.50] citing Houssein v Under Secretary of Department of Industrial Relations & Technology (NSW) (1982) 148 CLR 88, 94; [1982] HCA 2 (Stephen, Mason, Aickin, Wilson and Brennan JJ).

    33. Pearce at [4.44], citing Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151; [2007] FCAFC 197 at [15] (North J).

Challenge to the validity of the CDC: the question of discretion

  1. I have determined that the 3 Berwick Street property is the subject of a planning proposal that has been the subject of a gateway determination and public exhibition (my findings in relation to which are at [158] and [163] below), and is a “draft heritage item” within the meaning of cl 1.5 of the Codes SEPP. The CDC purports to authorise the carrying out of development, namely demolition, for which the CDC was not authorised to be issued.

  2. It arises then to consider the Court’s discretion in s 4.31 of the EPA Act to declare that the CDC is invalid. Section 4.31 provides that:

Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a complying development certificate is invalid…

  1. In Wollondilly Shire Council v Kennedy,[34] Pain J held that the Court’s power under s 4.31 to declare a CDC invalid is “relatively unconstrained”. Her Honour said at [88]-[90] (references omitted):

88. The determination which the Court may make under s 4.31 is analogous in some respects to deciding a jurisdictional fact although it is not expressed as consideration of a matter relevant to the exercise of jurisdiction by a certifier. While the Court is not deciding a matter of fact essential to the exercise of statutory jurisdiction, it is determining for itself whether the development which a CDC purports to authorise is development for which a CDC was authorised to be issued. This includes consideration and determination of the matters in s 4.28(3) which is headed Evaluation.

  1. In response, Council submitted that aside from the issue of time raised in relation to condition 2(a) of the gateway determination, Ground 3 of Belle Living’s cross-summons appeared to be that the alleged breaches of conditions of the gateway determination precluded Council from making the LEP as the alleged breaches resulted “in critical information being omitted”. Council submitted that the second planning proposal placed on exhibition was not simply the explanation of the intended effect of the proposed instrument; it included a series of attachments which included much of the information that Belle Living claimed was missing. That, Council submitted, invited the question whether, if information was provided, how it could be said that the community was not given an opportunity to make submissions. In any event, irrespective of any breach, if the community was given an opportunity to make submissions, s 3.34(8) precluded any finding of invalidity.

  2. In relation to Belle Living’s challenge to Council’s alleged failure to comply with condition (1)(c), (d), (e), (g), (i) and (j) of the gateway determination, I find as follows:

  1. In relation to condition (1)(c), the placing of the second planning proposal on public exhibition followed receipt by Council of advice in the Danis report that the 3 Berwick Street property meets the criteria for listing as a local heritage item. The second planning proposal and attachment 4 detailing the application of the inclusion and exclusion criteria recorded, in accordance with the advice in the Danis report, that the following “relevant criteria” of the NSW Heritage guidelines had been met: (a) historical significance; (b) historical association; (c) aesthetic significance; (f) rarity; and (g) representativeness.

  2. In relation to condition 1(d), neither the second planning proposal nor any of the documents attached to it “confirm[ed] whether both sites satisfy criterion (e) research potential” of the NSW Heritage guidelines. However, attachments 2 and 4 to the second planning proposal included a “heritage data form” which provided a statement of the significance of the 3 Berwick Street property; historical notes as to the history of the 3 Berwick Street property; and a table “clearly identifying which listing criteria [in the NSW Heritage guidelines] have been satisfied”. Condition 1(d) only required identification of the criteria which had been satisfied, rather than a demonstration that each of the criteria applied exhaustively.

  3. In relation to condition 1(e), a comparative analysis included at attachment 6 to the second planning proposal compared the 3 Berwick Street property against similar buildings in “the suburb or local government area (or broader area as appropriate)” (emphasis added). Belle Living’s submission that the comparison should have been at a broader level is a complaint in relation to the gateway determination, rather than Council’s compliance with condition 1(e) of the gateway determination. Ultimately, Belle Living’s criticism of the inclusion of properties in the comparative analysis attached to the second planning proposal goes to the merits of the proposed heritage listing of the 3 Berwick Street property, and not the lawfulness of the second planning proposal and its progression.

  4. In relation to condition 1(g), the second planning proposal did “update the discussion regarding the [Codes SEPP]”. It stated that “[t]he heritage listing of these properties will reduce the scope of applicability of the [Codes SEPP]…Nevertheless, this Proposal is consistent with the Codes SEPP as it was designed to have a limited impact on buildings with heritage values”. However, it did not as provided in condition 1(g) “clarify that certain exempt development provisions apply to heritage items” (emphasis added).

  5. In relation to condition 1(i), the second planning proposal did not “provide information to address the relevant provisions of the [RCSP] relating to the protection of local heritage”. The RCSP was in evidence. I accept Mr Lazarus’ submission that “there is nothing in [the RCSP] that would tell [Council] how it is that a heritage listing planning proposal such as this one, ought to be explained in any different manner to the manner in which it was explained in the [second] planning proposal that went on public exhibition”. Belle Living did not identify what provisions (if any) of the RCSP were relevant, nor how the failure to address them could be material. Rather, in its correspondence of 23 April 2023, Belle Living complained of specific statements, said to be contained in the RCSP, as having been “ignored” in the second planning proposal. However, those statements were in fact extracted from a Council document titled “Local Strategic Planning Statement” to which the second planning proposal made reference.

  6. In relation to condition 1(j), as submitted by Council, no additional discussion or assessment was required by condition 1(j). Rather, the discussion and assessment were to make reference to both the 1 Berwick Street property and the 3 Berwick Street property. That was done by attaching to the second planning proposal separate heritage inventory sheets, and therefore assessments, comparative analyses, and inclusion/exclusion criteria sheets for each of the properties. The second planning proposal provided separate discussion in relation to each of the 1 and 3 Berwick Street properties. The second planning proposal which was exhibited to the public identified the purpose of the amendment to list the two dwellings, identified and described each of the two dwellings and provided the heritage assessments relied upon by Council in relation to each of the two dwellings.

  1. Overall, I find that the conditions of the gateway determination were substantially satisfied:

  1. by an assessment addressing the inclusion/exclusion criteria included as attachment 4 to the second planning proposal;

  2. by the heritage inventory sheet attached to the second planning proposal identifying the relevant listing criteria which were satisfied;

  3. by comparative analysis at attachment 6 to the planning proposal against similar buildings in the suburb or local government area; and

  4. by reference to and the inclusion of an assessment of each of the 1 and 3 Berwick Street properties.

  1. Further, even if Council failed to comply with some aspects of the conditions of the gateway determination, it does not follow that the 3 Berwick Street property was not a draft heritage item on the date the CDC was issued. At it its highest, that circumstance would have prevented Council from taking further action to advance the second planning proposal. However, it would not alter the fact that the element of community consultation in the definition of a “draft heritage item” in cl 1.5 of the Codes SEPP was satisfied. I address the matter of community consultation at [152] to [158] and [164] to [166], and s 3.34 of the EPA Act at [159] to [154] below.

Condition 2(a) of the gateway determination

  1. In relation to condition 2(a) of the gateway determination, Belle Living contended that the second planning proposal was only exhibited for 19 working days, instead of the minimum 20 working days required under this condition due to it having been placed on exhibition on the Anzac Day public holiday. The failure of Council to observe the minimum public exhibition period prescribed in condition 2(a), Belle Living submitted, resulted in the second planning proposal being publicly exhibited for 72 hours less than it ought to have been (such calculation including an additional weekend). Belle Living submitted that “there was a realistic possibility that additional submissions for or against the proposal would have been received by Council from the community during that additional period, had it complied with the requirement imposed by Condition 2(a)”.

  2. Community consultation is defined in the Codes SEPP as “consultation with the community under cl 4 of Schedule 1 to the Act”. Clause 4 of Schedule 1 provides that the minimum public exhibition period where, as here, the gateway determination specifies a period, is “the period so specified” (see above at [75]).

  3. Council submitted that consultation need only occur “under” cl 4 of Schedule 1, rather than “in accordance with” the clause. The term “under” most commonly takes the meaning of “in pursuance of”, “under the authority of”, “having the source of”, or “drawing legal efficacy from”. [59] Council submitted, and I find, that:

    59. Hill v Blacktown City Council (2007) 154 LGERA 418; [2007] NSWLEC 401 at [36(4)] (Jagot J).

  1. on 13 December 2022, Council resolved to:

exhibit the draft Planning Proposal following ‘Gateway Determination’ in accordance with conditions of the Gateway Determination and bring back a report to Council detailing the results of the community consultation for final consideration by Council’;

  1. after the gateway determination was made by the Minister, there was exhibited to it the second planning proposal;

  2. on 16 April 2023, Council notified Belle Living that exhibition was occurring in compliance with the condition of the gateway determination that required community consultation; and

  3. Council placed on exhibition the gateway determination together with the second planning proposal.

  1. Further, Council submitted that “the authority and power to exhibit” was the gateway determination, its resolution of 13 December 2022 being contingent upon that determination. Irrespective of whether there was strict compliance with the time period(s) specified in cl 4 of Schedule 1 to the EPA Act, the second planning proposal was subject to community consultation “under” cl 4 of Schedule 1. In any event, exhibition for a period of 19 working days was sufficient to discharge Council’s public exhibition obligations under the gateway determination. The EPA Act does not impose a standard of absolute compliance with minimum time periods for consultation.

  2. In Johnson v Lake Macquarie City Council (Johnson), [60] Stein J (at 341) held in relation to the advertisement of a development application that “strict or substantial compliance” with a time period for public exhibition was what was required by the EPA Act. [61] His Honour concluded (at 341-342) that:

In my opinion cl 59(2) requires strict or substantial compliance as a pre-condition to consideration by the Council. By allowing only 14 days instead of the required 28 days, the statutory purpose was unfulfilled. Clearly there could not be said to be substantial compliance with the Regulation. It is not a matter of one or two days less than the required exhibition period and time for submissions, but only one-half of the statutory period was provided.

60. (1996) 91 LGERA 331.

61. Approved in Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel [2012] NSWLEC 166 at [15] (Biscoe J).

  1. The definition of “community consultation” in the Codes SEPP incorporates cl 4 of Schedule 1 to the EPA Act which Council submitted must be construed in its statutory context. [62] Council submitted that that statutory context, in light of s 3.34(8) of the EPA Act and the observations of Sackville AJA (with whom Macfarlan and Gleeson JJA agreed) at [107] in De Angelis v Pepping [63] (De Angelis) (which I address below at [159] to [162]), “is not one that requires strict compliance, but rather seeks to ensure that people have a genuine opportunity to make a submission.”

    62. One.Tel Ltd v Australian Communications Authority (2001) 110 FCR 125; [2001] FCA 54 at [64] (Hill J).

    63. [2015] NSWCA 236 at [107] (Sackville AJA, Macfarlan and Gleeson JJA agreeing).

  2. In relation to compliance with condition 2(a) of the gateway determination, I find as follows:

  1. I do not consider that condition 2(a) imposes a requirement for strict compliance with the minimum exhibition period, but rather a requirement that people have a genuine opportunity to make a submission in relation to the second planning proposal. Here, the concern raised by Belle Living, concerning the period of public exhibition, was in relation to non-compliance by one working day because of the Anzac Day public holiday. I find that Council’s compliance with the required compliance period at the locations specified at [46] above meets the test of substantial compliance articulated by Stein JA in Johnson, a one-working day shortfall in the exhibition period at those locations not being such as to deprive the community of a chance to make submissions. This is particularly so in circumstances in which the second planning proposal remained on exhibition to the public on Council’s Your Say webpage at https/ on the Anzac Day public holiday.

  2. Belle Living’s complaint in relation to Council’s non-compliance with the minimum exhibition period overlooks that while Anzac Day was a public holiday, the second planning proposal and related documents remained publicly available on Council’s website on Anzac Day. The availability of the proposal and related documents on Council’s website provided to the community “a genuine opportunity” to make a submission in relation to the planning proposal over a period of 26 days, spanning the period 17 April 2023 to 12 May 2023.

  3. I am satisfied that Council substantially complied with the community consultation requirement in cl 4 of Schedule 1 to the EPA Act. Applying the maxim of de minimis non curat lex, any non-compliance by a single working day might be disregarded.

  4. I do not find, contrary to the submission of Belle Living, that “there was a realistic possibility that additional submissions for or against the proposal would have been received by the Council from the community during that additional period”, or that the community was denied “a meaningful opportunity to make informed submissions”.

Whether failure to comply with conditions of the gateway determination prevents the instrument from being made

  1. Moreover, and in any event, to the extent that there was a failure on the part of Council fully to comply with conditions or aspects of conditions of the gateway determination, s 3.34(8) of the EPA Act (extracted at [65] above) provides that any such failure “does not prevent the instrument from being made or invalidate the instrument once it is made”.

  2. Section 3.34(8) evinces an intention that a failure to comply with community consultation requirements is not such as to render the instrument, once made, invalid. I accept Council’s submission that s 3.34(8) “acknowledges that there may be non-compliances with requirements for community consultation, provided the community has not been deprived of procedural fairness.” As the Court observed in Boydtown Pty Ltd v Minister for Planning and Public Spaces [64] at [192]:

… the effect of s 56(8) (now s 3.34(8)) of the EPA Act is that a failure to comply with a requirement of a gateway determination under s 56 does not prevent the instrument from being made, or invalidate the instrument.

64. [2023] NSWLEC 47 (Pritchard J).

  1. In De Angelis Sackville AJA (at [107]) (with whom Macfarlan and Gleeson JJA agreed) said in relation to the former s 56(8), now s 3.34(8) of the EPA Act, and a failure by a relevant planning authority to comply fully with community consultation requirements:

107.  In my view, the drafting of s 56(8) reflects awareness of the tendency of courts to regard public notification requirements in relation to planning decisions as preconditions to the valid exercise of power. The drafter has been careful not to make the validity of an instrument dependent on strict compliance with requirements imposed, not by statute or subordinate legislative instruments, but by reference to relatively informal Departmental documents. The second sentence of s 56(8) recognises that a failure by a relevant planning authority to comply fully with community consultation requirements will not necessarily have any material effect on the opportunity for interested persons to make submissions on the planning proposal. Understood in this way, s 56(8) is consistent with the statutory objective of providing “increased opportunity for public involvement and participation” in the planning process. The provision attempts to ensure that there is a genuine opportunity for interested persons to make submission on a planning proposal, but it does so without employing the blunt mechanism of invalidity for every breach of community consultation requirements, no matter how inconsequential the breach.

  1. As Sackville AJA observed in De Angelis (at [109]) the relevant question is whether the community had been “given the opportunity to make submissions”.

  2. I am satisfied that to the extent there was a failure fully to comply with any condition, or aspect of a condition, of the gateway determination, the community has been given the opportunity to make submissions, and there is no relevant failure such as to prevent the second planning proposal being made or to invalidate the second planning proposal.

The 3 Berwick Street property and the dwelling house on it are not capable of being a “draft heritage item” (Ground 4 of the cross-summons)

  1. In the alternative to Grounds 1 to 3 of its cross-summons, in Ground 4 Belle Living alleges that neither the property at 3 Berwick Street nor the dwelling on it is capable of being a “draft heritage item” as defined in cl 1.5 of the Codes SEPP. In relation to Ground 4, Belle Living submitted that it presently has a CDC granting approval for the demolition of all structures on the 3 Berwick Street property. The only asserted basis for invalidity of the CDC was that the property and/or the dwelling house on it is a “draft heritage item”.

  2. Further, Belle Living submitted:

  1. The definition of “draft heritage item” in cl 1.5 of the Codes SEPP provides that any such item must be identified in a “local environmental plan that has been subject to community consultation”. Clause 1.5 of the Codes SEPP defines “community consultation” as:

  1. consultation with the community under cl 4 of Schedule 1 to the EPA Act; or

  2. public exhibition under s 66 of the Act, as in force on 30 June 2009.

  1. Clause 4(a) of Schedule 1 provides for minimum public exhibition periods for LEPs subject to a gateway determination: “if the gateway determination for the proposal specifies a period of public exhibition – the period so specified”.

Read together, the definitions of “draft heritage item” and “community consultation” in cl 1.5 of the Codes SEPP do not contemplate an item falling within the definition of “draft heritage item” unless it has been the subject of community consultation in compliance with cl 4 of Schedule 1 to the EPA Act. The “clear language” adopted in the definition of “draft heritage item” in cl 1.5 of the Codes SEPP “evince[s] a legislative intention that the minimum public exhibition periods provided for in cl 4 of Schedule 1 to the EPA Act be observed”. Those words, it was submitted, “leave no room for the operation of any doctrine of ‘substantial compliance’ with the requirements of the minimum public exhibition periods provided for in cl 4 of Schedule 1 to the EPA Act”.

  1. Even if the concept of “substantial compliance” applies to the question of compliance with the requirement of community consultation in the definition of “draft heritage item” in cl 1.5 of the Codes SEPP, as well as with s 3.34 of and cl 4 of Schedule 1 to the EPA Act, the observations made by the Court of Appeal in De Angelis at [15], [104] and [107] “suggest that the scope of its application must be viewed through the lens of the objects of the EPA Act”. Relevantly, s 1.3(j) of the EPA Act provides that the objects of the Act include “to provide increased opportunity for community participation in environmental planning and assessment”;

  2. as submitted in relation to Ground 3 of Belle Living’s cross-summons, Council did not comply with the minimum period of 20 working days specified in condition 2(a) of the gateway determination in relation to the public exhibition of the second planning proposal, resulting in a reduction in the time the public had to make submissions concerning the proposal by a period of some three days or 72 hours. For Council to assert that there was substantial compliance with the minimum public exhibition period such that it could amend the RLEP to list the 3 Berwick Street property as a local heritage item without remedying such deficiency “would run contrary to the objects of the EPA Act set out in s 1.3(j)”.

  1. I have concluded at [158] that Council achieved substantial compliance with the minimum public exhibition period (especially in circumstances in which the second planning proposal remained on exhibition on Council’s website on the Anzac Day public holiday). Accordingly, I also find that any failure to meet that minimum public exhibition period at Council’s customer service centre, Lionel Bowen Library, Malabar Library and Randwick Library by one working day by reason of a public holiday does not prevent the 3 Berwick Street property from meeting the definition of “draft heritage item” in cl 1.5 of the Codes SEPP.

Conclusion

  1. Council has been successful on its summons, and Belle Living unsuccessful on the grounds raised in its cross-summons. I have summarised my reasons at [6] above. It follows that I will make an order that Belle Living pay Council’s costs of the proceedings.

Orders

  1. I make the following orders and declarations:

  1. A declaration that Complying Development Certificate CCDC-3BER/2022, issued pursuant to s 4.28(6) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the second respondent, Abdul Hammoud of Certicorp Pty Ltd, on 7 June 2023 to the first respondent Belle Living Pty Ltd in relation to the property at 3 Berwick Street, Randwick NSW 2031, being Lot B DP 313214, is invalid.

  2. A declaration that in breach of s 9.37 of the EPA Act, the first respondent failed to comply with the development control order given by the applicant Randwick City Council on 9 June 2023 pursuant to s 9.34 of the EPA Act and order no 4 in the table to Part 1 of Schedule 5 to the EPA Act requiring the cessation of all demolition works at 3 Berwick Street, Randwick NSW 2031, being Lot B DP 313214.

  3. A declaration that in breach of s 4.2 of the EPA Act, the first respondent has carried out unauthorised works, being the partial demolition of the dwelling at 3 Berwick Street, Randwick NSW 2031, being Lot B DP 313214.

  4. An order that the first respondent is restrained from:

  1. by itself, or by its employees, contractors, servants, or other agents,

  2. carrying out demolition work to the dwelling house and dental surgery located at 3 Berwick Street, Randwick NSW 2031, being Lot B DP 313214,

unless and until such time as it obtains the grant of a development consent permitting that work.

  1. An order dismissing the first respondent’s cross-summons filed on 16 June 2023.

  2. The first respondent to pay the applicant’s costs of these proceedings.

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Endnotes


Decision last updated: 04 October 2023

Most Recent Citation
Cases Cited

61

Statutory Material Cited

6

Bass v Permanent Trustee Co Ltd [1999] HCA 9
Martin v Taylor [2000] FCA 1002
Bass v Permanent Trustee Co Ltd [1999] HCA 9