Supreme Court of SA|1991-10-02|Before: Debelle J, Mr J

ADELAIDE DEVELOPMENT CO PTY LTD v. THE CORPORATION OF THE CITY OF ADELAIDE and ANOR No. 1471 of 1991 Judgment No. 3057 Number of pages - 17 Town Planning (1991) 56 SASR 497 [1991] SASC 3057 (2 October 1991)

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LAND AND VALUATION DIVISION Debelle J.(1)

CWDS Town Planning

Application to Council of the City of Adelaide for planning consent to demolish building and erect hotel - Subsequent entry of the building on Interim List of State Heritage Items and making of conservation order under South Australian Heritage Act, 1978 - Conservation order has the effect that it is unlawful to demolish the existing building - Whether the entry on Interim List and conservation order prevent Council from dealing with the application - Whether if all necessary consents obtained applicant can proceed to demolish existing building and construct new building - Meaning of "will directly affect" in s.24(4) and (5) of the City of Adelaide Development Control Act, 1976 - Effect of s.42(1) in same Act - South Australian Heritage Act, 1978, passim - City of Adelaide Development Control Act, 1976, ss.4, 24 and 24a.

HRNG ADELAIDE, 20 September 1991 #DATE 2:10:1991 Counsel for Plaintiff: Mr B R M Hayes QC with Mr J R Botten Solicitor for Plaintiff: Norman Waterhouse Counsel for 1st Defendant: Mr W L Rudd Solicitor for 1st Defendant: Corrs Chambers Westgarth Counsel for 2nd Defendant: Mr C J Brooks Solicitor for 2nd Defendant: Crown Solicitor

ORDER His Honour published these reasons and indicated that he would hear the parties as to the terms of the orders which ought to be made.

JUDGE1 Action for declarations and other relief. DEBELLE, J. The parties have, very commendably, agreed the relevant facts and documents. 2. The facts might be summarised this way. The plaintiff ("ADC") seeks to develop land which it owns on the south-western corner of North Terrace and Gawler Place, Adelaide, which is 188 North Terrace, Adelaide. On the site stands a building known as Gawler Chambers. On 21 December 1990 ADC lodged with the Corporation of the City of Adelaide ("the Council"), the first defendant, an application for planning approval pursuant to the City of Adelaide Development Control Act, 1976 ("the City Act") to demolish Gawler Chambers and in its place to erect an eleven storey hotel. While the Council was considering whether it should grant planning consent, the Minister for Environment and Planning ("the Minister"), the second defendant, took steps to enter Gawler Chambers on the Interim List of State Heritage Items under the South Australian Heritage Act, 1978 ("the Heritage Act"). In addition, the Minister made a conservation order pursuant to s.22 of the Heritage Act. The entry on the Interim List and the making of the conservation order were repeated in order to ensure validity. The effect of the entry on the Interim List and the conservation order was to make it an offence for ADC to damage or destroy the item which is the subject of the order. The Council says that it cannot now consider ADC's application while the conservation order remains in force. Although there are a number of questions for determination, the central questions in this action are whether ADC is entitled to require the Council to consider and determine its planning application and whether, if all necessary consents are obtained, ADC is entitled to proceed with its proposed development in accordance with the terms of the consent, notwithstanding the existence of the conservation order. The Legislative Background 3. Before dealing with the facts in greater detail, it is useful first to note the legislative background. 4. The issues in this action involve a consideration of both the Heritage Act and the City Act. For the reasons which appear later, an important provision is s.42(1) of the City Act which provides: "Where an application is made under this Act for approval to undertake a Development, the law to be applied by the relevant authority in deciding the application, and the law to be applied in resolving any issues arising from the decision in any proceedings (whether brought under this Act or not), shall be the law in force as at the time the application was made." 5. The Heritage Act, as its long title states, is an Act to preserve, protect and enhance the environmental, social, and cultural heritage of the State. One means by which preservation and protection of the heritage of South Australia is effected is to place items on the Register of State Heritage Items ("the State Register"): see s.11. An item may be either land, buildings or a structure, or part of a building or structure: s.4. A procedure is prescribed for entry of an item on the Register or its removal: see Part III. Provision is also made in s.15 for an Interim List of heritage items. The Minister must enter a description of an item on the Interim List where either the Minister has, by public notice, stated an intention to do so or, in the Minister's opinion, the item should be registered and it is necessary or desirable to provide immediate protection in respect of the item by making a conservation order under Part V of the Act. As will be seen, a conservation order is designed to prevent any damage to or destruction of a heritage item. Control of the development of heritage items is effected with the assistance of both the Planning Act, 1982 and the City Act. Among the kinds of development regulated and controlled by the Planning Act is development of heritage items in all parts of the State except the City of Adelaide. The planning controls effected by the City Act include development of heritage items within the area of the City of Adelaide. The regime in the two Acts is very similar but not identical. It is necessary in this action to refer only to the regime under the City Act. 6. Among other things, "development" is defined in the City Act to include "the removal or alteration of, or addition to, any part of the building that is a heritage item": see s.4 of the City Act and Regulation 3 of the City of Adelaide Development Control Regulations, 1987. In addition, s.4 of the City Act defines "development" to include "the demolition of any buildings". The City of Adelaide Development Control Regulations define a heritage item to mean an item of State heritage or an item of City heritage. The items of City heritage are listed in the Regulations ("the City Register"). The City Act defines items of State heritage to be items entered on the Register or Interim List pursuant to the Heritage Act. Some buildings in the City of Adelaide are entered on both the City and the State Registers. Section 24 of the City Act, which provides for some procedural matters in relation to applications for development within the City of Adelaide, requires the Council to refer applications for a development which will directly affect State heritage items to the Minister and to the City of Adelaide Planning Commission ("the City Planning Commission"). The Council cannot approve such a development until it has the concurrence of the City Planning Commission. The City Planning Commission in turn cannot concur in the decision of the Council until it has received and had regard to the representations of the Minister. This is the combined effect of subsections (4) and (5) of s.24 and of s.24a of the City Act. The meaning of "will directly affect" in subsections (4) and (5) of s.24 is examined later in these reasons. In addition, Principles 19 and 20 of the Principles of Development Control for the City of Adelaide contain provisions to which the Council must have regard when considering an application to develop a State Heritage Item or a City Heritage Item or an application for a development which adjoins an item of State heritage or a City Heritage Item. If either the Council or the City Planning Commission refuse planning consent, the applicant may appeal to the City of Adelaide Planning Appeals Tribunal: s.28. 7. In addition to these controls, the Heritage Act invests the Minister with power to make conservation orders. Conservation orders may only be made in respect of items on either the Register or Interim List or in respect of a State Heritage Area: see ss.21 and 22. The power may be exercised "where, in the opinion of the Minister, it is necessary or desirable to do so": s.21. The effect of a conservation order is to prevent any alteration to or destruction of a heritage item. The power to make a conservation order is given to the Minister alone. Before making an order, the Minister is required to give notice to interested parties and to consult with the South Australian Heritage Committee established under the Heritage Act and must, when making the order, have regard to the submissions made by interested parties and to the representations of the Committee: see s.21. A conservation order, once made, will cease to have effect only if the item is removed from the Register or the Interim List or if the Minister revokes the order: s.23. The Minister also has power to make orders in urgent cases, "where, in the opinion of the Minister, it is necessary or desirable to provide immediate protection in respect of an item on the Register or on the Interim List": s.22. In urgent cases, the Minister may make the order before undertaking the process of consultation prescribed by s.21(2). In such a case, the Minister must immediately undertake that process and within 60 days confirm or revoke the order: s.22. The period of 60 days may, by order of the Planning Appeal Tribunal, be extended for a further period of up to six months: s.22(2)(b). When confirming or revoking an urgent order, the Minister must have regard to the submissions made by the owner of the heritage item or any other interested person and any other representations made by the Committee: s.22. 8. The means by which compliance with conservation orders is enforced is provided in s.24. It provides:- "A person who damages or destroys an Item or a State Heritage Area is guilty of an offence." In order to interpret s.24 it is necessary to read it with s.20 which provides:- "Unless the contrary intention appears, this Part applies to an Item or State Heritage Area that is the subject of an order under this Division." Sections 20 and 24 are both contained in the same Division of the Heritage Act. When ss.20 and 24 are read with the definition of an Item in s.4 and with ss.21 and 22, which provide that conservation orders may only be made in respect of items which are entered on the Register or Interim List, it can be seen that the effect of s.24 is that a person who damages or destroys any land, building or structure which is on the Register or Interim List and which is the subject of a conservation order is guilty of an offence. 9. Thus, the Minister has power to make a conservation order at any time when, in the opinion of the Minister, it is necessary or desirable to do so or, in urgent cases, it is necessary or desirable to provide immediate protection in respect of the heritage item. In contrast to the rights of appeal which are provided under both the City Act and the Planning Act from a refusal to grant a planning consent, the Heritage Act provides no avenue of appeal from an exercise by the Minister of the power to enter an item on the Register or the Interim List or the power to make a conservation order. As will be seen, one question in this action, is whether s.42(1) of the City Act affects the exercise of these powers. 10. I emphasise that this brief note does not deal with all of the measures designed to protect heritage items. The note is intended only as a background to the issues in this action. The Factual Background 11. Since 28 September 1945, ADC has been the registered proprietor of the land on the south-western corner of North Terrace and Gawler Place, Adelaide. It is the land at 188 North Terrace. On this land is a building known as Gawler Chambers. Until purchased by ADC, the land had previously been owned by the South Australian Company. The South Australian Company played a major part in the development of South Australia. It is said that the South Australian Company had owned the site from the foundation of the colony of South Australia, had built Gawler Chambers, and until 1945 had used Gawler Chambers as its head office. Heritage Listing Rejected 12. From time to time consideration has been given to placing Gawler Chambers on either the City Register or on the State Register. On three occasions, it has been decided not to include Gawler Chambers on either the City Register or the State Register. On the first occasion, in 1982, Gawler Chambers was investigated as part of the City of Adelaide Heritage Study for possible inclusion on the City Register, but on 11 June 1982, the Lord Mayor's Heritage Advisory Committee, the committee convened by the Council for the purpose of advising the Council on properties to be included on the City Register, resolved that Gawler Chambers not be included. In 1985, the Minister reviewed a number of properties, including Gawler Chambers, for possible inclusion on the State Register. Later in 1985, following that review, the Minister on the advice of the South Australian Heritage Committee decided not to register Gawler Chambers on the State Register. The third occasion was on 23 December 1987, when new regulations under the City Act were made. Those regulations included the City Register and prescribed the items to be included on the City Register. Gawler Chambers was not then and is not now included as an item on the City Register. On 25 February 1985, the Council resolved, in conjunction with its quinquennial review of the City of Adelaide Plan, to re-examine heritage matters in the City of Adelaide and to give consideration to adding items to the City Register. On 18 August 1986 the Policy and City Development Committee of the Council adopted various policies and published such policies as Part I of the City of Adelaide Plan 1986-1991, including the following: "Review and update as part of the Plan Review process the Register of City of Adelaide Heritage Items to reflect the environmental, social and cultural heritage of the City and to ensure an adequate representation of the historical development of the City". The review of the City Register was commenced in or about November 1988. 13. Since about 1985 ADC has, from time to time, considered a number of different proposals for redevelopment of the Gawler Chambers site. None of them was considered to be financially viable and ADC did not proceed with them. Between 1987 and 1990 different proposals have been the subject of discussion and correspondence between officers of ADC and the Council. These discussions and correspondence did not prompt the Council to place Gawler Chambers on the City Register. ADC Lodges Planning Application 14. In or about July and August 1990 a firm of architects called KMH Neighbour Lapsys Architects Pty Ltd ("KMH") approached ADC on behalf of a national hotel operator which was examining the Gawler Chambers site for the purpose of constructing a so-called "all suites hotel". In September 1990 KMH presented preliminary plans of the proposed hotel to ADC for its information. ADC decided to pursue the proposal. The upshot was that on 21 December 1990 KMH, as agents for ADC, lodged an application with the Council seeking planning approval pursuant to the City Act for the demolition of Gawler Chambers and, in its place, to construct an eleven storey hotel. With the application were lodged plans of the proposed hotel and a report which provided further information concerning the proposal. Heritage Listing Reconsidered 15. In the meantime, steps were being taken by the Council with a view to considering yet again whether Gawler Chambers should be listed on the City Register. On 22 October 1990, the Council resolved to place on public exhibition its proposals to amend the City Register by including an additional 104 items. Gawler Chambers was included in those items. The proposal was placed on public exhibition on 23 October 1990. On 25 October, ADC received a letter from the Council dated 23 October advising that Gawler Chambers was being considered for inclusion on the City Register. A document enclosed in the letter advised that the Advisory Committee assisting the Council would be applying the same criteria as were used to evaluate the heritage implications of the building in 1982. The Council enclosed a copy of the criteria in its letter. On 25 October, notice was published in the Government Gazette of the Council's intention to review the City Register. 16. On 14 November 1990, ADC received a letter from the Council dated 12 November to the effect that the Council had appointed a Heritage Advisory Committee to assist it in the consideration of submissions relating to the Council's proposal to list properties on the City Register. The letter re-affirmed the advice contained in the Council's letter of 23 October that the Council would use the same criteria as had been used to evaluate the heritage implications of the building in 1982 and again enclosed the criteria in its letter. By letter dated 16 November ADC wrote to the Council objecting to the proposal to include Gawler Chambers on the City Register. 17. On 21 December 1990, the day on which the application for planning consent was lodged, both KMH and the solicitors for ADC wrote to the Council objecting to the proposal to list Gawler Chambers on the City Register. Later, the solicitors for ADC made oral submissions opposing the proposal to list Gawler Chambers on the City Register. As will be seen, Council has not yet resolved to include Gawler Chambers on the City Register. Application Referred to Minister 18. Having received the development application on 21 December 1990, the Council wrote on 4 January 1991 to the Minister, informing the Minister that the application had been lodged. Copies of the application and of the plans and other documentation which accompanied the application were also sent to the Minister. The Council asked the Minister for her comments on the proposal. The letter read: "Re: Development of a Site that is Adjacent to a State Heritage Item An application has been received pursuant to the provisions of the City of Adelaide Development Control Act, 1976, as amended, to demolish an existing building and construct an eleven storey building for use as a hotel at 188 North Terrace, Adelaide, (Gawler Chambers). Enclosed are copies of the Application Form No.P3893; Plan No.

P3893; and any accompanying documentation received, for your consideration pursuant to Principle 20 (Development Adjoining

Heritage Items) of the City of Adelaide Plan 1986-1991." 19. The heritage item adjacent to the development proposed by ADC is the Queen Adelaide Club. It is erected on an adjoining site, immediately to the west of the Gawler Chambers site. Though adjoining, the two buildings are not contiguous. The Queen Adelaide Club is an item on both the State Register and the City Register. Although it is necessary for the Council to have regard to Principle 20, Principle 20 did not require the Council to refer the proposal to the Minister. If the Council had a statutory obligation to refer the proposed development to the Minister, that obligation is to be found in s.24(4) of the City Act, which is discussed below. 20. From time to time from January until April 1991 the Council made various requests of ADC for further information in relation to the development application. These requests were answered by the ADC. In addition, meetings were held between officers of ADC and officers of the Council for the purpose of discussing the design of the proposed hotel and other aspects of the proposal. The meetings were held on 31 January and 10 April. The proposal was amended in light of these discussions and amended plans giving effect to these alterations were lodged with the Council on 11 April. 21. In a letter dated 17 January 1991, the Council asked ADC for a statement "justifying the impossibility of adaptation of the building" at 188 North Terrace. By letter dated 29 January ADC responded in the following terms: "In reference to the final point of your letter seeking justification of the impossibility of adaptation of the existing building structure this is clearly outlined in our report accompanying the application. Very many proposals over a considerable period have been examined by the Adelaide Development Company but in all cases have been found to be seriously unviable because of the need to upgrade the structural integrity of the existing structure. The necessity to upgrade the basic structure due to the inadequacy of the sub-soil conditions is further aggravated when dealing with the requirements of the Building Regulations and the Building Fire Safety Committee in reference to the existing building fabric. To superficially upgrade as a building is clearly inadequate when reviewing many of the appropriate uses for this site and this is clearly the conclusion that Adelaide Development Company have arrived at in proposing its demolition. In this final conclusion it was felt that the aspects of Design, Streetscape and Desirable Use and Activity available from the existing structure, could be more relevantly provided within a "new structure" that has the added benefit of fitting the present guidelines of planning and desired

future character of the City Plan for this zone. The present building envelope is also quite inadequate in respect to Building Area for many of the uses that have been examined, notwithstanding the scope of development over which the cost of the

necessary upgrade can be amortised commercially. Overall, it has been our professional judgement and advice to the Adelaide Development Company that demolition is the only real solution, and the satisfaction of the matters of design, streetscape

and use should be addressed in any new building proposal." 22. On 4 March 1991 the National Trust of South Australia wrote to the Minister asking the Minister to place Gawler Chambers on the Interim List of the State Register. Minister's Response 23. On 15 March 1991 the Minister wrote to the Council advising it that she did not wish to make any representations in relation to the ADC proposal. The letter reads: "Thank you for referring to me for comment, an application relating to hotel development at 188 North Terrace Adelaide. I have examined the plans and believe that the proposed development does not directly affect an item of State Heritage and therefore would have no representations to make on the proposal should it be referred to me under the City of Adelaide Development Control Act. Although the Gawler Chambers building, which exists on the site, was considered for entry on the Register of State Heritage Items previously, such entry was rejected by the South Australian Heritage Committee. Since that time however, changing public opinion and community attitudes may have resulted in the Committee drawing a different conclusion if considering registration today. I understand that Council is again seeking to have the building placed on the Register of State Heritage Items. There is no doubt in my mind that the present building contributes to the amenity and character of North Terrace and a strong case could be made for its preservation. Although I am at present unable to legally become involved in this matter I would indicate to Council my support for protecting the

existing building." 24. With respect, the second paragraph of the Minister's letter is expressed a little elliptically. But it is clear that the Minister is saying that it is her belief that the proposal does not directly affect the Queen Adelaide Club. Gawler Chambers was not on any list of heritage items and so the Club is the only item of State heritage to which the Minister could be referring. The Minister then goes on to note that Gawler Chambers is not on the State Register and expresses her support for protecting the building. 25. On 22 March 1991 the National Trust wrote to the Council asking it to defer its consideration of the development application until Gawler Chambers had been placed on the City Register. An Urgent Conservation Order 26. At its meeting held on 22 April 1991, the Council continued its review of the City Register. The Council resolved that further consideration of a number of items, including Gawler Chambers, be deferred to enable further information to be made available to members of the Council. It further resolved to ask the Minister to place an interim conservation order on all of the items then under consideration by the Council for possible inclusion on the City Register. By letter dated 24 April 1991 the Acting City Manager informed the Minister of the resolution. The Council's letter included a list of the places to which the Council's resolution referred, which list mentioned Gawler Chambers. 27. By letter dated 30 May 1991 the Minister wrote to the Council advising that she had considered the application by ADC to develop the Gawler Chambers site in light of the request in the Council's letter of 24 April to list it and other items on the Interim List. She informed the Council that she had issued an urgent conservation order and had placed the building on the Interim List. The letter reads: "The Minister for Environment and Planning has given consideration to the development application affecting Gawler Chambers, 188 North Terrace, in the light of Council's request of 24 April that she Interim List the items proposed by Council for inclusion on the Register of City of Adelaide Heritage Items. On the evidence before her, the Minister believes that the building

is part of the environmental heritage of the State having significant aesthetic, architectural and historical interest. She has therefore issued an Urgent Conservation Order and placed the building on the Interim List. A copy of the Order is attached for Council's information." Planning Approval Recommended 28. On 3 June 1991, the Planning and Environment Committee of the Council considered, for the first time, ADC's application for planning approval. The Council's administrative staff had intended to include the application in the business for the April meeting of the Committee but ADC had asked that it be deferred because of amendments to the plans prepared as a result of consultation with officers of the Council. It had been deferred from the May meeting, a Council officer said, because the meeting followed soon after the annual Council election. The agenda papers for the June meeting set out the background to the proposal, the relevant considerations and concluded with a number of recommendations. It is not necessary to recite the whole of the fairly detailed discussion concerning the proposal which was contained in the agenda papers. It is sufficient to note the following: "4.3 It is noted that the Gawler Chambers has been recommended by the City of Adelaide Heritage Advisory Committee for inclusion on the Register of City of Adelaide Heritage Items. The basis of the recommendation for inclusion derives primarily from the building's association with the South Australian Company which built Gawler Chambers in 1912-1913. The South Australian Company was largely instrumental in the establishment and settlement of the colony and no other building within the City has such a clear link with the Company. However, this application has to be determined according to the law operating at the time the planning application was received. At that time, the existing building was not listed on

either State or City Heritage Registers. The Minister for Environment and Planning declined to provide interim listing on the State Heritage Register for this building and others identified as potential additions to the City of Adelaide Heritage Register prior to this planning application being received. Such interim listing would have effectively provided a temporary status and protection under the aegis of the South Australian Heritage Act until the heritage status had been determined by the appropriate bodies. The Minister's comments regarding Gawler Chambers are summarised in paragraph 6.2 of this report. ... 5.7 Principle 20 applies in this instance and consequently, the proposal has been referred to the Minister for Environment and Planning, who has advised that the proposal is not considered to directly affect the adjoining heritage item and therefore no representations are made in this regard. However, as the property adjoins a State Heritage item, the application will need to be referred to the City of Adelaide Planning Commission. ... 6.2 The Minister for Environment and Planning has commented on the proposal, namely that, although the building was previously rejected by the South Australian Heritage Committee, changing community attitudes and public opinion may result in the Heritage Committee drawing a different conclusion if considering registration today. She indicates her support for protecting the existing building, see paragraph 4.3. Conclusion 7.2 However, in terms of movement and access, the location of the site at a busy corner trafficked by cars entering short-term car parks and the absence of any possible taxi drop-off areas, would render the proposal contrary to Principles 32 and 34. The revised access arrangement, which is subject to Ministerial dispensation, now complies with the relevant Principles to the extent that access during non-peak activity periods of the adjoining car park appears workable. 7.3 On balance, the proposal has merit in providing a building which contributes to the existing character of North Terrace, and proposes a use which would be compatible with nearby retail and office activities. 7.4 Recording of the existing building prior to demolition is recommended." 29. The report recommended that the consent of the City of Adelaide Planning Commission be sought pursuant to s.24(5) of the City Act for the approval of the application to demolish Gawler Chambers and to erect the eleven storey hotel. The report also recommended that, subject to the consent of the City Planning Commission, the Council approve the application subject to certain conditions. The report had been written before 30 May. Legal Advice Sought 30. Having received the Minister's letter dated 30 May 1991, the Council wrote on the same day to its solicitors referring to the entry of Gawler Chambers on the Interim List and the conservation order. The letter sought advice as to how it should deal with the application. On 3 June, the Council's solicitors wrote a letter of advice to the Council and the letter was tabled at the meeting of the Council's Planning Committee that evening. The letter sets out the questions asked by the Council and the advice: "We are asked:- '(1) Do the provisions of Section 24(4) of the City of Adelaide Development Control Act now apply, thus requiring Council to refer the application to the Minister for advice prior to considering it? (2) In view of the fact that a report on the application has already been prepared and distributed on the premise that it will be considered at the meeting of Council's Planning and Environment Committee on Monday, 3rd June 1991, should the Committee now be advised that it is precluded from determining the application until Ministerial advice has been received? (3) If the answer to (1) and (2) above is "yes", and the

Council seeks and obtains the advice of the Minister, is Council then required to determine the application having

regard to the interim listing and the conservation order, notwithstanding the provisions of Section 42 of the City of Adelaide Development Control Act?' We think yes to all three questions, for the following reasons ... " 31. It is unnecessary now to set out the grounds upon which the advice of the Council's solicitors is based as those grounds are dealt with elsewhere in these reasons. Application Again Referred to Minister 32. In consequence of the advice it received the Committee resolved that the application be referred to the Minister pursuant to the provisions of s.24(4) of the City Act. The Council adopted the resolution of the Planning and Environment Committee at its meeting on 17 June 1991. The matter was referred to the Minister in accordance with the resolution and on 20 June 1991 the City Manager wrote to ADC informing it of that step. ADC Commences This Action 33. On 26 June 1991 ADC commenced this action, seeking declarations and other ancillary remedies. Shortly stated, the declarations sought by ADC were to the effect that the Minister had not acted in accordance with the procedures prescribed in the Heritage Act so that both the entry on the Interim List and the conservation order made on 30 May 1991 were invalid; that the Council was not required to refer the application to the Minister pursuant to s.24(4) of the City Act; and that, if ADC obtained all necessary approvals under the City Act and the Building Act, 1976 to construct the hotel and to demolish Gawler Chambers, it can implement the approvals notwithstanding the entry on the Interim List and the conservation order. For her part, the Minister responded on 15 August 1991 by making a fresh entry of Gawler Chambers on the Interim List pursuant to s.15 of the Heritage Act. On 19 August, the Minister issued a conservation order pursuant to s.22 of the Heritage Act. The parties acknowledge that the entry of Gawler Chambers on the Interim List on 15 August and the making of the second conservation order on 19 August were done in accordance with the provisions of the Heritage Act. When this action was called on for hearing, counsel for the Minister sought leave to withdraw as the Minister did not wish to present any argument in relation in the issues as between ADC and the Council. Leave was granted. 34. Given that ADC acknowledges that there is now a valid entry of Gawler Chambers on the Interim List and a valid conservation order in respect of the building, the questions remaining for decision are whether the Council was required to refer the application to the Minister in accordance with s.24(4) of the City Act and whether, if ADC obtains all necessary approvals, it will be able to proceed to demolish Gawler Chambers and build the hotel notwithstanding the existence of the conservation order. I deal first with the latter question. The Effect of the Conservation Order 35. Expressed another way, the question is whether the entry on the Interim List and the conservation order, both of which were made after ADC had lodged its application for planning consent with the Council, have the effect of preventing the Council from considering and determining the application and, if the Council grants consent, preventing ADC from acting in accordance with the consent. The resolution of this question turns on the terms of s.42(1) of the City Act. For convenience, I repeat its terms: "(1) Where an application is made under this Act for approval to undertake a Development, the law to be applied by the relevant authority in deciding the application, and the law to be applied in resolving any issues arising from the decision in any proceedings (whether brought under this Act or not), is the law in force as at the time the application was made." 36. Mr Rudd, who appeared for the Council, acknowledged that the effect of s.42(1) was that the law to be applied by the Council in determining the application was the law in force on the date when the application was lodged. However, he contended, the entry on the Interim List and the making of the conservation order did not effect a change in the law. They were, he said, no more than an exercise of the powers vested in the Minister by the Heritage Act, which was a law in force on 21 November 1990. The exercise of those powers by the Minister did not change the law: it did no more than effect a change in the factual situation to which the relevant law applied. This argument misunderstands the effect of the exercise by the Minister of her powers. 37. When, pursuant to the Heritage Act, a building is entered on the Register or Interim List and a conservation order is made by the Minister, the entry and the conservation order effect a change in the law to which the owner of the building will be subject. Until an entry is made, the owner of the building is not subject to the provisions of the Heritage Act and is at liberty to develop the building as he thinks fit provided he complies with such other laws as are applicable. However, once a building is entered on the Register or Interim List, the owner then becomes subject to the operation of the Heritage Act. The effect of the entry is to impose on the owner of the building a legislative regime to which he had not been subject before the entry. For example, but for the entry of an application to alter or demolish a building in the City does not have to be referred to either the Minister or to the City of Adelaide Planning Commission pursuant to s.24 of the City Act, unless it otherwise will directly affect a State heritage item. Were it not for the entry, the Minister would not be able to make a conservation order pursuant to either s.21 or s.22. Were it not for the entry and the making of a conservation order, s.24 of the Heritage Act would not prohibit the demolition of a building. In other words, the entry alters the rights and obligations of the owner of the building. The rights and obligations before the entry are different from those after the entry. The entry, therefore, effects a change in the law which shall apply in respect of the building. 38. It is to be noted that s.42(1) provides two occasions for the operation of the law in force at the time of the application. First, it is the law to be applied by the relevant planning authority when considering and determining the application for planning consent. Second, it is the law to be applied in resolving any issues arising from the decision in any proceedings, whether brought under the City Act or not (emphasis added). The width in which this second limb is expressed makes it clear that the holder of the planning consent is able to utilise that consent notwithstanding a change in the law. 39. As to the purpose and effect of s.42(1), I respectfully adapt some observations made by Jacobs J when speaking of s.57(1), the equivalent provision in the Planning Act to s.42(1). The first part of s.42(1) expressly directs attention to the decision-making process. When he makes his application, an applicant for planning approval is entitled to know the law by reference to which his application will be determined and to frame and prepare his application accordingly. If the application is to be affected, and perhaps defeated, by a subsequent alteration to the law, that would give to the alteration to the law a retrospective operation which is objectionable in principle unless clearly authorised by statute. An applicant is entitled to regulate his affairs on the faith of the planning law in force as at the date of the application: c.f District Council of Munno Para v. Remove-All Rubbish Co Pty Ltd (1985) 41 SASR 188, 205. The effect of s.42(1) is that, when an applicant for planning approval lodges his application, the law by reference to which the application is to be decided crystallises: it is the law then in force. It would represent an exercise in futility if a planning authority was obliged to consider the application according to the law in force at the date of the application, but the successful applicant could be frustrated from enjoying the benefit of the consent by reason of a change in the law and would even be subject to penalty pursuant to s.24 of the Heritage Act if he demolished the building. For that reason, s.42(1) goes on to provide in the second limb that the law in force at the date of the application will be relevant in resolving any issues which arise out of that consent. 40. Thus s.42(1) has the following operation in this action. On 21 December 1990, when ADC lodged its application with the Council to redevelop the Gawler Chambers site, there was no entry of Gawler Chambers on either the Register or the Interim List. There was then no provision of the Heritage Act which governed the question of the demolition of Gawler Chambers. The law which prevented demolition of Gawler Chambers was the City Act. By virtue of the first limb of s.42(1), ADC is entitled to require the Council to deal with its application on the footing that Gawler Chambers is not subject to the Heritage Act and there is no conservation order which prevents its demolition. 41. If ADC obtains all necessary consents, the question whether it can enjoy the benefit of those consents and demolish Gawler Chambers without committing a breach of s.24 of the Heritage Act is an issue arising from the decision to grant the planning consent and, as such, will be resolved by applying the second limb of s.42(1). According to the law to which it was subject at the time of the application, ADC could demolish Gawler Chambers if it received planning approval for its proposed development. Though the Heritage Act was in force, ADC was not subject to it because Gawler Chambers was not listed as a heritage item. By virtue of s.42(1), if ADC obtains consent it can, therefore, enjoy the benefit of that consent and, notwithstanding the subsequent entry on the Interim List and the making of the conservation order, demolish Gawler Chambers without committing a breach of s.24. That is a consequence of the fact that s.42(1) enables an applicant to enjoy the benefit of a planning approval according to the terms of the law in force at the time of the application. In short, s.42(1) cloaks both the application and, if it is granted, the planning consent with a kind of immunity from a change in the law after the application has been lodged. Its effect is to invest the holder of the planning consent with power to proceed in accordance with that consent notwithstanding a change in the law. The effect of s.42(1) would be frustrated if the entry on the Interim List and the making of the conservation order had the effect of preventing ADC from proceeding in accordance with its planning consent. 42. ADC seeks, among its prayers for relief, an order in the nature of mandamus to compel the Council to hear and determine the application according to law. Mr Rudd submitted that the Court, in the exercise of its discretion, should not make the order. That, he said, would require the Council to approve a development which, by dint of the conservation order, would involve the commission of an unlawful act, namely, the demolition of Gawler Chambers in breach of s.24 of the Heritage Act. He relied on the general rule that a valid consent or licence cannot be granted to perform an unlawful act: see Redbridge London Borough Council v. Jaques (1971) WLR 1604. For the reasons already expressed, the effect of the second limb of s.42(1) is that, if the Council does grant planning approval to the proposed development, ADC can proceed without being in breach of s.24 of the Heritage Act. The grant of consent does not, therefore, authorise the commission of an unlawful act and the Council should hear and determine the application. 43. Mr Rudd also contended that the purpose of Part V of the Heritage Act would be frustrated if conservation orders did not operate where a planning authority was in the process of considering an application for planning approval. The Minister might only learn of an intention to alter or demolish a State heritage item once the application had been made. Whatever force there might be in that contention, it must yield to the clear words of s.42(1). In any event, extensive controls exist in the City Act to ensure that proper consideration is given to the question whether the development of a State heritage item should be permitted. In particular, the proposal must be approved by the Council and the Council cannot grant its approval without the concurrence of the City Planning Commission which must have regard to any views expressed by the Minister. Is Referral Again to the Minister Required? 44. The next question is whether the Council is required to deal with the application pursuant to s.24(4) and (5) of the City Act, which provide:- "(4) Each application under this section in relation to a Development that will directly affect, or has directly affected, an item of State heritage must be referred by the Council to the Minister responsible for State heritage. (5) The Council cannot approve a Development that will directly affect, or has directly affected, an item of State heritage without the concurrence of the Commission." The resolution of this question turns on the meaning of the expression which is common to each provision, namely, "a Development that will directly affect, or has directly affected, an item of State heritage". 45. The expression " will directly affect" in this context is not a term of art. It means to have an immediate effect upon or to have an immediate influence upon: see the definitions of "directly" and "affect" and "affected" in the Oxford English Dictionary and the Macquarie Dictionary. I am conscious that in attempting to define the expression, I am resorting to synonyms but the subsections are, I think, intended to apply when the proposal will produce an effect upon or have some consequence for an item of State heritage. The expression "will directly affect" suggests a causal relationship between the proposed development and a heritage item. The effect could be detrimental or beneficial. The word "directly" requires that the causal effect of the proposed development be direct or immediate: it is intended to exclude that which is indirect or remote. In legislation such as the Heritage Act, the expression "will directly affect" should receive a more liberal interpretation that it might receive in other contexts. The effect may not, therefore, be limited to physical effects. It is, I think, wide enough to include an effect upon a heritage item such as overshadowing. It is wide enough also to include an effect occurring during the period of the works necessary for construction as well as an effect caused by the completed development. Thus, there may be a direct effect in the case of adjoining sites, where the development may involve an excavation which affects the rights of support of an adjoining heritage building. Whether a proposal will directly affect a heritage item will be a question of fact and degree in every case and each case will have to be considered in the light of its own facts and circumstances. Where it is not clear from the plans whether the proposal will directly affect the heritage item, it would be proper for the Council to make enquiries of the applicant to determine that question. 46. Where the proposed development is in respect of a building which is an item of State heritage, it is clear the proposal will directly affect the item and the Council is required to proceed in accordance with s.24(4) and s.24(5). The Council must, therefore, refer such an application to the Minister and must not approve the application unless it receives the concurrence of the City Planning Commission. For the reasons already given, Gawler Chambers was not an item of State heritage at the time of the application and so the Council does not have to comply with subsections (4) and (5) of s.24 by reason only of the subsequent entry of Gawler Chambers on the Interim List. 47. However, the expression "will directly affect" is not, I think, limited to proposals to develop items of State heritage. If that were so, the draftsman would have expressed subsections (4) and (5) of s.24 of the City Act in different terms, for example, by providing that the subsections operate "where a development of an item of State heritage is proposed". Thus the Council must also comply with subsections (4) and (5) where, say, a proposed development will directly affect another building which is an item of State heritage. 48. The fact that a proposed development will directly affect a heritage item is, of course, not a reason for refusing approval; it is no more than a criterion which determines whether the proposal should be referred to the Minister and should require the concurrence of the City Planning Commission before the Council approves the application. It is a means of ensuring that the relevant planning authorities can take appropriate steps, if any are required, to protect heritage items. 49. In this case, it appears that the Council has proceeded on the footing that a proposed development will directly affect an item of State heritage if the development is on a site adjoining the heritage item. On 4 January 1991 the Council referred ADC's development application to the Minister because it was to be erected on a site adjoining the site of the Queen Adelaide Club. The Council does not appear to have considered whether there is any other respect in which the proposal will directly affect the heritage item. 50. The mere fact that a proposed development adjoins a heritage item does not necessarily mean that the proposal directly affects a heritage item. The proposal could involve internal reconstruction of a building which would not affect an adjoining heritage item. There may, of course, be other cases where the proposal will directly affect an adjoining heritage item. That will be a consequence, not of the fact that the proposed development adjoins the heritage item, but of the nature of the development or the works involved in the development. The reference on 4 January was not made because the ADC proposal will directly affect the Queen Adelaide Club but because their respective buildings were on adjoining sites. 51. I find that, when on 3 June 1991 the Council resolved to refer the ADC proposal to the Minister pursuant to s.24(4) of the City Act, the Council acted on the advice of its solicitors to that effect. The Council had sought advice from its solicitors because of the fact of the entry of Gawler Chambers on the Interim List and the making of the conservation order. There was no other occasion which called for the matter to be referred again to the Minister other than the fact of the entry on the Interim List and the making of the conservation order. For the reasons already given, that was not a proper ground to refer the application yet again to the Minister. 52. Mr Hayes QC, who appeared for ADC, contended that the Council had, therefore, acted wrongly in referring the ADC proposal to the Minister on 4 January 1991 and on 17 June 1991. He contends that there is nothing in the agreed facts and documents which discloses whether the Council has considered whether there is any other reason why the ADC proposal will directly affect the Queen Adelaide Club. He submitted that the proposal should be referred back to the Council for it to determine whether the proposal will directly affect the Queen Adelaide Club. I am not prepared to find that the Council should not have referred the proposal to the Minister. It is clear from the plans submitted by ADC that the proposed hotel will overshadow the Club, which is the kind of direct effect contemplated by s.24(4) and (5). Thus, although the basis for referring the proposal to the Minister on 4 January and on 17 June was wrong, there were other grounds for doing so. The Council, therefore, has acted properly in referring the application to the Minister on both occasions. In her reply on 15 March 1991, the Minister expressed the view that the ADC proposal will not directly affect the Queen Adelaide Club and said that she did not wish to make any representations should the proposal be referred to her under the City Act. The proposal has now been referred to her under the City Act. Presumably, the Minister will express the same view as those contained in her letter of 15 March. There is an element of futility in the matter being twice referred to her. The Council should have framed its referral to the Minister under all relevant headings to avoid unnecessary delay. The Minister is required to deal with the matter expeditiously: see s.24a(2) of the City Act, and no great delay should be occasioned if the Minister acts in accordance with her statutory obligations. 53. It is scarcely necessary to add that, for the reasons already given, it will also be necessary for the Council pursuant to s.24(5) to seek the concurrence of the City Planning Commission. 54. So far as the Commission's obligations to comply with subsections (4) and (5) of s.24 of the City Act are concerned, the position might therefore be summarised as follows. The Council was required to refer the ADC proposal to the Minister pursuant to s.24(4). The Council must seek the concurrence of the City Planning Commission in accordance with s.24(5). In deciding whether to concur in the approval by the Council of the development pursuant to s.24a of the City Act, the City Planning Commission must have regard to the views expressed by the Minister on the question whether the ADC proposal will directly affect the Queen Adelaide Club. The Commission is not bound by s.24a to have regard to the Minister's views as to the desirability of preserving Gawler Chambers. Conclusion 55. ADC no longer seeks all the declarations and orders initially sought in this summons. Since these proceedings were commenced, events have occurred which have rendered unnecessary some of the relief then sought. In all the circumstances, the most appropriate course is to publish these reasons and hear the parties as to the terms of the orders which ought to be made.

ADELAIDE DEVELOPMENT CO PTY LTD v. THE CORPORATION OF THE CITY OF ADELAIDE and ANOR No. 1471 of 1991 Judgment No. 3057 Number of pages - 17 Town Planning (1991) 56 SASR 497 [1991] SASC 3057 (2 October 1991)

At a glance

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Before

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Judgment (16 paragraphs)

ADELAIDE DEVELOPMENT CO PTY LTD v. THE CORPORATION OF THE CITY OF ADELAIDE and ANOR No. 1471 of 1991 Judgment No. 3057 Number of pages - 17 Town Planning (1991) 56 SASR 497 [1991] SASC 3057 (2 October 1991)

Cases Cited (2)