Bailey v Ku-ring-gai Council [2019] NSWLEC 35 | Case summary

Land and Environment Court (NSW)|2019-03-19|Before: Preston CJ, Mr J

Nature of claim and outcome

Mr and Mrs Bailey have brought judicial review proceedings to challenge the decision of Ku-ring-gai Council ("the Council") to vary a planning proposal to amend Schedule 5 of Ku-ring-gai Local Environmental Plan 2015 ("KLEP") to remove certain properties as items of local heritage. The planning proposal sought to remove four properties from Sch 5, including Mr and Mrs Bailey's property at 7 Grosvenor Street, Wahroonga. The Council resolved to vary the planning proposal so as to proceed with the local heritage delisting of three properties but to retain the heritage listing of 7 Grosvenor Street, Wahroonga. The Council, under delegated authority, made a local environmental plan, Ku-ring-gai Local Environmental Plan 2015 (Amendment No 18), that amended Sch 5 of KLEP by omitting the three properties as local heritage items. The Bailey's property at 7 Grosvenor Street, Wahroonga was retained as a local heritage item on Sch 5 of KLEP.
Mr and Mrs Bailey challenged the Council's decision to vary the planning proposal so as not to proceed with the local heritage delisting of 7 Grosvenor Street, Wahroonga on three grounds of review: denial of procedural fairness, failure to consider relevant matters and manifest unreasonableness.

The decision to vary the planning proposal

Mr and Mrs Bailey live in a Georgian revival architecture style house at 7 Grosvenor Street, Wahroonga. They purchased the property in August 2014.
At the time Mr and Mrs Bailey purchased the property, a draft local environmental plan, Draft Ku-ring-gai Local Environmental Plan 2013, listed 7 Grosvenor Street, Wahroonga as a local heritage item in Sch 5. On 2 April 2015, the Draft Local Environmental Plan was gazetted as KLEP 2015. Mr and Mrs Bailey's property thereupon became a listed local heritage item.
Mr and Mrs Bailey wish to have the heritage listing of their property removed. Around August 2015, Mrs Bailey undertook research to understand why the property had been listed as a local heritage item. She had discussions with a heritage consultant with the Council, Ms Leona Goldstein. Ms Goldstein suggested that Mrs Bailey write a letter to the Council setting out her research and explaining that she would like to query the heritage listing of 7 Grosvenor Street, Wahroonga. In the second half of 2015, Mrs Bailey undertook further research and continued to correspond with another heritage planner with the Council, Ms Liliana Duran.
On 1 January 2016, Mr and Mrs Bailey wrote a letter to the Council, as Ms Goldstein had suggested, setting out Mrs Bailey's investigations concerning the heritage significance of 7 Grosvenor Street, Wahroonga. Mr and Mrs Bailey stated that they had been unable to identify any compelling reason to explain the listing of their house as a heritage item and wondered whether the listing had been inadvertent. They suggested that no heritage inventory sheet had been prepared setting out reasons why their house had been listed as a heritage item. They requested the Council arrange for the delisting of their house as a heritage item.
In response, Ms Andreana Kennedy, a heritage specialist planner with the Council, spoke with Mrs Bailey, on a number of occasions between January to July 2016, and advised that the Council was considering having the heritage listing removed for three other properties in the local government area and that the Bailey's property at 7 Grosvenor Street, Wahroonga could be included with the three other properties in a planning proposal to amend Sch 5 of KLEP to remove these properties as local heritage items.
On 26 October 2016, Council officers prepared a report for the Council meeting on 22 November 2016 to consider amendments to Sch 5 of KLEP "to correct erroneous heritage listings". Four Council officers were recorded as authors of the report, two of whom were Ms Kennedy and Mr Antony Fabbro, Manager Urban and Heritage Planning. The report stated: "Four local heritage items have been identified as demonstrating insufficient heritage significance to merit their presence on the local heritage schedule of the KLEP 2015."
One of the four heritage items was 7 Grosvenor Street, Wahroonga. The report stated that the reason for its removal as a heritage item was that: "No data sheet can be located for this property in Council's records. This is considered an erroneous listing potentially being confused with the listed 7 Grosvenor Road, Lindfield."
The report recommended that the Council prepare a planning proposal to amend Sch 5 of KLEP to remove the four identified properties.
The Council considered the recommendation to prepare a planning proposal at its meeting on 22 November 2016 and resolved: "A. That a Planning Proposal be prepared, in accordance with section 55 of the Environmental Planning and Assessment Act 1979, to amend the Ku-ring-gai Local Environment Plan 2015 to remove the following properties from Schedule 5: - 36A and 36B Carlotta Avenue, Gordon (Lot B, DP366349); - 'Edelstein', 7 Grosvenor St, Wahroonga (Lot D, DP330058); - 17 Bangalla Street, Warrawee (Lot 14, DP14753); - 14 Warrangi Street, Turramurra (Lot 2, DP542710). B. That the Planning Proposal be submitted to the Department of Planning and Infrastructure for a Gateway Determination in accordance with section 56 of the Environmental Planning and Assessment Act 1979, C. That Council request the plan-making delegation under section 23 of the EP&A Act for this planning proposal. D. That upon receipt of a Gateway Determination, the exhibition and consultation process is carried out in accordance with the requirements of the Environmental Planning and Assessment Act 1979 and with the Gateway Determination requirements. E. That a report be brought back to Council at the end of the exhibition processes."
In accordance with the resolution, the Council submitted the planning proposal to the Department of Planning and Environment for a Gateway Determination and requested plan-making delegation for the planning proposal. A departmental officer, Mr Oliver Holm, as delegate of the Greater Sydney Commission, by letter dated 9 January 2018, determined that "the planning proposal should proceed subject to the conditions in the attached Gateway Determination" and "to issue an authorisation for Council to exercise delegation to make this plan". One of the conditions of the Gateway Determination (condition 2) was that consultation was required with the Office of Environment and Heritage on the planning proposal.
In compliance with this condition, the Council had consulted with the Heritage Council of New South Wales (within the Office of Environment and Heritage) about the planning proposal to remove the four locally listed heritage items. The Heritage Council, by letter dated 16 June 2017, responded, saying in part: "It is noted that the sites are not listed on the State Heritage Register, therefore Ku-ring-gai Council is the consent authority for listing and delisting of local heritage items from the heritage schedule of KLEP 2015. You are advised that no objection is raised to the removal of the locally listed items provided a detailed assessment of the heritage significance of the building, and an assessment against the NSW Heritage Division assessment criteria has been undertaken by a suitably qualified heritage professional."
Although there had already been assessments of the heritage significance of the other three properties, there was not one for the Bailey's property of 7 Grosvenor Street, Wahroonga. Accordingly, in order to address the Heritage Council's requirement, the Council's heritage specialist planner, Ms Andreana Kennedy, prepared in 2017 a detailed assessment of the heritage significance of 7 Grosvenor Street, Wahroonga. This assessment was contained in a document entitled "Heritage Data Form".
The heritage assessment found that the house was called "Edelstein" and was designed by architect Mr Maurice Mandelson and built in 1938. In the statement of significance, the heritage assessment found: "The house has significance as the work and home of architect Maurice Mandelson. Mandelson worked for the Department of Public Works and the Chief Secretary's Department as an architect from the 1920s to the 1940s, and served in an advisory capacity on the City of Sydney's Building and Advisory Committee. Edelstein is a representative example of the Inter-war Georgian Revival architecture style."
Applying the NSW Heritage Division assessment criteria, as required by the Heritage Council, the heritage assessment found: 1. Historical significance: "Has minor historical significance for its contribution to understanding the pattern of subdivision and development in Ku-ring-gai." 2. Historical association significance: "The house was designed by architect Maurice Mandelson for himself and his family. The association of this house with the architect and the original design are well documented. Mandelson trained as an architect at the Sydney Technical College graduating in 1904. During his career Maurice worked as a registered architect for the Department of Public Works and the Chief Secretary's Department. His expertise in the field was recognised in his appointment as an advisor to the City of Sydney's Building Advisory Committee. Maurice retired from the Chief Secretary's Department in 1947 and died on the 22 January 1964." 3. Aesthetic significance: "Edelstein has aesthetic significance as an architecturally designed representative example of a single story Inter-war Georgian Revival Style bungalow." 4. Social significance: "May have some minor social significance to local historians and architects as an architecturally designed example of a type." 5. Technical/Research significance: "Does not apply." 6. Rarity: "Does not apply." 7. Representativeness: "Edelstein is a representative example of a single story Inter-war Georgian Revival Style bungalow."
The heritage assessment noted that "the overall integrity of the house is good" and that "the design integrity of building is good with only minor changes that are discernible as new." The heritage assessment contained a number of photographs of the exterior and interior of the house.
The heritage assessment noted that the property is "currently on Schedule 5 of the Ku-ring-gai LEP 2015". The heritage assessment's recommendation was to "remove No. 7 Grosvenor Street, Wahroonga from the Schedule of Items of Heritage significance, of the Ku-ring-gai LEP 2015".
The Council thereafter commenced the public exhibition of the planning proposal from 1 February to 16 February 2018. The Council notified by letter Mr and Mrs Bailey of the planning proposal and invited their comments by the closing date for submissions of 16 February 2018.
The exhibition material included the Council report of 26 October 2016 and adopted resolution of 22 November 2016, the Gateway Determination of 9 January 2018, the planning proposal, and the heritage assessment for the individual items, including the heritage assessment of 7 Grosvenor Street, Wahroonga prepared by Ms Kennedy.
Mr and Mrs Bailey made a submission, by letter dated 19 February 2018, supporting the removal of heritage listing for their property. They said: "This letter is in reference to the planning proposal to remove 7 Grosvenor Street, Wahroonga as a heritage item. We would like to thank council for their assistance in this matter and seek to highlight areas of consideration, many of which were raised in our letter to council dated 1 January 2016: - The name 'Edelstein' is not a name that we have been able to associate with the property other than that used in a 1997 real estate advertisement when purchased by Norm and Sandy Nolan. It was not used in our purchase of the property from them in 2014, nor in any subsequent discussions with the former owners. Further research suggests the house was known by other names in its earlier history, none of which carry through to today; - It's relevant that an inventory sheet was not prepared for the property and supports the conclusion noted by Council that this was an inadvertent listing potentially confused with 7 Grosvenor Road, Lindfield which is a heritage item; - The property has had significant renovations since its construction in 1937 including the addition of a double garage, inground pool, additional ensuite, extending the north side of the property, extension of the kitchen and relocation of the laundry and the construction of hard landscaping including an exterior wall of approximately 1.8m around the entire perimeter of the property, severely restricting the view of the property from the street. - The internal photographs of the house were obtained from the advertisement of the property in 2014 and display the furniture of the former owners, Norm and Sandy Nolan. Since we purchased the property in 2014, we have progressively repaired and improved the property in a manner sympathetic to the nature of the property in consultation with council. We look forward to having the property removed as a heritage item and the closure of this matter."
The reference to their letter of 1 January 2016 was to the letter Mr and Mrs Bailey had sent at the beginning of the process, when they were asking the Council to remove the heritage listing of their property.
On 6 April 2018, two Council officers, Ms Kennedy and Mr Antony Fabbro, prepared a report for the Council meeting on 22 May 2018 considering the submissions received during the public exhibition of the planning proposal. The report was required by Resolution E of the Council on 22 November 2016, that a report be brought back to Council at the end of the exhibition processes. The report recommended that the Council proceed, not with the planning proposal to remove four properties from Sch 5 of KLEP, but instead with an amended planning proposal to remove three properties from Sch 5 of KLEP and retain the local heritage listing for 7 Grosvenor Street, Wahroonga.
In the discussion on 7 Grosvenor Street, Wahroonga, the report stated: "In preparing the required heritage assessments for the Office of Environment and Heritage it was found that 7 Grosvenor Street, Wahroonga was designed by the architect/owner. Further investigation found the plans for the house were held at the NSW State Library. The house was purchased in August 2014 with a draft listing in place and this was evident on the Section 149 Planning Certificate for the purchase of the house and enquiries were made by the conveyancer asking for information on the draft heritage item. As such the new owners were aware of Council's planning proposal process to locally heritage list the property. In August 2015, 12 months after the purchase and four months after the heritage listing came into effect the owners made enquiries to Council as to why the property was considered to have heritage significance. Council officers could find no inventory sheet or other records on Council's electronic document management system pertaining to the heritage significance of the property. It was presumed the listing was erroneous, an error made during the translation of Schedule 7 of the Ku-ring-gai Planning Scheme Ordinance into Schedule 5 of the Ku-ring-gai Local Environmental Plan (2015). Council staff then made a commitment to include this property in a planning proposal to initiate the process for delisting. The requirements for agency consultation under the Environmental Planning and Assessment Act 1979 and the Gateway Determination meant that Council had to seek the opinion of the Office of Environment and Heritage (OEH) on the Planning Proposal. The response from OEH was that Council was required to have a heritage assessment for each of the properties recommended for delisting. In doing this assessment for 7 Grosvenor Street, Wahroonga the interesting history of the owner architect was revealed (see Attachment A4). The assessment found the property to be architecturally designed and the architect's own home. The changes to the house are known and considered to have little impact on the design integrity of the property. As such the house is considered to have heritage value and should retain its local heritage listing. As the house already had a draft listing when purchased the retention of the property as an item does not change the known and informed affectations on the property as of the time of purchase by the current owner. There were no objections to the delisting and the owners support the delisting."
The report attached, as Attachment A3, a submission summary table, summarising the submissions and the comments on the submissions. In relation to 7 Grosvenor Street, Wahroonga, the table stated: " Submission # Summary Comments Support the removal of 7 Grosvenor Street, Wahroonga from the heritage list. Edelstein is not a name we the current owners associate with the house or the immediate owners prior to us. Darren Bailey 1 An inventory sheet was not prepared for the property supporting that it was an inadvertent listing. 7 Grosvenor Street, Wahroonga The property had significant renovations since 1937. The photos in the inventory sheet show the furniture of the former owners. Edelstein is the historic name given to the property by the original owner and architect of 7 Grosvenor Street, Wahroonga. As the current owners if you do not want the original name, the inventory sheet can be changed to "Formerly known as Edelstein". It is agreed the listing was inadvertent however the property was purchased with a draft listing (149 certificate obtained prior to purchase confirms this status, as such the current owners were aware of the heritage status before purchasing). The NSW Heritage Division of OEH requires Council to undertake a heritage assessment when removing a listing. Our assessment found the property to be architecturally designed and the architect's own home. The changes to the house are known and considered to have little impact on the design integrity of the property. The furniture is not part of the listing. It is not recommended to remove the listing. We purchased the property in 2014 and have made repairs and improvements in sympathetic manner in consultation with Council. Look forward to the removal of the property as an item.

Attachment A4, referred to in the report of 6 April 2018, was the heritage assessment of 7 Grosvenor Street, Wahroonga prepared by Ms Kennedy in 2017.
Ms Ann Morris of the Council emailed Mr Bailey on 16 May 2018 attaching a notification letter in relation to the planning proposal to amend Sch 5 (heritage list) of KLEP. The email noted that a report on the submissions is being considered at the Council meeting on Tuesday 22 May 2018 commencing at 7pm. The attached notification letter dated 16 May 2018 from Mr Antony Fabbro stated: "Following exhibition, the report on the above Planning Proposal will be considered by Councillors at a Council meeting to be held on Tuesday 22 May 2018, commencing at 7pm. … The report is contained in a Business Paper and you are able to view this document at Council's Customer Services, on Level 4 and on Council's website from Thursday 17 May 2018 at 'Your Council/Meetings/Minutes and agendas (business papers) - 2011 to present': . If you wish to address Council on this issue you must register with Council's officer between 6:15pm and 6:55pm on the evening of the meeting. Speaking time is limited to three minutes. It should be noted that Council may limit the number of speakers on an item. If you have any questions regarding this matter please contact Urban Planning on 9424 0000."
The link given was to the Council Officers' report of 6 April 2018 recommending that the heritage listing of 7 Grosvenor Street, Wahroonga be retained.
On 18 May 2018, Mr Bailey replied to Ms Morris thanking her for the update.
On 21 May 2018, Mr Bailey sent an email to Ms Kennedy at the Council saying: "Thanks for having this sent through last week. I left you a voicemail. Just wanted to check on process from here. I'm assuming there are no concerns with the Council confirming that the heritage be removed and then it's a matter of waiting for the legislation to be passed? Almost there! Thanks for your help."
A little less than 2 hours later, Ms Kennedy replied to Mr Bailey saying: "I recommend you read the report in full being Item GB.6. Note that you have the opportunity to speak at the meeting to the Councillors at the meeting tomorrow night. Please see the meeting notification letter for details. I have included below extracts which particularly apply to your property."
The extracts that Ms Kennedy included contained the whole discussion of 7 Grosvenor Street, Wahroonga in the Council Officers' report of 6 April 2018, which recommended retaining the heritage listing of 7 Grosvenor Street, Wahroonga.
Mr Bailey promptly responded saying: "Thanks Andreana. I've [sic] very confused. I'll have a look through, but would appreciate a call to understand why the change."
Mr Bailey later spoke on the telephone with Ms Kennedy. Ms Kennedy said that Mr Bailey could come to the Council meeting on 22 May 2018 and speak for 3 minutes and that he could also speak to the Councillors.
Mr Bailey took up Ms Kennedy's suggestions. Mr Bailey emailed the Councillors on the morning of the meeting on 22 May 2018. His email to Councillor Greenfield (the emails to other Councillors were substantially the same) said: "My name is Darren Bailey and along with my wife Ailsa Bailey, we reside at 7 Grosvenor Street, Wahroonga. Our property forms part of item GB.6 in this evening's meeting and we would ask for your support in having the motion on our property postponed. The council has supported the delisting since early 2016 and it was only yesterday that we were advised that this had changed. We believe it is incorrect and inconsistent with Council's own submissions through 2017 and 2018. I appreciate you are very busy, but would be grateful if we could take up 15 minutes of your time today prior to the Council meeting. In the event this is not possible I am available on my mobile and thought it might be useful to outline a couple of the important facts which form the backdrop to item GB.6. We have been dealing with Council on the matter since 2015 as we were unable to find any substantiation for the Heritage listing of the property, nor were the council able to provide a data sheet or any substantiation. After many conversations and a detailed submission in January 2016, Council came to the conclusion that the listing was inadvertent. Our belief is that our property was confused with 7 Grosvenor Road Lindfield which is a heritage item. This process for de-listing was outlined to us and gathered momentum in 2017 with a formal submission being prepared to Council (to allow the process to be furthered mid 2017). Feedback from the State required the preparation of a data sheet which remained unchanged through the subsequent exhibition and is attached in the Council papers for today. All communications with Council since early 2016 confirm Council's stance that they believe the property should be de-listed and at no point did they discuss or otherwise document anything to the contrary. Last Thursday I was sent a scan of a letter advising that the de-listing would go before Council today. I opened this email on Friday and followed up with my contact Andreana yesterday (Monday morning). It was only then that I was advised that the Heritage team had changed their recommendation. We therefore seek time to further discuss this matter with Council as we believe it is incorrect. The Heritage team's decision that 7 Grosvenor Street retain its Heritage listing seems to largely turn on the architect being an owner builder and having worked in a number of roles within Council last century. It does not however list any notable contributions by the architect. It is worth noting that the property has had a number of amendments since its inception in 1938 and the photos provided in Council's submission do not fairly show how the property looks today in its entirety and its impact on the streetscape. The link to Google maps embedded in the Council papers provides a better view. It is also worth noting that the property is within a Heritage Conservation Zone. I appreciate your time and apologise for the lengthy email. I would very much welcome the opportunity to discuss this with you and answer any questions you may have."
Mr and Mrs Bailey also arranged for their solicitor, Mr N Guttentag, to address the Council meeting on 22 May 2018. Mr Guttentag said at the meeting: "Thank you Madam Mayor, members of the Council, I act on behalf of the owners of 7 Grosvenor Street, Wahroonga. The owners of the property ascertained almost three years ago that the property had been heritage listed in error. The Council had no inventory sheet or records setting out the heritage significance of the property. The Council officers admitted the listing was erroneous. The Council officers undertook to assist the owners in getting the property de-listed. The minutes of this Council's meeting on 22 November 2016 recorded the Council's resolve to delist the property in order to correct the erroneous heritage listing. The process required that a heritage assessment of the property be obtained. This was obtained. The conclusion was that the property should be removed from the listing that is set out in point 6 of the points I have circulated and is attached as attachment A4 to this agenda. There were no objections to the de-listing and the owners supported the de-listing. The Ku-ring-gai Council website advertised in February 2018 that it would seek to delist the property. However my clients ascertained yesterday morning that this agenda, currently before this Council, suddenly wishes to resolve NOT to delist their property. The schedule mysteriously and erroneously recorded as such as is considered to have heritage value and should retain its local heritage listing. Agenda item GB.6 in respect of the property at 7 Grosvenor Street contradicts the heritage assessment that it seeks to rely upon set up in point 6. It contradicts the previously advertised planning proposal and is unsupported by any opinion or assessment obtained to date by the process or by the Council. It was only communicated to the owners of the property yesterday morning and is in breach of the Council officers' undertaking to assist the owners to correct their error. The Council should adjourn its consideration of GB.6 as there has been a breach of natural justice and item GB.6 is unsupported by the heritage assessment, which it seeks to rely upon. Item GB.6 in this context is the product of error, irrationality, extraneous influence or corruption. The owners of the property should be afforded an opportunity of considering, investigating and opposing GB.6, failing which the actions of this Council and more particularly its officers would need to be reviewed by a Court of suitable jurisdiction and or the Local Government. I am informed that the owners would support a motion that in accordance with the previous position taken by the Council, that all of the properties placed on the register in error, be removed from the register. Thank you very much."
The Council thereupon discussed the planning proposal. Councillor Citer moved an alternative motion to that recommended in the officers' report, which would include four properties, including 7 Grosvenor Street, Wahroonga, in the planning proposal to amend Sch 5 of KLEP to remove those properties as local heritage items. Councillor Spencer seconded that motion. Councillor Citer expressed his concern about retaining heritage listing on a property that was erroneously heritage listed in the first place. Councillor Citer referred to Mr and Mrs Bailey's suggestion that the property had been heritage listed by accident instead of 7 Grosvenor Road Lindfield being heritage listed.
Mr Fabbro responded to Councillor Citer's question about whether the heritage listing was by accident, saying: "Yes, in relation to this, originally there was the suggestion that it could have been confused with 7 Grosvenor Street, Lindfield but in the officers' report as set out on page 137 the process that we went through, the reason for the listing, was that the Office of Environment and Heritage asked us to prepare a heritage inventory sheet which is attached to appendix 4 to the officers' report and that clearly articulates that the item is of local heritage significance."
Councillor Citer noted that the Council, in November 2016, had supported the officers' recommendation to delist that property and asked what was the rationale behind that recommendation to delist the property. Mr Fabbro responded that: "That would have been based on the submissions made by the owners in relation to its potential erroneous listing in relation to it being confused with 7 Grosvenor Street, Lindfield and back in 2016 that was the process to start the process, would have been an exhibition process. This inventory sheet was prepared."
Councillor Citer expressed his concerns about the procedures that had occurred. He said his biggest problem was that "we are being asked to retain a heritage listing on something that was erroneously listed in the first place and as I said before I did vote to delist this back in 2016." Councillor Citer said his other concern was that "this did go out to public exhibition in a lot of ways and it was put on the Ku-ring-gai Council website where they were sort of seeking to delist the property". Councillor Citer said that the public has not said that "we believe this should be a heritage item so there actually has been no objections by the public to the delisting".
Councillor Spencer expressed concern that properties are listed as heritage even though some of them are clearly erroneous, for instance 7 Grosvenor Street, Wahroonga.
The Mayor asked the Director of Strategy and Environment, Mr Andrew Watson, some questions about the process for notification of the planning proposal. First, the Mayor asked for clarification on the comments that "the public hasn't been informed about listings that have occurred in the past or informed about this current process". Mr Watson responded: "That would be incorrect Madam Mayor. In all cases this Council has always gone above and beyond its basic statutory notification processes and certainly the material on which the proposal to maintain a heritage listing of this property was in exhibition, when the planning proposal was exhibited and as for earlier process also exhibited and notified extremely widely."
The Mayor next asked "when it is said that the owners actually only found out about tonight, yesterday morning, could you explain that proposal/assertion?" Mr Watson responded: "It is certainly the case that the public isn't given advance notice of when matters are put on the Council's agenda. The formal notification of the agenda does not occur until the agenda is published but the material on which the officers are relying is certainly on public exhibition when this matter was exhibited earlier in the year."
The Mayor next asked for clarification about Councillor Citer's statement about what he voted on in 2016 and that there was an assumption that there has been no further information provided to Council. Mr Watson responded: "In 2016 Council resolved to start the planning process and through the consultation process with government agencies we were asked to prepare more information on all the properties and it was through that process that the heritage listing or the heritage worth of the property was identified. It also has to be pointed out that in good faith, the officers have commenced the delisting process. I don't know if there is any evidence one way or another that there was an erroneous listing but there was certainly no paperwork to support a listing and on that basis the staff at the time recommended effectively further investigations which have turned out to yield a different outcome than what might have been anticipated in 2016."
The Mayor asked Mr Watson to "specify those further investigations and what Council officers are relying upon to identify this as heritage?" Mr Watson replied: "The heritage office asked Council to prepare a detailed heritage inventory sheet and it was through that process that by analysis against the pre-requisite criteria, the property was found out to have heritage value."
The Mayor then asked Councillor Citer whether he had "evidence, contrary to the inventory sheets that had been prepared for this property, that state that the property does not have heritage significance?"
Councillor Citer answered by pointing to the heritage data form in Appendix 4 to the business papers for the meeting (this is the heritage assessment undertaken by Ms Kennedy in 2017). Councillor Citer said: "Obviously if we look down to the recommendations there, remove number 7 Grosvenor Street, Wahroonga from a schedule of items of heritage significance to the Ku-ring-gai LEP 2015, isn't that pretty black and white?"
The Mayor asked: "Are you saying that we shouldn't be paying any attention to subsequent information?"
Councillor Citer responded: "Well I have a problem with this because and I will tell you why I have a problem. Mr Fabbro made it clear tonight the council officers assumed it was 7 Grosvenor Street, Lindfield that was supposed to be heritage listed, they actually got the wrong property. I think that sets a very bad precedent as to heritage listing anyone's property. If someone came to you and said we are trying to heritage list your house, we think it should be heritage listed and we are going to heritage list it and then later on they say oh sorry we actually got the wrong suburb, it's not Wahroonga it's actually Lindfield. That would give me some scepticism."
The Mayor responded that she was not asking the Councillor to debate the whole matter but instead she was asking "do you suggest that Council should not take into consideration the further information that has been provided to them on the heritage listing?"
Councillor Citer responded that: "I am certainly happy for all Councillors to always read any information that is in the business papers."
The Mayor then moved the Council officers' recommendation as an amendment and sought a seconder for that. Councillor Szatow seconded the motion. The Mayor then spoke to the amendment. She said: "It's been quite apparent through reading of this report that several properties have been considered and assessed as not being worthy to be heritage items and that they therefore will not be proceeding to being listed and the recommendation is to delist those properties however 7 Grosvenor Street is a different matter. It's actually got a recommendation coming forward that it remains heritage listed based on the inventory sheets that have been undertaken specifically to consider this property. I think it's a very strange thing if Council only harps back to the decisions that were made in 2015 on limited information and when more information and recommendations come to light, in 2018 that we ignore it. Ku-ring-gai is made up of a great many beautiful homes, some are just beautiful homes and some are deemed to meet the heritage criteria for listing and we, as Councillors, have an obligation to preserve and protect those with the legislative framework that is available to us to do so. So I think it's quite clear under those circumstances that this property does meet that threshold."
Councillor Szatow then spoke in support of the amendment: "Yes. It's just that I think my reading is slightly different to Councillor Citer with due respect. When I am reading here on page 137, I am reading that in fact 7 Grosvenor Street, Wahroonga was designed by an architect owner but the plans to the house were not available in Council but they were available in the NSW State Library, which was why Council didn't get their hands on this originally on the plans. There is no mention here of Council staff thinking the listing was erroneous. They made a commitment to include the property in a planning proposal to initiate the proposal for delisting because they couldn't find the information but when they found this in the State Library, they were able to move on this. If you look at page 157, which is… when they found this, they did find that it was in fact quite an important property because the plans were with the State Library and there were some beautiful pictures here of the house and the name of the architect… and that's on pages 157 right through to … with the photographs if you would like to go through it Councillors, and it does have significance and so I have to support the Mayor on this. I think there was simply a lack of information in the beginning that meant that this was not going to be delisted having found the correct information then it is up for listing. Here we are, so the house was designed by architect Maurice Mandelson for himself and his family. The association of this house with the architect the original design are well documented. Mandelson trained as an architect in the Sydney Tech College, graduating in 1904. During his career, Maurice worked as a registered architect for the Department of Public Works, Chief Secretary's Department, his expertise in the field was recognised and his appointment as advisor to the City of Sydney Building Advisory Committee. Edelstein, which is the name of the house, has aesthetic significance as an architecturally designed representative example of single story Inter-war Georgian Revival Style bungalow. It has some minor social significance to local historians and architects, architecturally designed example of this type and the overall integrity is good. The design integrity of the building is good with minor changes that are discernible as new. Now I know everybody likes to think that they are a heritage expert, I'm certainly not a heritage expert although I am doing a current Masters Degree at Macquarie University and one of the things we are looking at is public history and it involves heritage houses. Certainly when an inventory is done like this, it gives weight to the importance of a particular house and so I definitely support this and I am sorry if the owners don't think it is worth of this listing. Frankly I wish I had a house that was as beautiful as this and going to be listed."
Councillor Citer asked a question of whether there was a current heritage listing on the property. Mr Watson replied that: "Yes it is currently a listed heritage item and the proposal that was originally exhibited was to delist it but it is, has been and currently remains a heritage listed property."
Councillor Citer then asked what the Council's resolution on 22 November 2016 to delist the property achieved. Mr Watson replied that: "It started a planning process", which "would conclude one way or the other tonight from Council's perspective."
Councillor Ngai spoke saying that just because a building meets the threshold to become heritage listed doesn't mean that Council must make it a heritage listed item and just because Council staff's recommendation is one way, the Councillors must absolutely vote in the direction that has been recommended to the Councillors. Councillor Ngai said: "Personally when I look through the material here I believe that there is the potential that this does meet the requirements of being you know at the threshold for heritage listing but just on the principle, for me as a Councillor,… that we completely screwed up, and we got completely the wrong suburb, I would personally push for it to be delisted and if there is a subsequent process where we get all the public involved, every member of the public is aware of what's going on and they all have the opportunity to put in their submissions once again now that it has come out into the light, for the second or third time and so be it, then that can happen. But personally I think, if we have screwed up then let's just get it delisted and then talk about heritage significance afterwards. That's my position."
Councillor Clarke spoke in favour of the amendment, saying: "I know there has been a lot of discussion about how this listing originally came to fruition and to be quite frank I actually don't think it particularly matters. The fact that we might have accidently had this on our register or not I cannot comment on what happened years before I was on Council. What I can comment on now though is what the recommendation of is this a heritage item or not? The fundamental fact is that the heritage experts are telling us that this is a heritage property. So no matter what this would have been on a heritage listing, the owners, when they bought this property knew that this property was going to be heritage listed and specifically the house was purchased in 2014 with a draft listing in place so they would have known when they purchased this property that there was a draft listing. So I don't think you can argue that the owners were unaware that this process was occurring even if it was arguably in the wrong suburb if that's the part that we are accepting was true, which I'm not convinced about. Either way it doesn't matter. If you find something good you should follow through with it and it doesn't matter how it got to that point. We followed the proper processes, there have been numerous public exhibitions on the listing, so I don't accept the argument that the owners were unaware of the processes occurring. So I think overall I am pretty happy with the officers' recommendation and to support the Mayor in this particular case unless someone can argue why this property is not heritage in its current state. The argument that because we stumbled upon it we should not accept it does not follow through. This still is a heritage property and unless you can make the argument that this is not a heritage property I don't think you can support its removal from heritage listing.
Councillor Szatow supported Councillor Clarke's comments that: "It's because you made a mistake initially and I don't think it was a mistake, I agree with Councillor Clarke, that because some documents weren't able to be found initially, then it looked as though it was going to be taken off the heritage listing, but then when the documents were found, it was found to have considerable importance."
Councillor Citer reiterated his concern about voting to retain the heritage listing considering that he voted in 2016 to delist it. He continued: "Obviously the wheels have been put in motion to delist this property. It has gone on to the Ku-ring-gai Council website and also we have noticed that there have been no objections to the delisting at all by the community or members of the public. I think as we talk about it, it did get off to a very bad start with the wrong suburb being mentioned as 7 Grosvenor Street, Lindfield instead of Wahroonga. Councillor Spencer didn't mention about stumbling onto this property. I've heard some arguments tonight that well there is some merit here to heritage list this property but I think as Councillors we do act as a board of management. We do have to look very carefully at procedure and how everything we do, as Council staff do and as a Council we do with any dealings with members of the public. I don't feel confident that this case is being handled well and I don't feel that it has been handled in the best manner possible. I think we should always be looking at the best model to practice whenever we're dealing with residents or members of the public and I'm not sure as a Councillor if I can actually say that with this particular example. I think from my point of view the listing was erroneous. I have voted to delist this property and tonight I cannot vote to retain it on those errors."
The Mayor then put the amendment to the planning proposal to the vote. The Council resolved (by 6 to 4) to amend the planning proposal as recommended by the Council officers to remove the local heritage listing on three properties but not on 7 Grosvenor Street, Wahroonga. The amendment then became the motion. The Council then resolved (by 6 to 4) to adopt this amended planning proposal and to proceed to make a Local Environmental Plan implementing the amended planning proposal, using its delegated authority.
In June 2018, the planning proposal was updated in accordance with the Council resolution of 22 May 2018. On 21 June 2018, the Council provided a first draft of the amendment of KLEP to Parliamentary Council. On 10 August 2018, Ku-ring-gai Local Environmental Plan 2015 (Amendment No 18) was made and published on the NSW Legislation website.

Alleged denial of procedural fairness

Mr and Mrs Bailey contended that they were denied procedural fairness by the Council resolving to approve the amendment to the planning proposal so as to proceed only with the heritage delisting of three properties and not also of their property of 7 Grosvenor Street, Wahroonga.
First, Mr and Mrs Bailey submitted that, although they were given notice of the change in recommendation from removal to retention of the heritage listing for 7 Grosvenor Street, Wahroonga, the notice was given too late. The Council meeting to consider the amendments to the planning proposal was on 22 May 2018. The Council sent notice of the meeting to Mr and Mrs Bailey on 16 May 2018. The email and notification letter did not expressly state that the recommendation had changed. True, if Mr and Mrs Bailey had opened the link to the Council officers' report to the meeting, they would have read that the officers now recommended retaining the heritage listing instead of removing the heritage listing as had originally been recommended. But there was nothing in the text of the email or notification letter that would have alerted them to this fact that the recommendation had changed.
Mr and Mrs Bailey submitted that they were not expressly warned that the recommendation had changed until 21 May 2018, when Ms Kennedy responded to Mr Bailey's enquiry and provided extracts of the Council officers' report discussing the heritage significance of 7 Grosvenor Street, Wahroonga and recommending that the heritage listing be retained. This left insufficient time for Mr and Mrs Bailey to obtain expert heritage advice to counter the Council officers' assessment and recommendation, as the meeting was scheduled for the next day. Alternatively, Mr and Mrs Bailey contended that even if the notification of 16 May 2018, by providing a link to the report, had been sufficient, that notice would still leave insufficient time to obtain expert heritage advice to respond to the change in recommendation.
Mr and Mrs Bailey submitted that they had no need to obtain expert heritage advice before this time, as they were justified in relying on the heritage assessment by Ms Kennedy in 2017 that had recommended removal of the heritage listing of 7 Grosvenor Street, Wahroonga.
Mr Bailey in his emails sent to Councillors before the meeting on 22 May 2018, and Mr and Mrs Bailey's solicitor in his address to the Council meeting, asked for item GB.6 recommending amendment of the planning proposal to be deferred in order to allow them the opportunity to respond to the Council officers' assessment and recommendation. The Council did not give them that opportunity.
Secondly, Mr and Mrs Bailey submitted that there was no explanation in the Council officers' report justifying the change in recommendation from removing to retaining the heritage listing of 7 Grosvenor Street, Wahroonga. The Council officers' report of 6 April 2018 was based on the heritage assessment of Ms Kennedy in 2017. But this heritage assessment had concluded with the recommendation for the revocation of the heritage listing of the property. The Council officers' report of 6 April 2018, however, based on the same heritage assessment, came to the opposite recommendation for removal of the heritage listing on the property. No explanation was given in the Council officers' report of 6 April 2018 for this change in recommendation. Without such explanation, Mr and Mrs Bailey were not in a position to make submissions to the Council in opposition of the Council officers' recommendations.
Thirdly, Mr and Mrs Bailey seized upon the statement of the Mayor that there was "subsequent information" or "further information" supporting retaining heritage listing of 7 Grosvenor Street, Wahroonga. Yet the Council failed to provide or give notice of the further information or indicate the significance of the further information to Mr and Mrs Bailey. As a consequence, Mr and Mrs were not able to answer or respond to this further information.
The Council disputed that Mr and Mrs Bailey were denied procedural fairness. First, the Council submitted that there was no common law duty to accord procedural fairness to Mr and Mrs Bailey. The obligation to notify and consult with Mr and Mrs Bailey, as persons affected by the planning proposal, is circumscribed by the statutory provisions for notification and consultation in Div 3.4 of Part 3 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). These statutory provisions indicate a legislative intention that, except to the extent of the requirements to notify and consult there provided for, a planning proposal authority is not subject to any duty to accord procedural fairness to any person who might be affected by the provisions of a planning proposal: Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at [182], [190] and De Angelis v Pepping (2014) 203 LGERA 61 at [121], [123], [125], which findings were not disturbed on appeal in De Angelis v Pepping [2015] NSWCA 236 at [114].
Secondly, the Council submitted that this conclusion can be more readily drawn in relation to the particular claim of Mr and Mrs Bailey that they should have been afforded a fuller and longer opportunity to make submissions responding to the change in the Council officers' recommendation from removal to retention of the heritage listing of 7 Grosvenor Street, Wahroonga. The Council noted that it, as the planning proposal authority, has power under s 3.35(1) of the EPA Act, at any time, to "vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason."
The recommendation of the Council officers to the meeting on 22 May 2018 was that the Council vary the planning proposal to remove three properties but not 7 Grosvenor Street, Wahroonga from Sch 5 of KLEP. The Council had power under s 3.35(1) of the EPA Act to do so. If the Council did so, the Council was required to forward the revised planning proposal to the Greater Sydney Commission, as the planning proposal relates to the Greater Sydney Region (s 3.35(2) of the EPA Act). Further community consultation under Sch 1 of the EPA Act on the revised planning proposal is not required unless the Greater Sydney Commission so directs in a revised determination under s 3.34 of the EPA Act (s 3.35(3)).
The Council noted that this statutory process only provides for consultation after, and not before, the planning proposal is varied. This evidences a legislative intention that the Council, seeking to vary the planning proposal, was not subject to any duty to accord procedural fairness to Mr and Mrs Bailey who might be affected by the revised planning proposal to make submissions before the Council resolved to vary the planning proposal.
Thirdly, even if there is some additional common law duty to accord procedural fairness beyond what the EPA Act provides, the Council submitted that Mr and Mrs Bailey were not denied procedural fairness. Mr and Mrs Bailey were kept informed at all times of the planning proposal process and were afforded opportunities to make their views known to the Council, which they took. The Council undertook the statutory process for preparing the planning proposal to amend Sch 5 of KLEP, the ultimate result of which would not be known at the outset. The Council did not, and legally could not, guarantee that it would adopt the planning proposal process. Mr and Mrs Bailey were aware at all times that the subject matter of the planning proposal was the removal of four properties, one of which was their property, from Sch 5 of KLEP. That subject matter did not change. Mr and Mrs Bailey were afforded every opportunity to make submissions about this proposal, which they did.
Fourthly, Mr and Mrs Bailey's decision not to obtain their own expert heritage advice, and provide that advice to the Council as part of their submissions on the planning proposal, was a matter for them. They made a tactical decision not to engage with the substance of the heritage assessment of Ms Kennedy in 2017, which provided an evidentiary basis for finding that 7 Grosvenor Street, Wahroonga has heritage significance and that its heritage listing should be retained, but simply to rely on the then recommendation to remove the heritage listing of the property. The change in the Council officers' recommendation from removal to retention of the heritage listing may have made that tactical decision unwise, but it did not trigger an obligation to afford procedural fairness to Mr and Mrs Bailey.
I find that Mr and Mrs Bailey have not established that they were denied procedural fairness.
First, there is force in the Council's contention that the Council's obligation to notify and consult with Mr and Mrs Bailey, as persons affected by the planning proposal, about the planning proposal is limited to the requirements to notify and consult provided for in Div 3.4 of Part 3 of the EPA Act. In particular, the obligation to notify and consult concerning a revised planning proposal is limited to what is required by s 3.35 of the EPA Act. The Council has not been shown to have not complied with these statutory requirements to notify and consult concerning the planning proposal and the revised planning proposal.
Secondly, even if the EPA Act does not exhaustively state the entitlement of affected persons to make submissions on planning proposals, Mr and Mrs Bailey were not denied procedural fairness.
Mr and Mrs Bailey were afforded the opportunity to make any submission that they wished on the planning proposal when it was publicly exhibited. The Council notified Mr and Mrs Bailey, by letter dated 29 January 2018, of the planning proposal and invited them to make a submission. They were provided with the heritage assessment of 7 Grosvenor Street, Wahroonga by Ms Kennedy. This assessment provided an evidentiary basis for the Council to find, as the Council subsequently did find, that Mr and Mrs Bailey's property of 7 Grosvenor Street, Wahroonga has heritage significance and that its heritage listing should be retained. The assessment did contain the recommendation for the removal of the heritage listing, but this did not change the fact that the assessment contained an evaluation of the heritage significance of the property. Mr and Mrs Bailey were therefore provided with the evidence on which the Council officers' later recommendation to retain the heritage listing of Mr and Mrs Bailey's property and the Council's decision to vary the planning proposal to no longer seek to remove the heritage listing on Mr and Mrs Bailey's property, were based.
Mr and Mrs Bailey made a submission on the planning proposal, by their letter on 19 February 2018, which referred to their earlier letter to the Council dated 1 January 2016. Mr and Mrs Bailey could have addressed, but chose not to address, the evaluation of heritage significance of the property contained in the heritage assessment. They made a tactical decision that it would be sufficient to rely on the then recommendation in that assessment to remove the heritage listing of the property, rather than establish, by expert heritage advice, that the property did not have sufficient heritage significance to warrant the heritage listing of the property being retained. That tactical decision proved to be unwise. Council officers' recommendation was changed from removal to retention of the heritage listing, but the basis of both recommendations was the same - the evaluation of the heritage significance of the property in the heritage assessment by Ms Kennedy.
Mr and Mrs Bailey were notified, by email and notification letter dated 16 May 2018, that the planning proposal, and the submissions received on the planning proposal, would be considered by the Council at its meeting on 22 May 2018. The notification letter advised that a report on the planning proposal had been prepared and Mr and Mrs Bailey were invited to review the report at the Council chambers or on the Council's website. A link to the report on the Council's website was provided. This report of 6 April 2018 expressly recommended amendment of the planning proposal so as to proceed with removal of the heritage listing on three properties but to retain the heritage listing on 7 Grosvenor Street, Wahroonga. The report explained why 7 Grosvenor Street, Wahroonga was of heritage significance and should retain its heritage listing. Mr and Mrs Bailey were invited to address the Council on the planning proposal at the meeting. If they did wish to address the Council, the notification letter explained the process for registering and addressing the Council.
Mr and Mrs Bailey did not take up the invitation to view the report of 6 April 2018, either at the Council chambers or on the website. They therefore remained unaware of the change in recommendation from removal to retention of the heritage listing for 7 Grosvenor Street, Wahroonga, until they were told on 21 May 2018.
In response to Mr Bailey's email enquiry of 21 May 2018, Ms Kennedy of the Council expressly notified Mr Bailey, by email on 21 May 2018, that the recommendation for 7 Grosvenor Street, Wahroonga had changed from removal to retention of the heritage listing for the property. The relevant parts of the discussion and the recommendation concerning 7 Grosvenor Street, Wahroonga in the report of 6 April 2018 were extracted in Ms Kennedy's email to Mr Bailey of 21 May 2018. Mr Bailey was again advised that he had the opportunity to speak at the meeting to the Councillors and was referred to the notification letter for details. Mr Bailey spoke on the telephone with Ms Kennedy on 21 May 2018. Ms Kennedy again advised Mr Bailey that he could speak at the Council meeting and he could also contact the Councillors before the meeting.
Mr Bailey availed himself of both opportunities. He emailed the Councillors on 22 May 2018 and made submissions concerning the change in recommendation from removal to retention of the heritage listing of 7 Grosvenor Street, Wahroonga. Mr Bailey made what submissions he considered relevant and persuasive. He requested the opportunity to chat or meet before the meeting, but "in the event this is not possible", he made submissions in his emails to the Councillors. Mr Bailey did "seek time to further discuss this matter with Council" as he believed the changed recommendation "is incorrect".
Mr and Mrs Bailey also arranged for their solicitor to address the Council meeting on 22 May 2018 and the solicitor did so. The solicitor addressed the change in recommendation from removal to retention of the heritage listing of 7 Grosvenor Street, Wahroonga. He sought for the Council to "adjourn its consideration of [item] GB.6 as there has been a breach of natural justice and item GB.6 is unsupported by the heritage assessment, which it seeks to rely upon". The solicitor said that "the owners of the property should be afforded an opportunity of considering, investigating and opposing GB.6."
In these circumstances, Mr and Mrs Bailey were given opportunities to make submissions on both the planning proposal and the recommended revised planning proposal before the Council decided to adopt the revised planning proposal and Mr and Mrs Bailey availed themselves of the opportunities to make submissions on both the planning proposal and the recommended revised planning proposal. The fact that they sought further opportunities to make submissions does not make the opportunities that they did have insufficient or inadequate. Mr and Mrs Bailey lost no opportunity to advance their case that the heritage listing of the property should be removed and to rebut the change in the recommendation in the report to the Council from removal to retention of the heritage listing of the property.
The time period for Mr and Mrs Bailey to make submissions on the planning proposal and the recommended revised planning proposal was adequate to enable them to make what submissions they wanted. Mr and Mrs Bailey had ample opportunity to make submissions on the planning proposal and they availed themselves of that opportunity. They make no complaint about this. They also had opportunity to make submissions on the recommended revised planning proposal. Mr and Mrs Bailey were notified on 16 May 2018 of the report for the meeting on 22 May 2018. The report included the changed recommendation from removal to retention of the heritage listing of 7 Grosvenor Street, Wahroonga and an explanation for the recommendation for retention of the heritage listing of the property. Mr and Mrs Bailey could have viewed the report on 16 May 2018. The fact that they chose not to do so, but waited until they were expressly told of the change in recommendation on 21 May 2018, is not material in evaluating whether there has been a denial of procedural fairness. In any event, Mr and Mrs Bailey were invited to make submissions to the Councillors individually and at the Council meeting on the recommended revised planning proposal. They did so. Although they asked for item GB.6 to be deferred to allow them "to further discuss the matter with Council" and to afford them the "opportunity of considering, investigating and opposing" the recommended revised planning proposal, the circumstance of the change in recommendation did not give rise to an obligation on the Council to afford them that opportunity.
The change in the Council officers' recommendation from removal to retention of the heritage listing of the property was based on a re-evaluation of the information and assessment of the heritage significance of the property in the heritage assessment by Ms Kennedy. The information and assessment did not change, only the recommendation based on that information and assessment. Hence, the opportunity that Mr and Mrs Bailey sought, to consider, investigate and oppose the information and assessment of the heritage significance of the property, had already been provided to them when the planning proposal was exhibited. The exhibition materials included the heritage assessment by Ms Kennedy. Mr and Mrs Bailey had the opportunity to consider, investigate and oppose the information and assessment of the heritage significance of the property in that heritage assessment by Ms Kennedy at that time. They chose not to do so, but instead to rely on the recommendation in that heritage assessment for the removal of the heritage listing of the property. Nevertheless, they had the opportunity to do so. They did not refrain from putting material before the Council because of any statement or conduct of the Council at the time.
At the core of Mr and Mrs Bailey's concern about procedural fairness seems to be their expectation that the Council officers would continue to recommend, and the Council would adopt the recommendation for, the removal of the heritage listing of the property. But this is an expectation of a substantive outcome, not of a process. In Australia, there can be no legitimate expectation that a decision maker will exercise a discretionary power in a particular way, that is to say that there will be a substantive outcome: see, for example, Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [67], [105], [148]. The Council commenced the process of preparing and exhibiting a planning proposal to amend Sch 5 of KLEP to remove certain properties as heritage items. But there could be no legitimate expectation that the Council would not vary that planning proposal (under s 3.35(1) of the EPA Act) or not proceed with the planning proposal (under s 3.35(4) of the EPA Act) or, if the Council in its discretion chose to do either, that the Council must afford the opportunity to persons affected to make submissions to the Council opposing such a change in course.
Thirdly, Mr and Mrs Bailey's argument that they were denied procedural fairness by not being provided with and given the opportunity to address "subsequent information" or "further information" considered by the Council is misplaced. The argument was based on the questions asked of Councillor Citer by the Mayor in the debate at the Council meeting on 22 May 2018. The Mayor asked whether the Councillor was saying that the Council should not take into consideration "subsequent information" or "further information" on the heritage listing of the property of 7 Grosvenor Street, Wahroonga. Councillor Citer had referred to the recommendation in the heritage assessment by Ms Kennedy in 2017 that the heritage listing should be removed. Subsequently, Ms Kennedy and Mr Fabbro in their report of 6 April 2018 to the Council meeting on 22 May 2018 changed the recommendation from removal to retention of the heritage listing on the property. The report of 6 April 2018 discussed why the property had heritage significance and why the heritage listing should be retained, drawing on and re-evaluating the information and assessment in the heritage assessment by Ms Kennedy in 2017 (which was attached to the report of 6 April 2018). This discussion in the report of 6 April 2018, drawing on and re-evaluating the information and assessment in the heritage assessment by Ms Kennedy in 2017, is the "subsequent information" and "further information" to which the Mayor was referring.
Accordingly, there was no other "subsequent information" or "further information" that could be provided to Mr and Mrs Bailey and in respect of which they could make further submissions. Mr and Mrs Bailey had already been provided with the report of 6 April 2018 and the heritage assessment by Ms Kennedy in 2017. They were denied no opportunity to make submissions on this information.
For these reasons, I reject the challenge on the ground of procedural fairness.

Alleged failure to consider relevant matters

Mr and Mrs Bailey contended that the Council's consideration of the heritage significance of their property of 7 Grosvenor Street, Wahroonga miscarried. Mr and Mrs Bailey submitted that, having regard to the recommendation in the heritage assessment by Ms Kennedy in 2017 that the heritage listing of the property be removed, the Council cannot have given proper, genuine and realistic consideration to that heritage assessment in making its decision to amend the planning proposal and not remove the heritage listing for the property.
Mr and Mrs Bailey submitted that the Councillors relied on inaccurate and misleading information contained in the Council officers' report of 6 April 2018, Mr Watson's email to the Mayor on 21 May 2018 and the information provided by Mr Watson at the meeting on 22 May 2018.
Mr and Mrs Bailey submitted that the report of 6 April 2018 to the Council meeting on 22 May 2018 was misleading because it did not disclose, in the text of the discussion of the heritage significance of 7 Grosvenor Street, Wahroonga, that the earlier heritage assessment had recommended that the heritage listing of the property be removed and did not explain the change in recommendation from removal to retention of the heritage listing of the property.
Mr and Mrs Bailey submitted that the email from the Council's Director of Strategy and Environment, Mr Andrew Watson, to the Mayor on 21 May 2018, in response to the Mayor's questions, was false and misleading in a number of respects.
First, Mr Watson had said that: "the owners requested the delisting as they believe it to be erroneous. It became a draft item in 2013 (before these owners purchased the property). An inventory sheet supporting the 2013 listing could not be found by current staff, this does not mean there was not an assessment but we erred on the side of caution and agreed to the planning proposal."
Mr and Mrs Bailey said that, in fact, the Council officers had represented to them that the property had been listed in KLEP in error and the Council officers represented that KLEP would be amended through a planning proposal to rectify the error.
Secondly, Mr Watson had said that: "The Office of Environment and Heritage advised during the consultation that Council is required to undertake a 'detailed assessment of the heritage significance' of the buildings being delisted. This was completed for 7 Grosvenor Street, Wahroonga before the exhibition of the planning proposal and it was this assessment that was exhibited. The assessment concluded the property at 7 Grosvenor Street, Wahroonga was considered to have local heritage significance."
Mr and Mrs Bailey submitted that this statement omitted to state that the Heritage Council "supported the removal of the property from the Heritage List subject to a detailed local heritage assessment". (In fact, the Heritage Council in its letter of 6 June 2017 had stated that "no objection is raised to the removal of the locally listed items provided a detailed assessment of the heritage significance of the building and an assessment against the NSW Heritage Division assessment criteria have been undertaken by a suitably qualified heritage professional".) Mr and Mrs Bailey submitted that the heritage assessment undertaken by the Council "did not conclude that the Property had heritage significance and recommended to 'remove 7 Grosvenor Street Wahroonga from the schedule of Items of Heritage significance of the Ku-ring-gai LEP 2015'".
Thirdly, Mr Watson said that: "The changed recommendation to list is based on the information discovered as a direct result of the agency consultation request." Mr and Mrs Bailey reiterated their claim that they were not advised of any "new information" that supported the retention of the heritage listing of the property or that would justify or support the Council's change of position.
Fourthly, Mr Watson said that "the owners were advised to make a submission based on the exhibited material, that being the heritage assessment which found the property to be of local heritage significance" and "due process has been followed and all the relevant material was available to the owners at the time of exhibition". Mr and Mrs Bailey reiterated their assertion that the heritage assessment had not found that the property was of local heritage significance. They also submitted that the Council officers' report of 6 April 2018, which recommended the retention of the heritage listing for the property, was not exhibited to the public as part of the consultation and exhibition process. Mr and Mrs Bailey were not given the opportunity to make submissions during the consultation and exhibition process on the report of 6 April 2018. They submitted that due process had not been followed because they were not informed until 21 May 2018 that the Council intended on removing the property on the planning proposal and retaining the property's heritage listing. Although they had an opportunity to speak to the Council meeting, this was for only three minutes.
Fifthly, Mr Watson said that Mr and Mrs Bailey "did not proffer an alternative assessment and no significant reasons for the delisting". Mr and Mrs Bailey submitted that their submission on 19 February 2018 on the exhibited planning proposal referred to their initial letter to the Council on 1 January 2016, which detailed research undertaken by Mr and Mrs Bailey against relevant criteria for assessing heritage significance. Mr and Mrs Bailey also submitted that they were not afforded an opportunity of providing a submission on the revised planning proposal that the heritage listing of the property be retained, "which is why no contrary assessment by an approved heritage expert was obtained by the owners."
Mr and Mrs Bailey submitted that the information provided by Mr Watson at the Council meeting at 22 May 2018, in response to questions from the Mayor and other Councillors, was false and misleading. Mr and Mrs Bailey submitted that Mr Watson represented that: "(1) The Property had heritage significance. (2) New evidence [had] been received establishing that the Property had heritage significance. (3) An amended Planning Proposal (or motion) had been prepared that did not include the Property in the proposed orders. (4) The public (including the Applicants), had been given notice of the amendment(s) to the Planning Proposal (or motion). (5) The public (including the Applicants), had been given an opportunity to respond to the amendment(s) to the Planning Proposal (or motion)."
Mr and Mrs Bailey submitted that those representations were false and misleading for the reasons that they gave in relation to Mr Watson's email of 21 May 2018.
Mr and Mrs Bailey submitted that, by reason of being provided with this false and misleading information, the Councillors at the meeting of 22 May 2018 proceeded on incorrect assumptions: "(1) that there was a recommendation in a heritage assessment that the Property be retained on the heritage listing; (2) that new information had come to light as a direct result of the agency consultation request; (3) that the owners (Applicants) had been afforded access to this recommendation and an opportunity of rebutting it; (4) that the owners (Applicants) had been informed of the new information; (5) that the owners (Applicants) had been informed of the amendment to the Planning Proposal and the Council's intention no longer to seek the removal of the Property from the heritage listing; (6) that the owners (Applicants) had been afforded an opportunity of making submissions and rebutting the "new information", an unfavourable heritage assessment and change in decision of the Council, but the owners (Applicants) had failed to do so."
Mr and Mrs Bailey submitted that the Council's consideration of the heritage significance of the property thereby miscarried.
The Council submitted that it clearly did consider the heritage significance of the property of 7 Grosvenor Street, Wahroonga. Mr and Mrs Bailey's assertion that the material before the Council at the 22 May 2018 meeting was inaccurate and misleading as to the heritage significance of the property amounts to seeking to have a merits review of the decision, but without even attempting to call a contravening expert or other evidence.
The Council submitted that Mr and Mrs Bailey's assertion that the email of 21 May 2018 from Mr Watson to the Mayor and the Council officers' report of 6 April 2018 misstated what the heritage assessment in 2017 had said failed to recognise that the heritage assessment was attached to the business papers for the meeting on 22 May 2018, was expressly referred to by Mr Bailey in his emails to Councillors on 22 May 2018 and by Mr and Mrs Bailey's solicitor in his address to the Council meeting on 22 May 2018, and was expressly referred to and quoted from by Councillors at the Council meeting.
The Council noted that there was no "new evidence" considered by the Council at its meeting on 22 May 2018. The Council submitted that Mr and Mrs Bailey seemed to have misunderstood what was required to be considered at the Council meeting on 22 May 2018. The purpose of the meeting was not to review the resolution passed at the Council meeting on 22 November 2016 and did not require "some new evidence" in order to come to a different conclusion. Rather, the 22 November 2016 resolution was the beginning of a statutory process to prepare a planning proposal and the 22 May 2018 meeting was at the end of the process to determine, on all the information then available, whether to proceed with the planning proposal, vary the planning proposal or not proceed with the planning proposal.
The Council submitted that the evidence establishes that the Councillors properly considered all of the available information, including the heritage assessment that had been undertaken with reference to the relevant assessment criteria, and resolved that the heritage listing for the property should not be removed.
The Council submitted that Mr and Mrs Bailey's assertion that due process was not observed, but the Councillors were told that it was, does not give rise to an additional argument of failure to consider a relevant matter, but merely reasserts the argument of denial of procedural fairness.
I find that Mr and Mrs Bailey have not established that the Council failed to consider any relevant matter. Mr and Mrs Bailey have cast their argument in terms that the Council was required to give "proper, genuine and realistic consideration" to the heritage significance of the property. But, as noted by the Court of Appeal on a number of occasions, that terminology should not be turned into an assessment of the adequacy of the consideration accorded in a particular case or expanded so as to permit a review of the merits of the decision: Bruce v Cole (1998) 45 NSWLR 163 at 186; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 at [74], [79] and Notaras v Waverley Council (2007) 161 LGERA 230; [2007] NSWCA 333 at [117].
Yet, Mr and Mrs Bailey's arguments as to why the Council's consideration of the heritage significance of the property miscarried does precisely this. The allegations of inaccuracies and misleading statements in the materials considered by the Council involve an assessment of the adequacy of the Council's consideration and disagreement with the merit determination of the Council to retain, rather than to remove, the heritage listing of the property. The ground of failure to consider relevant matters does not permit such challenges to the factual accuracy of the materials before the Council.
In any event, however, I do not find that the material is inaccurate or misleading in the various ways alleged by Mr and Mrs Bailey.
The Council officers' report of 6 April 2018 was not misleading. The discussion of the heritage significance drew on and re-evaluated the assessment of heritage significance in the heritage assessment by Ms Kennedy in 2017. The report of 6 April 2018 expressly referred to that earlier heritage assessment and attached it to the report. It is also relevant that Ms Kennedy, the author of the earlier heritage assessment in 2017, was the co-author of the report of 6 April 2018. She well knew what she had assessed and recommended in her earlier heritage assessment.
The change in recommendation, from removal to retention of heritage listing for the property, was evident on the face of the report. The report of 6 April 2018 referred to the Council resolution on 22 November 2016 that the heritage listing for four properties, including 7 Grosvenor Street, Wahroonga, be removed. The purpose of the report was stated to be for the Council to consider the submissions received during the public exhibition of the planning proposal to remove the heritage listing on four properties. The recommendation was that the Council not proceed with that planning proposal, to remove the heritage listing on four properties, but instead "that Council proceeds with an amended planning proposal to remove the local heritage listing on three properties and retain the listing on one property, and resolve to make the Plan under s 3.36(3) of the Environmental Planning and Assessment Act 1979". The one property, on which the heritage listing was to be retained, was 7 Grosvenor Street, Wahroonga. The discussion on 7 Grosvenor Street, Wahroonga in the report noted that Council staff had made a commitment to include the property in the planning proposal to initiate the process for delisting. The report stated that the property was now "considered to have heritage value and should retain its local heritage listing". This opinion was based on the information in the heritage assessment of Ms Kennedy in 2017, which was attached to the report. That attached heritage assessment, of course, contained the recommendation to remove the heritage listing.
The report of 6 April 2018 explained why the property was now considered to have significance, why its heritage listing should be retained, including "the interesting history of the owner architect", the property being architecturally designed and being the architect's own home. The changes to the house were known and considered to have little impact on the design integrity of the property.
I find the email from Mr Watson to the Mayor on 21 May 2018 was not false or misleading in the ways alleged by Mr and Mrs Bailey. It mattered not whether the property had been listed in error on Sch 5 of KLEP back in 2015 or not. What mattered for the decision that the Council was to make on 22 May 2018 was whether there was information available at that time to support finding that the property had heritage significance and that the heritage listing should be retained. There was such information, in the heritage assessment by Ms Kennedy in 2017 and in the report of 6 April 2018 to the Council meeting on 22 May 2018. Mr Watson's brief account of the history of consultation with the Heritage Council and the reason for preparing a detailed heritage assessment of the property were not inaccurate. Contrary to Mr and Mrs Bailey's assertion, the Heritage Council did not "support" the heritage delisting, but rather did not object to the Council preparing a planning proposal for the heritage delisting of four properties.
Mr Watson's omission to state expressly that the heritage assessment by Ms Kennedy in 2017 had recommended removal of the heritage listing was not material. This fact was evident from the history of the planning proposal and the business papers for the meeting on 22 May 2018. It was also the prompt for the Mayor's question to Mr Watson, which referred to the fact that the exhibited planning proposal and materials had recommended delisting but the report of 6 April 2018 now recommended retaining the heritage listing for the property.
Contrary to Mr and Mrs Bailey's assertion, there was no new information to be provided to them. The information on which the discussion and the recommendation in the report of 6 April 2018 were based was the information in the heritage assessment by Ms Kennedy in 2017. That heritage assessment was part of the materials publicly exhibited and on which Mr and Mrs Bailey based their submission. The report of 6 April 2018 evidently was not exhibited, as its purpose was to comment on the submissions that had been made during the public exhibition. Nevertheless, Mr and Mrs Bailey were given the opportunity to review and comment on the report of 6 April 2018. A link to the report was provided to them on 16 May 2018 and relevant extracts were provided to them on 21 May 2018. Mr and Mrs Bailey availed themselves of the opportunity to comment on the report in their emails on 22 May 2018 to Councillors and in their solicitor's address to the Council meeting on 22 May 2018.
Mr Watson's statement that Mr and Mrs Bailey did not proffer an alternative assessment of the heritage significance was correct. Mr and Mrs Bailey were not heritage experts. They made a submission on 19 February 2018 asserting their belief that heritage delisting was warranted and relied on the recommendation in the heritage assessment by Ms Kennedy in 2017 that the heritage listing of the property should be removed. But they did not engage a heritage expert to address the evaluation of heritage significance in that heritage assessment or separately to assess the heritage significance of the property. The reference in Mr and Mrs Bailey's submission to their initial letter to the Council of 1 January 2016 did not assist. True, Mr and Mrs Bailey proffered their own assessment concerning the heritage significance of the property using the assessment criteria, but they are not heritage experts and their non-expert opinions were not of assistance. It also pre-dated the later heritage assessment by Ms Kennedy in 2017 and report of 6 April 2018 and hence did not address the assessment of heritage significance in those documents.
In any event, however, there is a further answer to this argument that Mr Watson's email to the Mayor was false and misleading. There is no evidence that Mr Watson's email was put before the Councillors at the Council meeting on 22 May 2018. At best, it was sent only to the Mayor. Even if it could be seen to be false or misleading in some respect (which I find it is not), it cannot have influenced the consideration of the Councillors as a whole at the meeting on 22 May 2018.
I find that the answers given by Mr Watson to questions raised in the meeting on 22 May 2018 were not false or misleading, for the reasons I have given in response to Mr and Mrs Bailey's same assertions about Mr Watson's email to the Mayor. It is also of importance that Mr and Mrs Bailey, and their solicitor, expressly referred to the recommendation in the heritage assessment by Ms Kennedy in 2017 to remove the heritage listing of the property. The Councillors expressly referred to that heritage assessment in the debate in the meeting on 22 May 2018. Councillor Citer quoted the recommendation to remove the heritage listing. Councillor Szatow quoted the discussion in the heritage assessment evaluating the heritage significance of the property. A great part of the debate focused on the justification for changing the recommendation from removal to retention of the heritage listing of the property.
In these circumstances, I find that Mr and Mrs Bailey have not established that the Councillors proceeded on incorrect assumptions about the heritage significance of the property or whether the heritage listing had been recommended for removal or retention. Mr and Mrs Bailey have not established that the Council failed to consider any relevant matter.

Manifest unreasonableness

Mr and Mrs Bailey contended that there was no rational basis for the Council to decide to amend the planning proposal to remove the property of 7 Grosvenor Street, Wahroonga from Sch 5 of KLEP. They contended that the Council's decision was "illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds", citing Murrumbidgee Ground Water Preservation Association Inc. v Minister for Natural Resources (2005) 138 LGERA 11; [2005] NSWCA 10 at [129].
Mr and Mrs Bailey submitted that the decision to proceed with the motion to amend the planning proposal was not logical and relied on a misstatement as to the notice and opportunity provided to Mr and Mrs Bailey to consider the "new" evidence or information (which did not exist). The reason for the change in the Council's position in respect of the heritage listing of the property was not explained to them and they were not provided with the opportunity to consider the reasons for the change or make comments or submissions (as the reasons were not disclosed).
Mr and Mrs Bailey noted that the heritage assessment by Ms Kennedy in 2017 had recommended the removal of the heritage listing of the property. There was no material change in the information received or available from February 2018 when the exhibition of the planning proposal closed. The submissions received during the exhibition process (the only one was from Mr and Mrs Bailey) supported the delisting of the property. The heritage assessment did not change after February 2018. No new information was received and there was no material change that supported retaining, rather than removing, the heritage listing of the property. The Council, at its meeting on 22 May 2018, relied on a suggestion that "new information" or "evidence" had come to light, but no new information or evidence was identified or existed. Hence, there was no logical basis for the Council's decision, it was against the evidence, and was irrational.
The Council submitted that the assessment process that is evident on the face of the report of 6 April 2018 shows reasoning that is rational. It provided an evidentiary basis for the Council's decision. The Council submitted that the earlier steps in the process of preparing the planning proposal are not relevant. The decision to vary the planning proposal, so as to proceed with the proposal to remove the heritage listing for three properties but not for 7 Grosvenor Street, Wahroonga, was made at the Council meeting on 22 May 2018 and in making that decision the Council did not act unreasonably.
I find that Mr and Mrs Bailey have not established that the Council's decision was manifestly unreasonable in the ways claimed by them. Again, at the core of their claim is a dissatisfaction with the decision made by the Council to retain, rather than to remove, the heritage listing of the property.
There was an evidentiary basis for the Council's decision. The Council officers' report of 6 April 2018, drawing on and re-evaluating the information in the heritage assessment of 2017, found that the property was of heritage significance and that the retention of heritage listing of the property was justified. It matters not that one of the Council officers, Ms Kennedy, had made a different recommendation in her earlier heritage assessment in 2017. That recommendation might well have been available on the information in the heritage assessment. But equally the information in the heritage assessment supported drawing a different conclusion and recommendation. It was open to the Council officers to re-evaluate the information in the heritage assessment of 2017 and come to a different conclusion concerning the heritage significance of the property and make a different recommendation to retain, rather than to remove, the heritage listing for the property.
It is not to the point whether the conclusion and recommendation in the report of 6 April 2018 were sound or not. As Menzies J observed in Parramatta City Council v Pestell (1972) 128 CLR 305 at 323: "There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right. The validity of a local rule does not depend upon the soundness of a council's opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court."
In this case, the decision of the Council to not proceed with the heritage delisting of 7 Grosvenor Street, Wahroonga was reasonably open to the Council on the information available to it at its meeting on 22 May 2018. Whether the decision was sound or not is not a question for determination on judicial review by the Court of the Council's decision.
Mr and Mrs Bailey's argument based on "new evidence" is factually incorrect. For this ground of review, they did accept that there was no new evidence beyond the report of 6 April 2018 re-evaluating the information in the heritage assessment of 2017. But they asserted that the Council believed that there was new evidence and based its decision on that belief that there was new evidence. As I have found earlier, the Council had no such belief. The Mayor's reference to "subsequent information" and "further information" was to the report of 6 April 2018 re-evaluating the information in the heritage assessment of 2017. This information was "subsequent" or "further" to the information that had been available to the Council when it had resolved on 22 November 2016 to commence the planning process to remove the heritage listing of four properties, including 7 Grosvenor Street, Wahroonga. The Councillors did not believe that there was any information other than this information in the heritage assessment of 2017 and the report of 6 April 2018 and did not make the decision on 22 May 2018 in a belief that there was any other information.
I reject Mr and Mrs Bailey's argument that it was unreasonable for the Council to make their decision on the assumption that Mr and Mrs Bailey had been afforded procedural fairness by being given an opportunity to address the recommendation in the report of 6 April 2018 that the heritage listing of the report be retained, when there was no evidence to support that assumption. This argument does not establish a ground of manifest unreasonableness, but merely reasserts the argument of denial of procedural fairness. The argument should be rejected for the reasons I have given on the procedural fairness ground. Factually, the argument is incorrect in that Mr and Mrs Bailey did have an opportunity to address the recommendation in the report of 6 April 2018 that the heritage listing of the property be retained, and took advantage of that opportunity. There is also no evidence that the Councillors held the belief that Mr and Mrs Bailey had not been denied procedural fairness.
For these reasons, I reject Mr and Mrs Bailey's argument that the decision was manifestly unreasonable.

Conclusion

Mr and Mrs Bailey have failed to establish any ground of review of the Council's decision on 22 May 2018 to vary the planning proposal so as to proceed with the removal of three properties, but not 7 Grosvenor Street, Wahroonga, from Schedule 5 of KLEP and to make a local environmental plan in accordance with the revised planning proposal. The proceedings should be dismissed.
Costs in judicial review proceedings in Class 4 of the Court's jurisdiction usually follow the event. Mr and Mrs Bailey have not shown any reason why the usual order for costs should not be made.
The Court orders: 1. The proceedings are dismissed. 2. The applicants are to pay the respondent's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2019

(2006) 143 LGERA 277

(2007) 161 LGERA 230

Bailey v Ku-ring-gai Council

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