Robt Nettlefold Pty Ltd v Hobart City Council
[2001] TASSC 120
•23 October 2001
[2001] TASSC 120
CITATION: Robt Nettlefold Pty Ltd v Hobart City Council [2001] TASSC 120
PARTIES: ROBT NETTLEFOLD PTY LTD
(ACN 009 475 816)
v
HOBART CITY COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 19/2001
DELIVERED ON: 23 October 2001
DELIVERED AT: Hobart
HEARING DATE/S: 30 May 2001
JUDGMENT OF: Crawford, Slicer, Evans JJ
CATCHWORDS:
Local Government - Town planning - Consent and approval of council (development and like applications) - Matters for consideration of council - Heritage protection and controls - Application to demolish building - Building not on "Heritage Register" - Whether heritage issues may be taken into account - Whether specific provisions of Planning Scheme override its more general objectives.
Land Use Planning and Approvals Act 1993 (Tas), Part 2 of Schedule 1, par(g).
City of Hobart Planning Scheme 1982 (Tas), cls 2.3.1, 2.3.2.
Von Witt v Hobart City Council A4/1995, referred to.
Woollahra Municipal Council v Andriotakis (1998) 101 LGERA 194; National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592, distinguished.
Aust Dig Local Government [211]
REPRESENTATION:
Counsel:
Appellant: A C R Spence
Respondent: Not represented
Solicitors:
Appellant: Page Seager
Respondent: Simmons Wolfhagen
Judgment ID Number: [2001] TASSC 120
Number of paragraphs: 69
Serial No 120/2001
File No FCA 19/2001
ROBT NETTLEFOLD PTY LTD (ACN 009 475 816)
v HOBART CITY COUNCIL
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
SLICER J EVANS J 23 October 2001
Order of the Court
Appeal dismissed.
Serial No 120/2001
File No FCA 19/2001
ROBT NETTLEFOLD PTY LTD (ACN 009 475 816)
v HOBART CITY COUNCIL
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
23 October 2001
The appellant applied to the respondent for planning permission to demolish a two-storey brick building at 38 Barrack Street, Hobart and to construct on the site a private car park. The respondent refused to grant a permit on a number of grounds, one of which was that the application was contrary to the objectives of Sch 1 of the Land Use Planning and Approvals Act 1993 ("the Act") because it did not conserve a building and site which was of historical and aesthetic interest.
The appellant first appealed against the decision to the Resource Management and Planning Appeal Tribunal ("the Tribunal") which upheld the respondent's decision and dismissed the appeal. The appellant then appealed to a judge and lost. It has appealed again to this Court. The respondent did not actively oppose the appeals to the judge and to this Court, leaving it to the appellant to persuade the respective courts that the previous decisions were wrong.
The building was constructed a little over 100 years ago. It was used as a blacksmith's shop and forge on the ground floor from 1900 to at least 1947 by the same family which lived above it. Evidence was given to the Tribunal for the appellant that the building was in serious disrepair and that the expenditure of the sum necessary to repair it was not viable financially. The respondent's Cultural Heritage Officer, Mr Lennard, gave evidence which was accepted by the Tribunal as expert evidence, that the building was an important reminder of community heritage and that its loss would weaken the physical fabric of the City, whereas its conservation and rehabilitation for compatible new functions would strengthen and enhance the cultural identity of the City. An expert planner, Mr Shephard, gave evidence for the appellant that conflicted with Mr Lennard's evidence. The Tribunal preferred the more detailed evidence of Mr Lennard as a specialist in cultural and heritage matters and found that the building had substantially the historic and aesthetic significance attributed to it by Mr Lennard. The Tribunal concluded that "balancing as far as possible the heritage significance of the subject building against the extent of financial disadvantage to the appellant if the proposal is refused the Tribunal considers that the balance lies in favour of preserving the building".
It has essentially been the appellant's case that because the building was not specifically included in the lists of places or properties set out in the Heritage Schedule F of the City of Hobart Planning Scheme 1982 ("the Planning Scheme"), any heritage significance of the building should not have been taken into account. The first three grounds of the appeal are:
"1The learned primary judge erred in law in holding that the Resource Management and Planning Appeal Tribunal was entitled to have regard to the attainment of objective (g) in Part 2 of Schedule 1 of the Land Use Planning and Approvals Act 1993 without being constrained by the fact that the building question [sic] was not included in the list set out in Schedule F of the City of Hobart Planning Scheme 1982 pursuant to Principle 20 of that Scheme.
2The learned primary judge erred in law in failing to hold that the Tribunal erred in that it relied on generalised statements of principle and objective set out in para(g) of Part 2 of Schedule 1 to the Land Use Planning and Approvals Act, imported into the Planning Scheme by clause 2.3.2(e) thereof, to the exclusion of the specific controlling provisions of Principle 20 and Schedule F of the Scheme.
3The learned primary judge erred in law in failing to hold that clause 2.3.2 of the Planning Scheme must read [sic] as a whole and that the provision of fair opportunity for the utilisation of land by means of a system of planning instruments requires that generalised statements of objective be read subject to the more certain specific provisions set out in the principles of development and the schedules to the instrument."
The application to the respondent for planning permission was made under the Planning Scheme. The proposed car park did not fall within any defined use group under the scheme. The respondent had a discretion whether or not to permit it. By virtue of Principle 5 of the scheme, the proposed demolition was not permitted until a further or replacement development had been approved.
Provisions of the Planning Scheme which were particularly relevant to the resolution of the appellant's application and the respective appeals were as follows. Sections 2.3.1 and 2.3.2 provided:
"2.3.1Subject to Section 2.3.2 (below), after consideration of the proposed development the Council shall:
(a) approve the development unconditionally; or,
(b) approve the development subject to conditions; or,
(c) refuse the development.
2.3.2Before granting or refusing approval for any development or imposing conditions in respect of any development the Council shall have regard to:
(a) the Principles;
(b)the Desired Future Character of the Precinct in which the development is situated; and
(c) the provisions of any relevant Schedule and/or Code;
(d)any valid representation received in relation to an application for which Section 57 of the Act applies and;
(e) to furthering the objectives of Schedule One of the Act."
Principle 20 read:
"The Council shall list parts of the Planning Area and specific buildings and sites to be of special significance; and control of development through the Planning Area shall be exercised to require conservation and enhancement of the significant characteristics of such areas, buildings and sites to the maximum degree the Council considers practicable."
Schedule F was entitled "Heritage Schedule". Its clauses included:
"F.4.1This Schedule identifies those parts of the 'Planning Area' and specific buildings and sites ('places') of special significance and the framework of control of development affecting such areas and places pursuant to Principle 20.
F.4.2Pursuant to Principle 20, those places listed on the Council's Heritage Register as set out in Appendix 1 to this Schedule shall be conserved.
F.4.3Pursuant to Principle 20 any existing building or structure listed on the Heritage Register shall be retained except where:
(i)it clearly detracts from the cultural significance of the place, or
(ii)there are overriding environmental, economic or practical reasons for its removal either wholly or in part."
Appendix 1 to the Heritage Schedule listed a number of properties by street name and number, but did not include 38 Barrack Street.
When read literally, s2.3.2(a) and (c) required the respondent, before granting or refusing approval of the appellant's application, and before imposing conditions upon a grant of approval, to have regard to the Principles contained in the scheme and to have regard to the provisions of any relevant schedule. A number of the Principles were clearly relevant to the application. They dealt with matters relating to (inter alia) the use and development of land throughout the planning area (which encompassed all of the City of Hobart, with certain exceptions), demolition, landscaping, access, parking, townscape, amenity and environment. Schedule F was not directly relevant because it did not include the property which was the subject of the application.
Also when read literally, s2.3.2(e) required the respondent, before granting or refusing the appellant's application, and before imposing conditions upon a grant of approval, to have regard to furthering the objectives of Schedule I of the Act, one of which was objective (g):
"(g)to conserve those building, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value".
Therefore the scheme, when read literally, required the respondent when considering how to deal with the application, to have regard to the objective expressed in the Act of conserving (inter alia) those buildings which are of architectural or historical interest, or otherwise of special cultural value. Having purportedly complied with the scheme's requirement that it have regard to that objective, the respondent determined to refuse the application. On the first appeal the Tribunal considered that the respondent was correct in the course it took. On the second appeal the learned judge agreed. On this third appeal I also agree.
Counsel for the appellant argued that Principle 20 and Sch F contain specific controlling provisions for areas and properties having what may loosely be described as heritage value. Those provisions, so it was argued, amount to a code which requires heritage areas and properties to be listed in Sch F if their conservation is to be required.
If a property is listed in the respondent's Heritage Register in Sch F its conservation is substantially protected. Clause F.4.2 of Sch F requires that it "shall be conserved". In the cases of buildings and structures an exception is grafted on to that by cl F.4.3, which provides that any existing building or structure on the list shall be retained except where it clearly detracts from the cultural significance of the plan or there are overriding environmental, economic or practical reasons for its removal. If a property is worthy of conservation and it is in fact listed, its conservation will be secured to the extent and subject to the exceptions provided by Sch F. However, if a property is worthy of conservation but it is not in fact listed in the Heritage Register, its conservation will not be so secured. Further, if the proposed use of the property, not so listed, is a permitted use under the scheme having regard to the area in which the property is contained, the development of the property for that use "shall hereby be approved in respect of use" (see cl A5 in the Use Schedule - Sch A), whereas if the property is so listed the use cannot be regarded as a permitted use, notwithstanding that it might otherwise be a permitted use, because cl F5.1 expressly provides that the respondent has a discretion to refuse or permit any proposed use or development with respect to a place which is listed on the Heritage Register. Further to that, Principle P.20 requires that if a property is listed on the Heritage Register control of development shall be exercised to require conservation and enhancement of the significant characteristics of the building "to the maximum degree the Council consider practicable". No such requirement applies to a property which is worthy of conservation but which is not listed on the Heritage Register.
With respect I agree with the following statement of the learned judge in the court below:
"Clause 2.3.2 contains (admittedly by reference) a specific power or obligation to determine approvals or refusals having regard to the objective of conserving buildings of heritage significance, while Principle 20, to which regard must also be had, imposes an obligation to prepare a list of particular places of significance and states the principle that control of development through the planning area is to be exercised to require their conservation and enhancement as far as practicable. The list is a convenient way of identifying such property, but it is not necessarily exhaustive. I see no inconsistency between preparing the list of places to be conserved on the basis that they have been identified as having heritage significance and ensuring the conservation of properties in fact having that significance but which, for whatever reason, have not yet been identified as such in accordance with the obligation laid down in Principle 20. This is not a situation in which a general expressed or implied power is sought to be exercised in a manner other than that laid down specifically elsewhere in the enabling Act or subordinate legislation. In each case the power is essentially the same, namely the use of planning powers to ensure the conservation of sites of heritage significance. The preparation of a list as required by Principal [sic] 20 merely facilitates the achievement of that object rather than specifying an exclusive manner of achieving it."
Counsel for the appellant relied on the dicta of Wright J in Von Witt v Hobart City Council unreported A4/1995 at 5, where his Honour said that cl 2.3.2 makes it clear that all of the factors enumerated in it are to be considered by the respondent before making a decision in respect of a development application. He added:
"This is precisely what one would expect bearing in mind the great variety of land uses which may need to be considered by the Council and the wide discretion which it may be called on to exercise in any individual case."
I respectfully agree with all of that, but it was from what was next said by Wright J that the appellant's counsel sought to obtain support:
"The Scheme must be read as a whole and the generalized statements of principles, objectives and desired future character cannot be relied upon to the exclusion of subsequent specific provisions contained in any Schedule except where this is provided for by the Scheme itself."
I have no disagreement with that passage, but I do not understand it to support the argument of the appellant's counsel. Giving effect to cl 2.3.2(e) in this case will not result in the exclusion of the subsequent specific provisions of Sch F, which do not operate in the circumstances of the case, because the property is not one of those listed on the Heritage Register.
Counsel also relied on dicta of the High Court in Anthony Horden & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7, 8, 20 and 21 and R v Wallis (1949) 78 CLR 529 at 549 - 550 to the effect that when the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. However, like the learned judge here, I would distinguish those cases. This is not a situation of a specific power and a general power. Clause 2.3.2, by its reference to the objectives of the Act, Sch I, contains a specific obligation to have regard to the objective of conserving buildings, which are of aesthetic, architectural or historical interest, or otherwise of specific cultural interest.
It is therefore my opinion that the alleged errors raised by the first three grounds of appeal fail.
The fourth ground is that the learned judge erred in failing to hold that the Historic Cultural Heritage Act 1995 ("the Heritage Act"), either alone or alternatively when taken together with the Planning Scheme, provides a statutory scheme which deals specifically and comprehensively with sites of heritage value in the City of Hobart. The Heritage Act was enacted after the Land Use Planning and Approvals Act 1993 and after the commencement of that Act's provision in Sch 1 of objective (g). There is nothing in the Heritage Act which provides that planning authorities may not have regard to heritage issues, when dealing with planning applications, except in accordance with the Heritage Act and the processes for which it provides. If the Heritage Act so provided then s2.3.2(g), Principle 20 and Sch F of the Planning Scheme would be ultra vires. Counsel's argument however did not extend as far as that. I add that there is nothing in the Planning Scheme itself which suggests that heritage issues may only be raised under Principle 20 in Sch F or under the Heritage Act. I would distinguish what was said by the New South Wales Court of Appeal in Woollahra Municipal Council v Andriotakis (1998) 101 LGERA 194 at 202, 216 and 217, and National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592 at 607, upon which counsel relied, because those cases concerned markedly different legislation and planning regimes than the ones here. I conclude that the submission of counsel that the provisions of the Heritage Act and Principle 20 in Sch F of the Planning Scheme are a code amounts to little more than wishful thinking and an argument as to what ought to be and one better addressed to the Government and the respondent, rather than one which addresses the proper interpretation of the Heritage Act and the Planning Scheme.
The fifth ground of the appeal claims that the learned judge erred by holding that the Tribunal was entitled to take into consideration the opinion of the witness, Mr Lennard, and his evidence that he intended to recommend the inclusion of the site in the Heritage Register appended to Sch F in the Planning Scheme. Having regard to the view I take of the other grounds, the opinion of Mr Lennard concerning the heritage value of the property was evidence that was plainly relevant. His stated intention to recommend the property's inclusion in the Heritage Register was, as the learned judge said, evidence which backed up his opinion concerning its heritage value. If, as counsel submits, the Tribunal misapplied the evidence of what Mr Lennard intended to do in the course of rejecting the appellant's argument that the cultural and historical significance of the property was definitively and negatively established by the absence of any listing of the property in the Heritage Register or any other register, it is of no consequence, having regard to the view I take that the cultural and historical significance of the house was not negatively established in that way.
The final ground of the appeal, ground 6, was not argued before the learned judge and was added as a ground of appeal with the leave of this Court. It was argued as an alternative to ground 5 and as submitted by counsel, it asserts that the Tribunal erred in law by determining to dismiss the appeal to it upon the basis that, "balancing as far as possible the heritage significance of the subject building against the extent of financial disadvantage to the appellant if the proposal is refused, the Tribunal considers that the balance lies in favour of preserving the building", without exposing its reasons for considering that Mr Lennard's evidence was relevant and material. It was argued to the Tribunal that his evidence was not relevant because the Tribunal was not entitled to take into account heritage issues. For the reasons I have given, the Tribunal was entitled to have regard to those issues and it did so, determining the appeal against the appellant. Mr Lennard's evidence was relevant and material to heritage issues. The fact that the Tribunal did not explain why that was so is of no consequence. If the Tribunal thought that in some way Mr Lennard's evidence made heritage an issue, as a matter of law, then it was wrong, although I am not persuaded that it in fact thought that. But even if it did, I am satisfied that as a matter of law the Tribunal was entitled to take into account heritage issues, regardless of what Mr Lennard might have thought, and any failure on the part of the Tribunal to explain more clearly the use to which it put Mr Lennard's evidence in no way affects what must be the appropriate outcome for this appeal, which is dismissal.
File No FCA 19/2001
ROBT NETTLEFOLD PTY LTD (ACN 009 475 816)
v HOBART CITY COUNCIL
REASONS FOR JUDGMENT FULL COURT
SLICER J 23 October 2001
The appellant seeks review of a decision, originally made by the respondent, to refuse permission for the demolition of a building in Barrack Street, Hobart, in order to construct on the site a private car park. The original decision has been reviewed by the Resource Management and Planning Appeal Tribunal and a justice of this Court. The appeal from the justice claims error in the interpretation of the City of Hobart Planning Scheme 1982 ("the Scheme") and its stated principles, the application of the Historic Cultural Heritage Act 1995, reliance on the opinion of an expert witness, and a failure to properly balance the competing considerations of heritage significance and financial disadvantage coupled with failure to state reasons, the last not being matters not previously raised.
The ground of appeal added at the relevant hearing of this appeal claims that:
"6The Tribunal erred in law in that it determined to dismiss the appeal upon the basis that in balancing the heritage significance of the property against the extent of financial disadvantage to the appellant if the proposal is refused that the balance lay in favour of preserving the building without exposing its reasons for either:
...
(b)The relevance and the use to which it put the evidence of the witness Mr Lennard that he would recommend that the subject property be included in the Heritage Register appended to Schedule F of the planning Scheme."
This appeal is one from a single judge of this court. No question had been raised before the learned primary judge that there had been an error by the Tribunal in failing to adequately state the reasons for this part of its decision (Sielito v C and J S [1998] TASSC 45, Seablest Pty Ltd v Smith & Ors (1997) 6 Tas R 350). Accordingly, in logic there can be no error on the part of the primary judge in his approach to the issue. Grounds not argued at first instance may properly be advanced before an appellate court, but this form of complaint ought be treated with extreme caution (Coulton v Holcombe (1986) 162 CLR 1, Water Board v Moustakas (1994) 180 CLR 491). The appellant in seeking review of a review not previously articulated ought not be permitted by claim of a question of law to simply claim a right to a rehearing. The amended ground as formulated seeks to achieve such a purpose. In effect the amended ground (6) is subsumed by ground (5) which will be separately considered. In any event the complaint is answered by the recent decision of the High Court in Minister of State for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30, and ought be dismissed.
The appeal raises questions as to:
(a) the manner in which broad objectives stated in a planning scheme operate in specific cases;
(b) whether specified or defined characteristics are facilitatory in nature;
(c) implementation of policy concerning the protection of heritage; and
(d) policy of certainty in the principles of planning.
Background
The building in question, built at the turn of the century, was used as a blacksmith's shop with living quarters above, by the same family until 1947. Its continued existence contributed to the cultural heritage of the City of Hobart, but with the passage of time had become degraded. Its value as a building alone was unremarkable and its aesthetic characteristics diminished by disrepair, casual occupancy and absence of uniqueness. Its heritage values were those of age, continuity and a reminder to community of from when it had come.
The policy of the respondent was to seek where possible the restoration of such buildings rather than their destruction. The objective of the appellant was to avoid a needless expense in an exercise designed to maintain a facade.
The clash of the opinion witnesses was central to the resolution of these competing values.
The respondent had attempted, through delegated power, to give effect to its policy of rehabilitation. However, the Scheme did not designate the specific property, or its area, as being within its intended protection. The property was neither identified in the "Heritage Schedule" of the planning schedule nor listed on the register created pursuant to the Historic Cultural Heritage Act.
The determination challenged was made in accordance with the objectives stated in the Land Use Planning and Approvals Act 1993 ("LUPAA").
The respondent had implemented the Scheme in order to give effect to, and pursuant to, its statutory obligations. Its parts, relevant to this appeal and pertaining to the issue of heritage state:
"2.3.1Subject to Section 2.3.2 (below), after consideration of the proposed development the Council shall:
(a) approve the development unconditionally; or,
(b) approve the development subject to conditions; or,
(c) refuse the development.
2.3.2Before granting or refusing approval for any development or imposing conditions in respect of any development the Council shall have regard to:
(a) the Principles;
(b)the Desired Future Character of the Precinct in which the development is situated; and
(c) the provisions of any relevant Schedule and/or Code;
(d)any valid representation received in relation to an application for which Section 57 of the Act applies and;
(e) to furthering the objectives of Schedule One of the Act."
Principle 20 reads:
"The Council shall list parts of the Planning Area and specific buildings and sites to be of special significance; and control of development through the Planning Area shall be exercised to require conservation and enhancement of the significant characteristics of such areas, buildings and sites to the maximum degree the Council considers practicable."
Schedule F to the Scheme is entitled 'Heritage Schedule'. Clause F.2.1 states:
"This Schedule identifies those parts of the 'Planning Area' and specific buildings and sites ('places') of special significance and the framework of control of development affecting such areas and places pursuant to Principle 20."
Clause F.4.2 states:
"Pursuant to Principle 20, those places listed on the Council's Heritage Register as set out in Appendix 1 to this Schedule shall be conserved."
Clause F.4.3 states:
"Pursuant to Principle 20 any existing building or structure listed on the Heritage Register shall be retained except where:
(i)it clearly detracts from the cultural significance of the place, or
(ii)there are overriding environmental, economic or practical reasons for its removal either wholly or in part."
Appendix 1 to the Schedule lists a number of properties by street name and number, but No 38 Barrack Street is not included in it. Among the objectives of Pt 2 of Sch 1 of the Act is:
"(g)to conserve those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value …"
The Tribunal paid regard to the general objectives stated in the legislation and the Scheme. LUPAA, Sch 1 Pt 2, establishes certain objectives of the planning process, those being relevant to this appeal being:
"(c)to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land; and
(d)to require land use and development planning and policy to be easily integrated with environmental, social, economic, conversation and resource management policies at State, regional and municipal levels; and
...
(g)to conserve those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value."
The relevant provisions of the Scheme state:
"5.4The Objective of the Central Service Zone is to provide for a changing diversity of general non-residential uses reflecting the transition between other Central Zones, the waterfront, and inner residential areas.
…
5.4.3The Liverpool Precinct should contain activities which reflect its position as a transitional link between the City Centre and Residential Precincts. Low intensity and speciality shops, entertainment and community services and wholesaling should continue to locate within the Precinct."
and defines "heritage area" as meaning "a part of the Planning Area of special significance pursuant to Principle 20".
It is contended by the appellant that since the respondent had not listed the specific building nor identified the location as having heritage significance as provided by Principle 20, it ought not have prevented demolition and rebuilding. The appellant contends that the provisions of the Historic Cultural Heritage Act reinforce the validity of its contention. That Act, s7(1)(b), affords power to the Heritage Council to:
"… work within the planning system to achieve the proper protection of Tasmania's historic cultural heritage;"
while s17 enables:
"(1) The Heritage Council, on its own initiative or on application to it by any person, may decide to enter a place in the Heritage Register on a provisional basis if in its opinion it meets any one or more of the required criteria.
(2) A person who applies to have a place entered in the Heritage Register on a provisional basis must give any information the Heritage Council requires to enable it to deal with the application."
Since the Council had not sought registration it is said that its purported exercise of power through heritage could not apply to the building in question.
Decision appealed from
The learned primary judge concluded that the preparation of a list in accordance with Principle 20 facilitates the achievement of heritage preservation rather than specifying an exclusive means of achieving that object stating in his reasons for judgment ([2001] TASSC 10) at pars 8 and 10:
"The identification of recognised sites of heritage value is obviously desirable in the public interest, but it is also in the public interest that sites which are, after the preparation of the list, found to have that value should, as far as practicable, be conserved. It was submitted that the list, as amended from time to time, should be regarded as exhaustive because the amendment process contained in the Act, ss31 - 43, provides an orderly means by which persons having an interest in the subject matter can make representations. However, the process of hearing this application and the appeal to the Tribunal affords similar opportunities for those affected to be consulted and to have an input into the factual question whether or not any given site is of heritage significance.
…
In my opinion, therefore, the Tribunal was entitled to have regard to the attainment of Objective (g) in the First Schedule to the Act and in doing so was not constrained by the fact that the building in question was not included in the List which forms part of Schedule F of the Scheme. Ground 1 fails."
In doing so it is said that he was wrong in declining to follow the decision of the Full Court of Victoria in National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Limited and Anor [1976] VR 592.
Exercise of Power
The grounds of appeal 1 and 2 claim:
"1The learned primary judge erred in law in holding that the Resource Management and Planning Appeal Tribunal was entitled to have regard to the attainment of objective (g) in Part 2 of Schedule 1 of the Land Use Planning and Approvals Act 1993 without being constrained by the fact that the building question was not included in the list set out in Schedule F of the City of Hobart Planning Scheme 1982 pursuant to Principle 20 of that Scheme.
2The learned primary judge erred in law in failing to hold that the Tribunal erred in that it relied on generalised statements of principle and objective set out in para(g) of Part 2 of Schedule 1 to the Land Use Planning and Approvals Act, imported into the Planning Scheme by clause 2.3.2(e) thereof, to the exclusion of the specific controlling provisions of Principle 20 and Schedule F of the Scheme."
Central to these grounds is the contention that the legislative scheme provided by Parliament together with its formulation and execution by planning authorities operates as a code or comprehensive scheme, such the deviation from it renders an exercise of power beyond power or invalid and failure to comply with a particular methodology or procedure renders the particular decision nugatory by reason of inconsistency. Both proportions are complementary in that the common consequence was that the respondent had no power to refuse the grant of permit and the Tribunal had no power to pay regard to matters pertaining to an unlisted building.
The legislative scheme is comprehensive and attempts to state general principle, define the relevant statutory bodies responsible for planning and development and allocate responsibility, joint and several, for the translation of general principle into details and final implementation.
The Environmental Management and Pollution Control Act 1994, ss24 - 25, requires planning authorities of whatever nature to refer, in certain cases, matters subject to their responsibility to "the Board" for further consideration. Thus, the Scheme permits administrative review according to overriding principle and central authority.
Certain powers and duties are concurrent and vested separately in different statutory bodies. Thus, the Historic Cultural Heritage Act which provides for the maintenance of a register of significant buildings also creates a separate offence and sanction, namely, s32, which states:
"A person must not carry out any works in relation to a registered place or a place within a heritage area which may affect the historic cultural heritage significance of the place unless the works are approved by the Heritage Council."
The Historic Cultural Heritage Act, s33, permits delegation by the Heritage Council to a planning authority or referral to it of responsibility by such an authority. Appeals from decisions of the Heritage Council are governed by the Resource Management and Planning Appeal Tribunal Act 1993 ("RMPAT Act"). The Scheme is intended to permit shared responsibility, complementary procedures and requirements whilst centralising review.
LUPAA, s5, imposes an obligation on any person fulfilling a function under the Act to further certain prescribed defects and provides (s20), a broad set of criteria and objects which extend to amendments (s33). Section 51(2) further requires that a planning authority:
"In determining an application for a permit … -
(a) … seek to further the objectives … ;
(b)… take into consideration such of the prescribed matters as are relevant to the use or development the subject of the application; and
(c)… take into consideration the matters set out in representations relating to the application … [by interested parties]."
The State Policies and Projects Act 1993 permits the making of "State Policies" on a wide range of matters (s5A) and provides by s13(1) that:
"13(1) Where there is an inconsistency between a provision of a State Policy and a provision of a planning scheme or an interim order in force at the time when the State Policy comes into operation, the provision of the planning scheme or interim order is void to the extent of the inconsistency."
Whilst the provision would not make a ministerial statement on policy or the meaning of a statutory provision a relevant consideration (Singer v Statutory and Other Offices Remuneration Tribunal (1986) 5 NSWLR 646), the provision shows that the legislative scheme is intended to be flexible and permit variation according to principle and the status or hierarchy of the relevant statutory body.
Decisions made by the various statutory bodies are subject to review by a central body (RMPAT Act) and the right of appeal to the Supreme Court confined to questions of law (s25).
The legislative scheme, whilst comprehensive, lacks the characteristics of a code (Re Budgett [1894] 2 Ch 557, Bank of England v VaglianoBrothers [1891] AC 107).
The appellant relied on a number of authorities to show that the failure to register the building or include it within a precinct tendered the decision beyond power. Two Tasmanian decisions do not advance its proposition. The only statement of principle relevant to this appeal made by Zeeman J in Davies-Smith v Superoo Pty Ltd (1994) 3 Tas R 107 at 121, was that "a planning scheme forms part of the general law …". In Drafting Services (Tas) Pty Ltd v Hobart City Council (1996) 91 LGERA 134; B33/1996, Cox CJ dealt with a case involving secondary impact of an adjoining building. In dealing with an agreement that development of a "listed" building was exempt from the general planning provisions he concluded at 136:
"The Tribunal's holding that because the land in question, being one of the group '24-28 Gregory Street' was listed in Sch F, appendix 1, it followed that the deck or patio was not exempt from planning approval was, in my view, correct.
In dealing with a secondary argument he stated at 137:
"Although the fact that the property affected by the proposed work was described in Sch F necessitated the grant of a permit and brought into play the special provisions of Sch F and Principle 20, the Tribunal was nonetheless obliged to have regard to other matters not peculiar to properties the subject of heritage listing: see Von Witt v Hobart City Council (1995) 86 LGERA 134."
I understand the learned Chief Justice to be saying that a "listed" building which might be subject to specific requirements is nevertheless susceptible to general planning provisions. Many of those planning provisions are stated in general terms. A "listed" building identified in a precise manner relevant principles but is not confined by them. An "unlisted" building remains subject to general principles which upon examination can be seen to have specific application to it by reason of historical or cultural significance.
The respondent and the Tribunal had been afforded legislative power to apply general planning provisions to a planning decision affecting an unlisted building.
The concurrent contention of the appellant is that failure to comply with its own scheme by the respondent rendered its decision invalid. It as attempting to achieve a purpose which although within power afforded by Parliament it had decided not to adopt or exercise that grant of power. It may be that even if the contention is correct such does not preclude the Tribunal from exercising wider powers afforded by other enactments of Parliament. For the purpose of this appeal it will be assumed that each body was confined by the term of the respondent's Scheme.
The respondent was not so confined.
In Von Witt v City of Hobart A4/1995, Wright J stated at 5 in relation to the Scheme, clause 2.3.2 already referred to:
"This makes it clear that all four of the enumerated factors are to be considered by the Council before making a decision in respect of a development application. This is precisely what one would expect bearing in mind the great variety of land uses which may need to be considered by the Council and the wide discretion which it may be called on to exercise in any individual case.
The Scheme must be read as a whole and the generalized statements of principles, objectives and desired future character cannot be relied upon to the exclusion of subsequent specific provisions contained in any Schedule except where this is provided for by the Scheme itself. For example, parP3 of the 'Principles of Development Control' says:
'Notwithstanding the provisions of any Part or Schedule of this Planning Scheme, the Corporation may use its discretion to permit an existing use to change to any use more in conformity with the Desired Future Character of the relevant Precinct.'
As I read the Scheme this is the only provision which vests a power in the Council to override the controlling provisions of the Parts and Schedules.
Paragraph P1 of the 'Principles of Development Control' says:
'The use and development of land throughout the Planning Area shall be controlled by mandatory provisions of the Parts and Schedules that constitute the Planning Scheme, and may be further or differently controlled by the exercise of the Corporation's discretion to refuse or permit development in accordance with the relevant Objectives and Desired Future Character relating to particular Zones and Precincts respectively.'
This makes it clear, in my opinion, that both Parts and Schedules are to be read together, mandatory requirements of each must be observed, and where the Council has a discretion it must act in accordance with the stated objective (if any)."
I do not disagree with these statements. The respondent cannot use general statements to override a mandatory requirement stated by Parliament or contained in its own scheme such as non-application of exclusion (LUPAA, ss20(3), (4), (7) and (11)), notification and certification (ss23, 24, 35, 36), public exhibition (s25), reception and consideration of representations (ss26, 27), obedience to direction (s28A) and similar procedural and substantive requirements stated by Parliament. But reading the Parts and Schedules together, it is clear that a particular building or use not specifically identified can possess characteristics (such as historic significance or value) which require consideration in accordance with a more general provision.
In Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, the New South Wales Land and Valuation Court was required to consider a question of interim development in the context of a proposed local planning scheme. Hardie J stated at 123:
"The real question for determination arises under sub-cl (a) of cl 35(1), under which the responsible authority, and this Court on appeal, must decide whether or not to approve of the erection of the proposed additional building 'having regard to the circumstances of the case and the public interest'."
and concluded at 125 - 126:
"An approval in this case for a new, large and permanent industrial building on the land the subject of this application would, in my view, having regard to the circumstances of the case and the special features and town planning difficulties of the area, cut across to a substantial degree the considered conclusion of the respondent council and its town planning committee that the whole of the block should be zoned 'Residential-Class C'. Further, it would make the ultimate decision more difficult in that the erection of the new factory would so disturb the existing balance and proportion of residential and non-residential development and user in the block that the Minister would be faced with the task of making a decision on a set of facts substantially different from that existing when the council dealt with the matter."
That approach was followed by King J in Albury-Wodonga Development Corporation v Fitzpatrick [1982] VR 165.
A Scheme is a dynamic method of responding to the needs of and changes in a community. Here steps were being taken to have the particular building listed. A planning authority might be precluded by estoppel or be susceptible to a claim for damages when changes are made after a person, who had relied on the Scheme or representations made by public officers, had expended money. But in making a particular decision the respondent was not precluded from giving consideration to, or implementing other appropriate principles contained in its own Scheme.
In Woollahra Municipal Council v Andriotakis (1998) 101 LGERA 194, the New South Wales Court of Appeal gave consideration to the environmental plan the respondent intended to apply in cases specified as having heritage significance and which was subsequently amended to prohibit any exemption. The Land and Environment Court had held that the purported local approvals policy was involved and the Court of Appeal upheld its conclusion. However, the plan was held to be invalid because it was inconsistent with the statute affording power. The Local Government Act 1993 (NSW), s163 Pt 3, relevantly provides:
"A local policy adopted under this Part by a council, to the extent to which it is inconsistent with this Act or the regulations, is void."
Section 164 provides:
"(1) If a criterion is prescribed by this Act or the regulations in relation to:
(a)a specified aspect of an activity that may be carried out only with the prior approval of the council; or
(b)a specified aspect of anything for which an order may be given under Part 2, a local policy adopted under this Part by a council, to the extent to which its provisions impose a more onerous criterion in relation to the specified aspect, is void.
(2) However, for the purposes of this section, the imposition of a criterion in a local policy in relation to a specified aspect, does not, in the absence of the prescription by this Act or the regulations of a criterion in relation to that aspect, constitute a more onerous criterion."
Sheller JA determined at 202 that:
"… the first part of par 2.1.2 ['the relevant scheme'] purported to impose a more onerous criterion in relation to demolition than that prescribed relevantly by the Act …"
While Sheppard AJA (with whom Priestly JA agreed), concluded at 225:
"… that the local approvals policy is invalid although not because of any problem connected with s 161 [which related to procedures]. My reason for the conclusion I have reached stems from the fact that I consider the policy in a critical respect to be inconsistent with a provision of the Act (see s 163). My conclusion does not mean that my answers to the questions answered by the primary judge should be different. I agree with him, although for different reasons, that the policy is invalid."
Another case relied on by the appellant was that of Makucha v Albert Shire Council [1996] 1 Qd R 53. In that case the Local Government (Planning and Environment) Act 1990 Qd, exhaustively defined how the consent of a local authority was to be secured to a piece of land regulated by the town planning scheme. The Council had attempted to amend the scheme to permit use by licence or registration under another law. Its attempt was held to be ultra vires. Pincus JA stated at 61 that the:
"… Act seems to provide a code by which the planning of an area may be effected, including procedural provisions of some importance such as appeal rights. It is by no means clear that use of alternative planning mechanisms, ignoring the P & E Act, is an option available to local authorities."
Macrossan CJ dissented holding the amendment to be within power while Byrne J preferred a narrower approach based on the language of the statute stating at 63 - 64:
"Generally speaking, the Act does not exclude the designation of a use as 'permitted' conditionally. Take this example. In environmentally sensitive areas, development might be subjected to concurrent regulation: under a Planning Scheme, and by State or Federal Government instrumentalities. In such circumstances, a Scheme which allowed development without the local authority's consent, provided that the proposal had secured the approval of another agency of government, would seem to me lawful. The Act does not expressly preclude such a conditionally 'permitted' use; and, in view of the advantages that could attend such a regime where land is concurrently regulated by different agencies, that is not surprising.
These things, however, are by the way. The effect of cl 7A is that an advertising sign is a 'permitted' use if the council has approved of that use by licensing the sign under a by‑law. So the question is whether the Act prohibits the inclusion in a Scheme of a provision allowing a use or development of land on condition that the local authority itself has consented to it under such a by‑law. The Act does not in terms prohibit such a condition. The validity of cl 7A therefore depends on whether, by necessary implication, the Act discloses an intention that a use or development of land cannot be 'permitted' on condition that the local authority approves of it by licensing the proposal. No extrinsic material assists in discerning the legislature's objective. Inferences drawn from the words of the Act and the intent they manifest are therefore decisive.
The Act prescribes an elaborate scheme for obtaining such consent: see ss 4.12 and 4.13 and the other provisions mentioned by Pincus J.A. Although, as I have said, in general the Act is not opposed to conditionally 'permitted' uses, this plan for obtaining consent would be subverted if land may be used with the permission of the local authority granted other than in accordance with those very detailed sections. In my opinion, it is an inescapable inference that the intent of those sections, so closely prescribing the means for obtaining permission to use land comprehended by a Scheme, is at odds with the different method for securing consent envisaged by cl 7A. This inconsistency spells the invalidity of cl 7A once it is accepted ‑ as I think it must be ‑ that the Act defines, exhaustively and seemingly exclusively, how the consent of a council is to be secured to a use of land regulated by a Scheme."
In his reasons for judgment the learned primary judge distinguished the authority of National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Limited and Anor, (supra), and on the hearing of the appeal counsel for the complainant submitted that he did not adequately do so. That case involved a grant of permission for the erection of a building which exceeded that provided for in the planning scheme. The planning authority had statutory power to permit such a course. The National Trust had sought to intervene in the proceedings conducted by the Appeals Tribunal on the basis that the building to be demolished was of historic significance and had been listed as such by the Trust. The Tribunal determined that the National Trust had no standing and its grounds of objection irrelevant to a permit to exceed the stated height. The former conclusion was rejected by the Full Court, but the latter upheld. The Full Court concluded that the planning authority had been afforded a discretion for the purpose of controlling the height of the building and that such discretion could not be used for the purpose of the conservation of an historic building. The relevant legislation contained a provision which related to the conservation of historic buildings and would have permitted the Council to have taken some other course. But the matter proceeded to the Appeals Tribunal only as one of an application to change the permitted height. The Court determined that since this was the matter subject to challenge other considerations which might have been relevant at an earlier stage were not relevant to the issue before the Tribunal. In relation to the Trust's argument that such matters were always relevant the Court stated at 606:
"In relation to the application under cl 24(4) of the Planning Scheme the argument was to the effect that having regard to the provision in cl 5A of the Planning Scheme it was a consideration relevant to the grant or refusal of a permit under that sub‑clause to exceed the stipulated height that the orderly and proper planning of the area within which the land was situate and the amenity of the neighbourhood would or could be adversely affected by the demolition of an historic building to make way for the projected building of the height sought.
The latter part of this argument meets immediately with difficulty. For the purpose of the grant of the discretion is to control the height of buildings in a particular area. Notwithstanding the general words of cl 5A the responsible authority is not entitled 'to introduce into the considerations affecting the grant of a licence an element foreign to the duties' of the authority in that regard, or to engage 'in a consideration of matters extraneous to the application for a licence', or matter which is 'too remote' therefrom. (Victorian Railways Commissioners v McCartney & Nicholson (1934), 52 CLR, at pp 390, 395, 398.) 'The discretion must be used and the power exercised bona fide and with the view of achieving ends or objects not outside the purposes for which the discretion or power is conferred.' (Shrimpton v The Commonwealth (1945), 69 CLR, at pp 620, 627, 631, and 632). The discretion conferred by cl 24(4) is one conferred for the purpose of controlling the height of buildings. In that connection it is proper to have regard to what is prescribed by cl 5A. But to use that discretion for the purpose of endeavouring to ensure the conservation of an historic building and to regulate the orderly and proper planning of the area in which it is situate and the amenity of the neighbourhood, in other respects than with regard to the height of the building, is to endeavour to achieve ends outside the purpose for which the power is conferred and to intrude into the exercise of the discretion matters which are extraneous to it. The responsible authority could not properly refuse the permit under the Planning Scheme on such considerations and could not properly have regard to them in determining whether to grant a permit or not."
and concluded at 607:
"The contention that what is prima facie an extraneous consideration is made relevant by being made a purpose of the Act by the presence in the Third Schedule of a clause (cl 8) which sets out as one of the matters which may be provided for in a scheme ‑ 'the conservation . . . of buildings. . . specified as being of architectural historical or scientific interest', meets difficulty from the circumstance that the Act prescribes with some precision the way in which that purpose of the Act is to be achieved. It is to be done by a provision being made in a scheme (which is subject to the approval of the Governor‑in‑Council) giving effect to the objective in a prescribed way and it is required that the buildings shall be specified in the scheme as being of architectural, historical or scientific interest. The contention under examination is that effect can be given to the same objective without regard to these limitations by treating it as a consideration relevant to the grant or refusal of a permit and by granting or refusing a permit accordingly. That is a conclusion not readily to be accepted. So far from cl 8 and its subject matter showing that its subject matter is a relevant consideration in relation to a refusal of a permit it shows that it is not.
The somewhat different contention that it was a relevant consideration that the proposed development would adversely affect the character and amenity of the area because it would involve the demolition of the existing building directs itself to the subject matter of the area instead of the subject matter of the building. But the core of the matter is still the preservation of the building. The material before the Planning Appeals Tribunal showed that it was the conservation of the particular building that was the substance of the National Trust's objection. So regarded the contention meets the same difficulty. If, however, the matter is to be regarded from the aspect of the conservation of an area or the conservation of the character of an area, an examination of cll 8A and 8B of the Third Schedule discloses the same features as in the case of cl 8 and presents the same difficulty to that contention. The matters relied upon were therefore not relevant considerations for the responsible authority and the Appeals Tribunal in relation to the application for permits under the Interim Development Order."
Grounds 1 - 2 are not sustained and ought be dismissed.
Comprehensive Scheme
Grounds 3 and 4 of the notice of appeal state:
"3The learned primary judge erred in law in failing to hold that clause 2.3.2 of the Planning Scheme must read as a whole and that the provision of fair opportunity for the utilisation of land by means of a system of planning instruments requires that generalised statements of objective be read subject to the more certain specific provisions set out in the principles of development and the schedules to the instrument.
4The learned primary judge erred in failing to hold that the Historic Cultural Heritage Act 1995 either alone or alternatively when taken together with the Planning Scheme provided a statuary [sic] scheme which dealt specifically and comprehensively with sites of heritage value in the City of Hobart."
It is said that objective (g) in Pt 2 of Sch 1 of LUPAA, namely, the conservation of buildings of historical interest is subject to the general requirement stated in objective (b) namely the establishment of:
"… a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land ..."
The argument is misconceived. The general objective is a statement by Parliament of methodology to ensure appropriate development. It is the method required by Parliament to achieve the social, environmental and economic objectives stated in Sch 1 namely:
"(a)to require sound strategic planning and co-ordinated action by State and local government; and
(b)to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land; and
(c)to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land; and
(d)to require land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels; and
(e)to provide for the consolidation of approvals for land use or development and related matters, and to co-ordinate planning approvals with related approvals."
The statement of objective (g) establishes a criteria which forms the content of that methodology. The two statements are to be read together.
It is not for this Court to weigh the competing decisions. As Else-Mitchell J said in Terrigal Grosvenor Lodge Pty Ltd v Gosford Shire Council (1971-72) 25 LGRA 450 at 456 - 457:
"… it is important to bear in mind, as has frequently been pointed out, that the court is not a planning body and that the responsibilities of prescribing the rules, negative and positive, which are to regulate the use of land in a local governing area are vested by legislation in the minister and the State Planning Authority. It is for this reason that the judges of this Court have laid down the principle that whilst a draft scheme is under consideration by those entrusted with planning functions the Court should, in the exercise of its appellate jurisdiction, avoid giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form a planning scheme should take. What is more, the Court's decisions should be consonant with such town planning decisions as have been embodied in a scheme in course of preparation: (Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA, at p25)."
Insofar as the grounds of appeal already dealt with are repeated in these grounds they ought be dismissed.
Use of opinion evidence
Ground 5 of the notice of appeal states:
"5The learned primary judge erred in law in holding that the Tribunal was entitled to take into consideration the opinion of the witness Lennard and his evidence that he intended to recommend the inclusion of the site in the Heritage Registrar [sic] appended to Schedule F of the Planning Scheme."
The evidence of Mr Lennard, a Cultural Heritage officer, was that the building had heritage value and that it was his intention to recommend to the Council that the Scheme be amended to include the building in question.
The Tribunal was entitled to make use of the evidence. The learned primary judge dealt with the issue in the following terms at 11:
"One of the issues before the Tribunal was whether or not, as a matter of fact, the building had a heritage value. It was entitled to take into account the opinion of Mr Lennard and the fact that he backed up that opinion with evidence that he intended to recommend the inclusion of the site in the Heritage Register appended to Schedule F. Had the Tribunal been confined to a consideration of what buildings were on that Register as argued under ground 1, there is much to be said for the proposition that the fact that a Council officer intended to recommend an addition to it would have been quite irrelevant, but in light of my ruling in respect of ground 1, I consider Mr Lennard's evidence in this respect merely part of the material which the Tribunal was entitled to consider in determining whether the building had the value he asserted."
Counsel for the appellant concedes that the ground is integral to the primary argument addressed in the previous grounds, but contends that it nevertheless has an independent operation. He contends that it was possible that the Tribunal used the evidence as part of its reasoning process in determining that the power of the respondent was not confined by the pre-condition of identification and listing and, further, that the ground is relevant to reject any contention that if the appellant's construction of the Scheme is correct that the Tribunal was still entitled to give weight to the statement of opinion. Both propositions are rejected. If the appellant's primary argument be correct, then the evidence of the witness is irrelevant, since the basis of the judgment appealed has been shown to be erroneous and the appeal would succeed. If the primary conclusion of the learned primary judge be correct then the evidence was relevant to the determination of the Tribunal. It was required to determine two questions, namely, whether the respondent had power to prevent demolition and, if so, whether it had acted in accordance within appropriate planning principles. It was required to consider whether there had been a proper exercise of discretionary power and as such was entitled to pay regard to the opinion evidence.
Conclusion
The respondent and the Tribunal were permitted to take into account general statements of objectives and have recourse to principles stated by Parliament in their consideration of the application for demolition. The power of the respondent was not confined to a "listed" building. The Tribunal was entitled to pay regard to opinion evidence given on the issue of historic significance in resolving the competing values and interests involved in the planning appeal. The learned primary judge was correct in his conclusion.
In my opinion the appeal ought be dismissed.
File No FCA 19/2001
ROBT NETTLEFOLD PTY LTD (ACN 009 475 816)
v HOBART CITY COUNCIL
REASONS FOR JUDGMENT FULL COURT
EVANS J
23 October 2001
I have had the advantage of reading the reasons for judgment prepared by Crawford J and by Slicer J and agree with them that the appeal should be dismissed.