Robt Nettlefold Pty Ltd v Hobart City Council
[2001] TASSC 10
•16 February 2001
[2001] TASSC 10
CITATION: Robt Nettlefold Pty Ltd v Hobart City Council [2001] TASSC 10
PARTIES: ROBT NETTLEFOLD PTY LTD
v
HOBART CITY COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 79/2000
DELIVERED ON: 16 February 2001
DELIVERED AT: Hobart
HEARING DATE: 28 November 2000
JUDGMENT OF: Cox CJ
CATCHWORDS:
Local Government - Town planning - Consent and approval of councils - Matters for consideration of council - Heritage protection and controls - Existing building not on "Heritage Register" - Effect on planning approval - 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, cls 2.3.1, 2.3.2.
R v Wallis (1949) 78 CLR 529; Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, referred to.
Aust Dig Local Government [211]
REPRESENTATION:
Counsel:
Applicant: A C R Spence
Respondent: Not represented
Solicitors:
Applicant: Page Seager
Respondent: Not represented
Judgment Number: [2001] TASSC 10
Number of paragraphs: 12
Serial No 10/2001
File No LCA 79/2000
ROBT NETTLEFOLD PTY LTD v HOBART CITY COUNCIL
REASONS FOR JUDGMENT COX CJ
16 February 2001
The appellant applied to the respondent council for permission to demolish a two storey brick building at No 38 Barrack Street, Hobart and to construct on the site a private car park. The respondent refused to grant a permit upon the grounds inter alia that the application was contrary to the objectives of Sch 1 of the Land Use Planning and Approvals Act 1993 ("the Act"), in that it did not conserve a building and site which is of historical and aesthetic interest. The appellant appealed against this decision to the Resource Management and Planning Appeal Tribunal ("the Tribunal") which upheld the decision of the respondent and dismissed the appeal. The appellant now appeals to this Court upon the following grounds:
"1The Tribunal erred in law in that it relied upon the generalised objectives set out in paragraphs (f), (g) and (i) of Part 2 of Schedule 1 of the Land Use Planning and Approvals Act 1993, imported into the City of Hobart Planning Scheme 1982 by clause 2.3.2(e), to the exclusion of the specific provisions of Principle 20 and Schedule F of the Scheme which provide for the conservation of only specific listed buildings.
2The Tribunal erred in law in that it took into account an irrelevant consideration, namely the statement by a witness that he would recommend to the Hobart City Council that the building at 38 Barrack Street, Hobart, be included in the Heritage Register under the City of Hobart Planning Scheme 1982."
The building in question was built some one hundred years ago and 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 that the building was in serious disrepair, having been occupied recently by squatters 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 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, called by the appellant, expressed the opinion that there was nothing remarkable about the building, that the extent to which it contributed to the streetscape was very much weakened by the degradation which the streetscape had already suffered and that the mere fact of its occupancy and use over a significant continuous period did not qualify it for either aesthetic or historical significance. In these respects, the Tribunal said, in delivering its decision, that it preferred the more detailed evidence of Mr Lennard as a specialist in cultural heritage matters and that the Tribunal found that the subject building has substantially the historic and aesthetic significance attributed to it by Mr Lennard. This was a factual finding open to the Tribunal and this Court has no power to consider any challenge to it, the Court's power being confined to correcting any errors of law made by the Tribunal.
The initial decision of the respondent was made pursuant to its powers under the City of Hobart Planning Scheme 1982, as amended, ("the Planning Scheme"). The proposed car park, not falling within any defined use group under the Planning Scheme, was a discretionary use and by virtue of Principle 5 of that Scheme, the demolition of any building thereon was not permitted until a further or replacement development had been approved. Relevant parts of the Planning Scheme so far as heritage considerations are concerned, are as follows:
"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 Planning 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."
As I have said, the Tribunal accepted as a fact that the building had historic and aesthetic significance and concluded:
"24Having regard to all of the above matters, and 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."
In doing so, it rejected a submission, which is the subject of ground 1 of this appeal, but was there expressed by the Tribunal as follows:
"23It was contended for the appellant that the cultural and historical significance of the house was definitively and negatively established by the absence of any listing in the Heritage Register under the Planning Scheme, or any other register."
The Tribunal continued:
"Evidence was however given on behalf of Council by Mr Lennard that the Council was engaged in a long term updating of the Heritage Lists in the Planning Scheme, and that his recommendation would be that the subject building be included in that Register."
This is the subject of ground 2 of the appeal.
The contention in ground 1 is that because the site is not included in the list contained in Schedule F prepared pursuant to Principle 20, the Tribunal erred in accepting it as having heritage significance. The objective in the Act, Sch 1, of conserving buildings having such significance ¾ I use the expression "heritage significance" as a convenient synonym for the interests and values set out in par(g) ¾ is to be achieved, so it is contended, only in accordance with Principle 20, that is by being placed upon the Heritage Register. Reliance for this submission was placed upon Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 where Gavan Duffy CJ and Dixon J said, at 7:
"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."
There, a general power under the Commonwealth Conciliation and Arbitration Act 1904 - 1930, ss24(2) and 38(a) "to hear and determine disputes" was held not to authorise the granting of preference to Union members otherwise than in accordance with s40, which imposed specific restrictions upon the circumstances in which such preference might be given. At 8 their Honours continued:
"As sec 40 was enacted in 1904, it contained three provisoes which required the Court to take elaborate precautions for the purpose of bringing the application for preference to the notice of the persons and organizations who might be interested, to allow them to be heard and to avoid an oppressive use of the order for preference. It seems unreasonable to suppose that under the general power to determine disputes the Court was to be at liberty to disregard safeguards of such a nature."
The same Act was considered in R v Wallis (1949) 78 CLR 529 where Dixon J said, at 549 - 550:
"The powers of a conciliation commissioner to make a binding award or order with respect to a question how far employment is to be available to persons who are not members of a particular organization are, as I think, conferred by s 56 of the Commonwealth Conciliation and Arbitration Act 1904-1948 and do not go beyond the order or direction for preference which that section authorizes. That appears to me to be the true intention of the Act. The general power of a conciliation commissioner to make an order or award determining a dispute is to be found in s 38. The power is expressed in abstract terms without specifying or indicating what the determination may cover or what the award or order shall or may provide. Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him.
But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course."
Here, therefore, it is contended that although the Planning Scheme provides through its reference in cl 2.3.2 that the Council shall have regard to furthering the objectives of the Act, Sch 1, the express provision of Principle 20 that the Council prepare a list of specific buildings and sites to be of special significance and exercise control of development to require their conservation and enhancement to the maximum degree the Council considers practicable sets out the appropriate course to be followed for the conservation of the sites contemplated by the Act, Sch 1, par(g), and no other course is authorised.
Attractive though this argument may be, I do not think the fact that the council is obliged to prepare a list of buildings and sites of historical significance and to control development so as to conserve them as far as practicable should be seen as the only way of achieving the objective set out in the Schedule to the Act. Unlike the general power expressed in the Commonwealth Conciliation and Arbitration Act which was held not to authorise use of a specific power in a way otherwise than that laid down in the provision defining the limits of the specific power, cl 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 20 merely facilitates the achievement of that object rather than specifying an exclusive manner of achieving it.
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.
I was referred to 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. The legislation in that case, however, differed significantly from that in question here. There the use of the property opposed by the National Trust was a use as of right subject only to the requirement of obtaining a permit in respect of height and the general power relied upon had been changed from one dependent upon an objective of "8 The preservation of objects and areas of scientific historical or architectural interest or natural beauty" to one dependent upon "8 The conservation and enhancement of buildings, words, objects and sites specified as being of architectural, historical or scientific interest … ". Hence the Court said 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 ¾ '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."
Here the objective in the Schedule is not confined to sites or buildings specified in any manner. I was also referred to the case of Woollahra Municipal Council v Andriotakis & Ors (1998) 101 LGERA 194, a decision of the New South Wales Court of Appeal. There, too, the legislation was quite different and the court was influenced by the fact that prior to the passage of the Local Government Act under which the council had purported to act, the Parliament had enacted an Environmental Planning and Assessment Act which provided a statutory scheme under which, as Sheppard AJA observed at 216, "Heritage matters are specifically and comprehensively dealt with." Not so here. The Historical Cultural Heritage Act 1995 which arguably might have been prayed in aid of an argument similar to that advanced in the last-mentioned case post-dated the Act.
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.
As to ground 2, I am of the view that this likewise fails. 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. The appeal is dismissed.
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