Re Dr Judy M Edwards;
[2003] WASCA 148
•27 JUNE 2003
RE DR JUDY M EDWARDS; EX PARTE PEARLS PTY LTD [2003] WASCA 148
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 148 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:1885/2002 | 8 APRIL 2003 | |
| Coram: | SCOTT J WHEELER J HASLUCK J | 27/06/03 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged Application for declaration dismissed | ||
| A | |||
| PDF Version |
| Parties: | PEARLS PTY LTD (ACN 008 396 825) THE HONOURABLE DR JUDY M EDWARDS |
Catchwords: | Administrative law Judicial review of ministerial decision Heritage of Western Australia Act 1990 Streeter's Jetty, Broome and land adjacent thereto Heritage register Extension of time for permanent registration Definition of "place" in Heritage of Western Australia Act 1990 |
Legislation: | Heritage of Western Australia Act 1990, s 46, s 47, s 51, s 53(2)(b) |
Case References: | Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2000] QCA 378; [2001] 2 Qd R 504 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Buck v Bavone (1976) 135 CLR 110 Craig v State of South Australia (1995) 184 CLR 163 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 Miller-Mead v Minister of Housing & Local Government [1963] 2 QB 196 Minister for Immigration, Local Government & Ethnic Affairs v Taveli (1990) 94 ALR 177 R v Wallis, Ex parte Employers Association of Wool Selling Brokers (1945) 78 CLR 529 Re Kierath, Minister for Heritage; Ex parte City of Fremantle (2000) 22 WAR 342 Winn v Director General of National Parks & Wildlife [2001] NSWCA 17 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE DR JUDY M EDWARDS; EX PARTE PEARLS PTY LTD [2003] WASCA 148 CORAM : SCOTT J
- WHEELER J
HASLUCK J
PEARLS PTY LTD (ACN 008 396 825)
Applicant
AND
THE HONOURABLE DR JUDY M EDWARDS
Respondent
Catchwords:
Administrative law - Judicial review of ministerial decision - Heritage of Western Australia Act 1990 - Streeter's Jetty, Broome and land adjacent thereto - Heritage register - Extension of time for permanent registration - Definition of "place" in Heritage of Western Australia Act 1990
(Page 2)
Legislation:
Heritage of Western Australia Act 1990, s 46, s 47, s 51, s 53(2)(b)
Result:
Order nisi discharged
Application for declaration dismissed
Category: A
Representation:
Counsel:
Applicant : Mr C L Zelestis QC & Mr G R Dean
Respondent : Mr G T W Tannin SC & Mr H V Nguyen
Solicitors:
Applicant : G Dean & Associates
Respondent : Crown Solicitor
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2000] QCA 378; [2001] 2 Qd R 504
Case(s) also cited:
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Buck v Bavone (1976) 135 CLR 110
Craig v State of South Australia (1995) 184 CLR 163
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
Miller-Mead v Minister of Housing & Local Government [1963] 2 QB 196
Minister for Immigration, Local Government & Ethnic Affairs v Taveli (1990) 94 ALR 177
(Page 3)
R v Wallis, Ex parte Employers Association of Wool Selling Brokers (1945) 78 CLR 529
Re Kierath, Minister for Heritage; Ex parte City of Fremantle (2000) 22 WAR 342
Winn v Director General of National Parks & Wildlife [2001] NSWCA 17
(Page 4)
1 SCOTT J: In this matter an order nisi for a writ of certiorari was granted by Wheeler J on 30 July 2002. Wheeler J ordered that an application for a declaration arising out of the same matter should be heard at the same time before the Full Court.
2 The grounds for the two applications are:
"A. By letter dated 27 March 2002, the Respondent notified the Applicant that the Respondent had determined that Lot 3067, being part of the land comprised in Certificate of Title 2036 Folio 315 ('land'), was to be entered in the Register of Heritage Places ('Register') as part of the entry of Streeter's Jetty on a permanent basis.
B. The determination is ultra vires and void because:
B.1 the Respondent lacked power under section 47 of the Act to include the land in the Register;
B.2 the Respondent lacked power to include the land in the Register as land adjoining a place of cultural historical significance because sections 29 and 33 of the Act provide a complete code for land that is associated with a registered place;
B.3 the decision to include the land in the Register was unreasonable;
B.4 the interim registration ceased to have effect and the Respondent lacked power to include the land in the Register on a permanent basis."
4 It is not in issue that Streeter's Jetty itself has been properly registered in the Register of Heritage Places pursuant to s 46 of the Heritage of Western Australia Act 1990 ("the Heritage Act").
5 The dispute in this matter arises because of the inclusion in the Register of part of lot 3067 in the Heritage Register.
(Page 5)
6 A surveyor's diagram showing the jetty and the portion of lot 3067 the subject of controversy in this application is annexed to these reasons. As that survey indicates, the area concerned comprises 1049 square metres of land running from the western end of the jetty through to Dampier Terrace. It should be made clear at the outset of these reasons that the application only relates to that portion of lot 3067 shown on the diagram attached hereto and not to the area to the east of that land over which Streeter's Jetty is constructed.
7 The order nisi for certiorari and the application for declaratory relief in this matter challenges the decision of the respondent to enter in the Register under s 47 of the Heritage Act, the portion of lot 3067 to which I have referred. It is rightly contended that the land in question is vacant land privately owned by the applicant and which the applicant contends in due course it wishes to develop. The applicant maintains that it is, and always has been, prepared to grant access to Streeter's Jetty by granting an easement along the southern boundary of lot 3067 which would facilitate public access to the jetty structure itself. As can be seen on the attached diagram, however, the respondent has entered in the Register a more extensive portion of the lot.
8 The applicant has placed before the Court a document referred to in the assessment documentation of reasons for entry on the Register of Heritage Places. The document prepared by John Taylor Architect entitled "Streeter's Jetty Conservation Plan" was prepared for the Shire of Broome in February 1999. In particular, the history of Streeter's Jetty is shown at section 2.01 of the document. The document provides a detailed historic analysis of the history of Streeter's Jetty and the establishment of a company known as Streeter and Co in Broome. That company is the predecessor of a firm later called Streeter and Male which remains a functioning business in Broome to this day.
9 It is not possible to reproduce the whole of Mr Taylor's document in these reasons, but a portion of it refers to the history surrounding the construction of Streeter's Jetty. The document refers to the fact that in August 1883 Mr G S Streeter was amongst pearlers and others who were pushing for improvement of facilities in Broome. The record refers to a meeting held in the Pearlers Association rooms which proposed that "something substantial … should be done with regard to facilities for landing cargo". The meeting unanimously resolved that the government should be called upon to construct a "substantial jetty that would benefit the whole community, pearlers included, a jetty where steamers and other craft could come alongside and float".
(Page 6)
10 The document goes on to outline the events that followed. It seems that the government did not take immediate steps to provide such a jetty which caused resentment in Broome. In 1895 the government surveyed the harbour at Broome with a view to constructing a jetty at Mangrove Point and "a tramway thereto along the foreshore". At that stage it was anticipated that the work which was described as "Broome jetty and approaches" would cost £10,000. The estimates for the year ending 30 June 1886 provided for £6,000 but with no invitation to tender for the works until March 1896.
11 On 30 June 1887 what is referred to as "the almost complete tramway" was described as extending one mile and 50 chains (2.6 kilometres) from the new jetty to the township "with branch to Streeter's Jetty". The tramway was two feet (0.6 metres) gauge with steel sleepers and 25-pound (11.3 kilogram) rails. The stock jetty comprised timber piles and superstructure of 2953 feet (900 metres) long by 15 feet (4.5 metres) wide with a T-head 340 feet by 30 feet (104 metres by 9 metres). The document goes on to say that the tramway was completed in March 1898 and that in the same month the SS Sultan berthed at the stock jetty and took away 50 head of cattle from Streeter's Station. As to the route taken by the tramway, the document says, "After leaving the stock jetty and passing along the foreshore it (the tramway) ran along Hamersley Street and turned into Napier Terrace and then into Dampier Terrace before terminating right outside the firm's business premises where the branch line headed for Streeter's Jetty."
12 The document finally refers to the fact that Streeter's Jetty was in place by 1897 but that there is no information available concerning its construction. The document also refers to the fact that no licence or permit appears to have been required and no evidence points to any lease having been granted over the jetty surrounds prior to 1899.
13 It should be added that in the course of these proceedings and as part of the documentation presented to this Court there is no evidence as to where the tramway ran after leaving Streeter's Jetty to the point where it joined the line on Dampier Terrace. Nonetheless, the fact of the matter is that whatever part of lot 3067 the tramway crossed, and whether it be by way of a straight line or a curved lined, the evidence establishes that the line on Streeter's Jetty joined the main line on Dampier Terrace by crossing lot 3067.
(Page 7)
14 It is then necessary to consider the statutory provisions and the steps that were taken leading to the permanent entry in the Heritage Register to which I have earlier referred.
15 By s 5 of the Heritage Act the Heritage Council of Western Australia ("the Council") is established.
16 One of the important provisions in the Heritage Act for the purposes of this application is the definition of "place":
"'Place' means an area of land sufficiently identified by survey, description or otherwise as to be readily ascertainable, and includes -
(a) an area of land situate below low water mark on the sea shore or on the bank of tidal waters, or in the bed of any watercourse, lake or estuary;
(b) any works or buildings situated there, their contents relevant to the purposes of this Act and such of their immediate surroundings as may be required for the purposes of the conservation of those works or buildings; and
(c) as much of the land beneath the place as is required for the purposes of its conservation.
'Cultural heritage significance' means, in relation to a place, the relative value which that place has in terms of its aesthetic, historic, scientific, or social significance, for the present community and future generations."
17 Section 4 of the Heritage Act provides:
"4. Crown bound, and the objects of this Act
(1) This Act binds the Crown.
(2) The Council shall be an instrumentality of the Crown in right of the State.
- (3) The objects of this Act, with due regard to the rights of property ownership, are -
(Page 8)
- (a) to identify, conserve and where appropriate enhance those places within Western Australia which are of significance to the cultural heritage;
(b) in relation to any area, to facilitate development that is in harmony with the cultural heritage values of that area; and
(c) to promote public awareness as to the cultural heritage, generally."
18 By s 6 of the Heritage Act responsibility for the administration of the Act is vested in the respondent who by s 6(1) of the Act is to be "advised and assisted by the Council".
19 The important provision so far as these applications are concerned is s 47 of the Heritage Act which provides:
"47. Criteria for entry in the Register
(1) Subject to this Part, where the Minister is of the opinion, having regard to any advice given by the Council in relation to that place and to any report of the Council as to submissions made to the Council under subsection (3) -
(a) that a place -
(i) is of cultural heritage significance; or
(ii) possesses special interest related to or associated with the cultural heritage,
and is of value for the present community and future generations; and
- (b) that the protection afforded by this Act is appropriate notwithstanding that the place may be afforded protection by the operation of any other written law or law of the Commonwealth,
(Page 9)
- the Minister may direct the Council to enter that place in the Register, either as an interim registration or on a permanent basis, and effect shall be given to the direction in accordance with section 50 or 51 as may be specified.
- (2) Without prejudice to the generality of subsection (1) and with the intent that there should be compiled a comprehensive register of the heritage rather than merely an index of examples, in considering the significance which any place may have to the cultural heritage of the State regard may be had to -
(a) any distinctive features or scarcity value, the character of the environs of the place, its landscape or townscape value and, in the case of a building, its beauty and proportions, the degree of unity of its materials, design and scale, and any contribution it makes to the significance of any area, precinct, group of buildings, or amenity of which it forms part, or to its setting or the setting of any other place or feature;
(b) any strong association which the place has with any historic personage or significant event or discovery or any development or cultural phase, or whether or not the place provides a notable example of a particular period or type important for general educational, architectural or archaeological reasons that distinguish it from other such examples, or has intrinsic merit and is commonly agreed to be -
(i) a work of art in itself that enriches the environment; or
(ii) held in high public esteem or sentiment;
- and
(Page 10)
- (c) in the case of places of particular scientific or other special interest, the extent to which the place has contributed, or may be likely to contribute, to knowledge or research,
but a place shall not be excluded from the Register on the ground only that like examples are already included.
- (3) In advising the Minister as to the significance of any place the Council shall consider any submissions which may be made -
(a) as to such places generally, by the Australian Heritage Commission, the National Trust of Australia (WA) Inc., local governments and community organizations concerned with the cultural heritage generally; and
- (b) in relation to any particular place, by -
(i) the owner;
- (ii) any occupier;
(iii) the local government of the district in which the place is situate; and
(iv) any other person having a special knowledge of, or interest in, that particular place,
as to its relevance to the cultural heritage in the State.
(5) The Council shall publish by public advertisement any advice given by it to the Minister under this section or sections 49, 52 or
(Page 11)
- 53 in relation to the entry in the Register of a place vested in the Crown, or in a person on behalf of the Crown, in right of the State."
20 A further important provision is s 53:
"53. Time limit on registration procedures
(1) Subject to subsection (2), where -
(a) a period of 12 months has elapsed since the date of publication in the Gazette of the advertisement required under section 49(1);
(b) subsection (2) or (3) does not apply; and
(c) the place referred to in that advertisement, or a specified portion of that place, has not been entered in the Register (except as an interim registration),
the Council shall, by a notice by way of public advertisement published in manner similar, where practicable, to that in which the advertisement under section 49(1) was published, give notice that the proposed entry has not been, and will not be, made in relation to that place or that specific portion of that place, setting out sufficient particulars to identify the land, and shall cause the entry made at the time of interim registration to be removed.
(2) Where -
(a) a place is vested in the Crown, or in a person on behalf of the Crown, in right of the State; or
(b) the persons required by section 46(4)(b) to give consent to the amendment of an entry relating to the place have each given written notice to the Council consenting to the continuance of the interim registration and that consent has not been withdrawn,
(Page 12)
- an entry in the Register made at the time of interim registration continues to have effect until the Minister, by notice in writing to the persons then required pursuant to section 46(4) to be consulted or to give consent to an amendment, gives notice that the entry will be removed on the expiry of a period of not less than 12 months after the giving of that notice and that period has elapsed.
- (3) Where the Minister recommends that the consideration of a matter to which subsection (2) does not apply but which is the subject of an advertisement under section 49(1) should be permitted to continue beyond the period referred to in subsection (1)(a), the Governor may by regulation extend that period from time to time for such further period as the Governor thinks fit and make such further provision as may be necessary or desirable to enable the consideration of the matter to be concluded."
21 Senior counsel for the applicant, in support of this applicant, relied upon three fundamental propositions, namely:
(1) that the purported inclusion in the Register as part of a permanent entry of a place of a portion of lot 3067 resulted from an excess of power;
(2) that the purported inclusion in the Register of part of a permanent entry of a place of a portion of lot 3067 was unreasonable and demonstrated legal error because the exercise of that power was so foreign to the proper exercise of power under the Act as to be beyond power; and
(3) that the purported extension of time of the interim registration of the place was invalid because there was no power to extend interim registration beyond the one-year period provided for in the Act. Accordingly, it was contended that a purported extension of time was ineffectual and of no validity.
22 In dealing with the primary submission, senior counsel for the applicant contended that the inclusion of portion of lot 3067 on the
(Page 13)
- Register of Heritage Places was beyond the exercise of proper power by the respondent. It was submitted that the portion of lot 3067 had no cultural heritage significance in its own right and so it was argued that a portion of the lot should not have been included as part of the registered place. The contention advanced was that the portion of lot 3067 could only be included in the Register if it had its own cultural significance.
23 As a subsidiary argument to support that contention, it was submitted that the only way that the relevant portion of lot 3067 could be dealt with under the Heritage Act was by way of a heritage agreement provided for in s 29 and s 33 of that Act. It is not necessary to reproduce those sections in these reasons, because it is not in dispute that no heritage agreement was entered into under those sections in relation to the relevant portion of lot 3067.
24 Before returning to s 47 set out earlier in these reasons it is necessary to consider the preceding section, s 46:
"46. The Register
(1) There shall be established a Register, to be known as the Register of Heritage Places, in a prescribed form.
(2) The Council shall compile and maintain the Register.
(3) A place shall not be entered in the Register, and an entry made in the Register shall not be amended or removed, otherwise than in accordance with this Part.
(4) Where the Minister -
(a) in the case of a place vested in the Crown, or in a person on behalf of the Crown, in right of the State - after consultation with the Minister of the Crown responsible for the maintenance of that place; or
(b) in the case of any other place - at the request of, or with the consent of, the owner,
(Page 14)
- approves of a proposed amendment being made to the description of, or other particulars relating to, a place entered in the Register (being an amendment not resulting in a reduction in the area of the land affected) the Council shall cause that amendment to be made to the Register."
25 Significantly there are provisions in the Heritage Act which enable a memorial of an entry in the Register to be lodged with the Executive Director of the Department of Land Administration, the Registrar of Titles or the Registrar of Deeds and Transfers and with the Director General of Mines (s 56).
26 Senior counsel for the applicant contends that the statutory scheme should be construed in such a way that the reasons of the Minister for making an entry in the Register must be apparent from the Register itself. It was contended that those reasons cannot be supplemented from any extraneous material so that the Register must reflect the true reasons of the Minister. Consideration of that argument involves an examination of the nature of the Register, its purpose and the effect of registration under the Heritage Act.
27 It is then necessary to return to s 47 set out earlier in these reasons. The first thing to note about that section is that it refers to the opinion of the Minister which is to be formed having regard to any advice given by the Council. That opinion must have one of two elements, that is, the place is either of cultural heritage significance or possesses special interest related to or associated with the cultural heritage. The Minister must also be of the opinion that the place is of value for the present community and future generations and that the protection afforded by the Act is appropriate. If those conditions are met, then the Minister may direct the Council to enter the place in the Register.
28 Section 51 then deals with the making of the entry in the Register and provides:
"51. Entry in the Register
(1) Subject to this Part, where the Minister directs that an entry in the Register on a permanent basis is to be made in relation to any place, the Council shall cause to be entered in the Register -
(Page 15)
- (a) a sufficient description of the location to identify the place to which the entry refers;
(b) the date on which the place was entered in the Register;
- (c) a statement -
(i) outlining how the place relates to or is associated with the cultural heritage in the State;
(ii) identifying particular features of significance or of special interest or value; and
(iii) giving reasons why any particular significance, special interest or value to the community is attributed;
- (d) if that particular significance, interest or value relates to any building situated at that place, a statement making clear whether it attaches -
(i) to the whole of the building and any appurtenances; or
(ii) to any particular part of the building or its appurtenances;
(i) any Order made under section 38 in relation to the place; and
(ii) any Heritage Agreement by which the place is affected;
- and
- (f) such other information as may be prescribed.
- (2) Where a place is entered in the Register pursuant to this section, the Council shall forthwith cause a notice setting out the particulars registered in
(Page 16)
- respect of the entry to be published by way of public advertisement."
29 The first thing to be noted about that section is that the entry is not made by the Minister, but at his direction. The Council is required to bring about the entry in the Register containing the particulars referred to in s 51 and, in particular, the reasons why any particular significance, special interest or value to the community is attributed as provided for in s 51(1)(c)(iii).
30 Senior counsel for the applicant contended that the reasons required under s 51(1)(c)(iii) by necessary implication must be the reasons of the Minister and not the reasons of the Heritage Council or any other body. It was contended that the reasons referred to in s 51(1)(c)(iii) refer back to s 47, and the opinion that the Minister is, by that section, required to form. In my view, however, the reasons referred to in s 51(1)(c)(iii) are not necessarily the reasons of the Minister, but rather the reasons as perceived by the Council. The Council is required to bring about the entry.
31 The reason why I have reached this view is because, in my view, the Register is not intended to be a record of ministerial reasons. Rather, as provided for in s 46, it is a Register compiled and maintained by the Council reflecting the matters required by s 51, so that any person searching the Register is able to ascertain and locate places of cultural heritage significance. I do not accept the argument advanced by senior counsel for the applicant that the Register must reflect exhaustively the reasoning of the Minister under s 47. In my view, the Register is of wider significance than reflecting only the reasons of the Minister. There may be other matters of significance to the Council, and perhaps also the local authority, which may be recorded in the Register and which may, or may not, reflect matters which influenced the Minister. By its very nature the Register is a document of importance not only historically and culturally, but may also reflect matters of scientific or social significance not only to the present community but to future generations. Those considerations are reflected in the definition of "cultural heritage significance" set out earlier in these reasons.
32 The applicant also contends that the entry in the permanent Register is defective because the diagram upon which the respondent relied did not set out the survey measurements locating the relevant portion of lot 3067 in relation to Dampier Terrace and Short Street.
(Page 17)
33 Whilst it is correct to assert that the diagram CS91719 shown at page 62 of the appeal book does not show the survey of Dampier Terrace and Short Street, the plan at page 243 of the appeal book does. It can be readily seen that each plan is identical except that the plan at appeal book page 243 contains surveying dimensions both of Dampier Terrace and Short Street. The plan, however, presented to the respondent as part of the application for permanent heritage registration was the correct plan but without those dimensions being shown. That plan is annexed hereto. The applicant, therefore, contends that the definition of "place" set out earlier in these reasons has not been sufficiently identified because the area of land was not sufficiently particularised, by survey description or otherwise, so as to be readily ascertainable.
34 In my opinion, the applicant's contention in this regard is not made out. For the purposes of this case, once it is accepted that the diagram at appeal book 243 does show the correct survey description, and it is accepted that the same diagram but without those added particulars at appeal book page 62 is the plan upon which the respondent relied, then, in my view, this argument has no substance.
35 The applicant also submitted that the jetty shown on the diagram at page 62 (being the diagram appended to this judgment) did not correctly show the position of the tramway lines on the jetty. That may well be the case. The diagram at appeal book page 205 shows tracks across the jetty as being at an angle, whereas the diagram upon which the Minister relied shows the tramway line as traversing the centre of the 24.68 metre strip. That is a matter of contention and, as I have said earlier in these reasons, the exact location of the tramway, including the way in which it traversed lot 3067, cannot now be ascertained. Even if it be the case that the correct position of the tramway was as shown at the diagram at appeal book page 215, I am not persuaded that an error of that type, being a matter of fact, is sufficiently significant to justify setting aside the decision of the respondent.
36 The next aspect of the applicant's argument is that the respondent's decision to include in the Register the part of lot 3067 shown on the diagram annexed hereto was an unreasonable decision in all of the circumstances. It was submitted that the vacant land of itself has no cultural or other significance. At best it is said that it was an area of land over which the tramway once ran. It is said that there are now no remnants, nor any physical matter on the land which would associate the land either with the jetty or with the tramway. It is therefore argued that the Minister acted unreasonably in including that area of the land as part
(Page 18)
- of the place in the Register. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ("Wednesbury").
37 In dealing with that submission, I accept the proposition advanced by senior counsel for the applicant that lot 3067 considered by itself, even judged in the light of the history of Streeter's Jetty and its surroundings, may not have been sufficient to justify entry on the Register. That is, however, not the end of the matter. The part of lot 3067 included in the Register must be seen in its overall context, including the historical, cultural and heritage significance of the whole area, including the tramway and the jetty. In that respect it is important to note that the permanent entry under item 10, Statement of Significance, includes:
"The place was an integral component of Broome's tramway system, constructed in 1899 with a branch to Streeter's Jetty which was accessed up until 1994 over land now known as lot 3067. The jetty is one of the few remaining elements of the system;
The place has been a visual landmark and local focal point of the Broome townsite from its construction in 1886;
The place is a visual reminder of Broome's pearling industry and as such is of social significance to the Broome community and to visitors from elsewhere in the state, interstate and overseas; and
The place is a valued recreational asset to the community."
38 As can be seen from the plan attached to these reasons, the way in which the place has been identified and designated provides a corridor of 24.68 metres in width from Dampier Terrace through to the end of the jetty. In my view, it is not appropriate to isolate part of lot 3067 from the overall consideration of the significance of the jetty, the tramway and the general area. I am not persuaded that any error has been demonstrated in the sense described in Wednesbury in all of the circumstances. In reaching that conclusion, I am mindful of the fact that there is no plan which expressly designates exactly where the tramlines traverse lot 3067, but what is known is that the tramway ran along the length of Streeter's Jetty and across lot 3067, joining the tramway on Dampier Terrace. In my view, once it is understood that not only the jetty, but the associated tramway link to the commercial precinct formed a system of particular importance in the history of Broome, there is nothing unreasonable about the respondent's decision to include in the Register a sufficient part of
(Page 19)
- lot 3067 to enable the general area to be properly preserved. Finally, in dealing with that aspect of the matter, when the Heritage Act was passed in the second reading debate of Tuesday, 21 August 1990, Mr Wiese in the second reading debate at Hansard page 3831 said:
"The definition of 'place' includes any area of land such as an area of land situated below low watermark on the seashore or on the bank of tidal waters. That definition goes far beyond what people talk about when considering land or buildings. The definition of 'place' also covers any works, buildings, and their contents relevant to the purposes of this legislation. We are talking about not only any land or buildings but also the contents of those buildings which are of significance. The definition also refers to such of their immediate surroundings as may be required; that is, it covers everything around the piece of land or buildings involved. … The objects of the legislation are to identify, conserve and, where appropriate, enhance those places within this state which are of significance to our cultural heritage."
"An act to provide for, and to encourage, the conservation of places which have significance to the cultural heritage in the State, to establish the Heritage Council of Western Australia, and for related purposes."
40 See also Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2000] QCA 378, per Williams J, at [70] and [71]; [2001] 2 Qd R 504 at 523.
41 I then turn to the third of the applicant's arguments relating to extension of time for the interim registration of Streeter's Jetty.
42 It is not in dispute that the interim registration of Streeter's Jetty occurred on 24 November 2000. Permanent registration occurred on 28 March 2002, a period in excess of 12 months from the date of the interim registration.
(Page 20)
43 Section 53 of the Heritage Act has been set out earlier in these reasons. The relevant provision for the purposes of this argument is s 53(2)(b):
"53. Time limit on registration procedures
…
(2) Where -
…
(b) the persons required by section 46(4)(b) to give consent to the amendment of an entry relating to the place have each given written notice to the Council consenting to the continuance of the interim registration and that consent has not been withdrawn,
an entry in the Register made at the time of interim registration continues to have effect until the Minister, by notice in writing to the persons then required pursuant to section 46(4) to be consulted or to give consent to an amendment, gives notice that the entry will be removed on the expiry of a period of not less than 12 months after the giving of that notice and that period has elapsed."
45 By letter of 9 January 2002 the Heritage Council sought from the applicant an extension of time for the interim listing to be extended to 31 March 2002. Earlier extensions of time had been agreed between the parties. In response to that request Brian Cooney, general counsel for the applicant, by letter of 16 January 2002, wrote to the Heritage Council:
"So far as your proposal to extend the interim listing to 31 March 2002 is concerned (so as to allow 'further negotiations'), PPL agrees to that proposal. Please confirm when the extension has been formally effected."
46 The issue that falls for consideration is whether the consensual extension beyond the 12-month period was effective in law.
(Page 21)
47 A submission advanced by senior counsel for the applicant was that s 53(2)(b) could have provided "with the consent of the owner" rather than "the person required by section 46(4)(b) to give consent to the amendment of an entry relating to the place".
48 Section 46(4)(b) provides:
"46. The Register
…
(4) Where the Minister -
…
- (b) in the case of any other place - at the request of, or with the consent of, the owner,
approves of a proposed amendment being made to the description of, or other particulars relating to, a place entered in the Register (being an amendment not resulting in a reduction in the area of the land affected) the Council shall cause that amendment to be made to the Register."
50 I would discharge the order nisi and dismiss the application for a declaration.
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51 WHEELER J: I have had the advantage of reading in draft the reasons for decision published by Scott J. I agree with them and have nothing further to add.
52 HASLUCK J: The applicant, Pearls Pty Ltd, seeks to quash a determination of the respondent, the Minister for the Environment and Heritage. Pursuant to s 51(1) of the Heritage of Western Australia Act 1990, the respondent determined that land owned by the applicant, namely, Lot 3067, being part of the land comprised in Certificate of Title Volume 2036 Folio 315, was to be entered in the register of Heritage Places on a permanent basis.
53 The applicant contends that the respondent's determination was ultra vires and void because the respondent lacked power under s 47 of the Act to include the land in the Register as a place of cultural heritage significance. The applicant says also that the respondent lacked power to include the land in the Register as land adjoining a place of cultural heritage significance because s 29 and s 33 of the Act provide a complete code for land that is associated with a registered place. Further, the determination to include the land in the Register was unreasonable.
54 I have had the advantage of reading in draft the reasons for decision of Scott J. The facts and matters giving rise to the dispute and the statutory provisions principally in issue are described in his Honour's reasons. I will not repeat them save where it is necessary for an understanding of these reasons. It emerges from his reasons for judgment that the subject land is vacant land privately owned by the applicant. The land abuts Streeter's Jetty and was once crossed by a tramway connecting Streeter's Jetty to the mainline on Dampier Terrace.
55 The criteria for entry in the Register are specified in s 47 of the Act. Permanent entry on the Register depends on the formation of an opinion by the Minster, having regard to advice given by the Heritage Council, that a place is of cultural heritage significance or possesses special interest relating to or associated with the cultural heritage, and is of value for the present community and future generations, and that the protection afforded by the Act is appropriate. The Minister may direct the Council to enter the place in the Register, either as an interim registration or on a permanent basis.
56 It is apparent from the statement of significance forming part of the permanent entry in the Register of Heritage Places and related evidence that the subject land falls within the criteria referred to in s 47 of the Act
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- because it was an integral component of Broome's tramway system constructed in 1899 and a focal point of the Broome townsite.
57 The applicant submits that, on the proper construction of s 47 and related provisions of the Act, land may not be included as a permanent entry in the Register merely because it adjoins, provides access to, or is a view corridor to, land which has heritage significance. In my opinion, this represents an unduly restrictive approach to the relevant provisions.
58 The definition of the term "place" in s 3 of the Act established that the place in question must be an area of land sufficiently identified by survey, description or otherwise as to be readily ascertainable. However, subject to that requirement, it is evident from the criteria reflected in s 47 of the Act that the significance which any place may have to the cultural heritage of the State is broadly defined. Thus, s 47(2) of the Act, without prejudice to the generality of the principal provision, allows for regard to be had to any strong association which the place has with any historic personage or significant event or discovery or any development or cultural phase.
59 I am therefore of the view, consistently with the reasons for decision of Scott J, that the respondent had power pursuant to s 47 of the Act to include the subject land as a permanent entry in the Register of Heritage Places and the decision to do so was reasonable bearing in mind that the land was associated with an important phase in the early history of Broome and the development of a tramway system which was of considerable importance to the town.
60 I am not persuaded that s 29 and s 33 of the Act concerning land contiguous to or otherwise associated with a registered place applies to the matters in issue in the present case or can be thought to preclude a permanent entry upon the Register of a place which has its own discrete cultural heritage significance because of its association with particular events such as the operation of a historic jetty and tramway system.
61 These provisions, which are essentially concerned with heritage agreements and conservation incentives, do not bear upon the question of whether the subject land in the present case falls within the criteria enunciated by s 47 of the Act because of its association with significant historical events.
62 I am generally in agreement with the reasons of Scott J and with his conclusion that the consent of the applicant to the extension of the interim registration was effective in law. I am of the view also that a degree of
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- ambiguity as to the precise location of the tram tracks within the boundary of the subject land cannot be regarded as fatal to the efficacy of the Minister's decision. Places of cultural and historical significance are often, and perhaps inevitably, the subject of debate about what happened in the past, and about the exact location and significance of key events. Debate about details does not necessarily diminish or negate the overall importance of the site.
63 I agree with the orders proposed by Scott J that the order nisi be discharged and the application for a declaration be dismissed.
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