Chisholm v Pittwater Council & Anor

Chisholm v Pittwater Council & Anor - [2001] NSWCA 104 - NSWCA 2001 case summary — Zoe

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Willeroon and the Ocean Road Conservation Area 4 The appellant is the owner of No 36 Ocean Road, Palm Beach. The building on the property next door, at No 35 Ocean Road, is known as "Willeroon". The first respondent is the Pittwater Council ("the Council"), within whose jurisdiction these properties fall. The second respondent is the owner of Willeroon. 5 Willeroon was built in about 1923 as a "weekender". It is a two storey dwelling in the Californian bungalow style. It has a central living room, several bedrooms, a kitchen and a dining room. The house has broad verandahs with views of the ocean. The front of the property is grassed. The site has an area of 1312 square metres. The surrounding area is made up of public open space, private residences and various surf clubs. 6 The heritage significance and environmental value of Willeroon are matters of sharp controversy. 7 Willeroon is regarded by many as an important part of the Palm Beach precinct. During the first part of the last century, Palm Beach was regarded as the "epitome of the simple, unspoilt life". Later, Palm Beach acquired a reputation for "glamour", and was regarded as a "place for the [very] wealthy". The area was developed and expanded. Many of the old homes were modernised or replaced with new dwellings. The expansion of settlement brought about environmental changes. 8 In 1985 the Council recognised the need to review the planning controls applicable and to address community concerns about heritage issues, environmental matters and certain development applications. From time to time thereafter several studies were carried out by various consultants who submitted reports dealing with these topics. A heritage study of the area was completed. In 1993 the Pittwater Local Environmental Plan (the "LEP") was adopted. 9 In July 1997, Tanner and Associates, architects and planners, completed a report that had been commissioned by Council (the "Tanner Report"). Tanner's brief had been "to provide an independent heritage and strategic planning assessment of the properties fronting Ocean Road …" This was intended "to guide Council's future strategies, planning options, and management for the area". 10 The Tanner Report recommended that the Palm Beach precinct be defined as a conservation area and included in the LEP. It also recommended that a number of properties, including Willeroon, be listed, separately, as heritage items in the LEP. 11 Following a period of negotiation and public comment, the Council decided to list the Ocean Road conservation area and certain other public items in the LEP. It decided not to list Willeroon as a separate heritage item. In November 1997, the Palm Beach precinct was nominated for inclusion in the LEP as a conservation area. 12 On 4 June 1999 the LEP was amended and, by one of the amendments, the Palm Beach precinct was proclaimed as a heritage conservation area, to be known as the Ocean Road Conservation Area.

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(iv) the Council was manifestly unreasonable. 18 During the course of argument on appeal, Mr Hemmings QC, for the appellant, accepted that, in substance, the second and fourth grounds depended for their success on the first ground. He did not argue the third ground (save for a perfunctory mention of a short point that I deal with later) and that is understandable as it is entirely without merit. Accordingly, Mr Hemmings, in effect, argued only the first ground (save for perfunctory mentions of separate and minor points relating to the second and fourth grounds which I deal with later as well). 19 The appellant's arguments that the Council failed to comply with the LEP were based on cl 32 thereof. In appreciating the thrust of the arguments it is helpful to have regard to the unamended form of cl 32 and the amended version that was in force on 13 December 1999 when the Council granted the development application. 20 In its unamended form, cl 32(1) provided that a person shall not "in respect of a building … that is a heritage item" demolish the building or erect a building on land on which the building is situated, except with the consent of the Council. In their unamended form cl 32(2) and cl 32(3) provided: "32(2) "The council shall not grant consent to a development application required by subclause (1) unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item and any stylistic or horticultural features and its setting. (3) The council may decline to determine a development application required by subclause (1) until it has considered a conservation plan so as to enable the council to fully consider the heritage significance of the item and the impact of the proposed development on the significance of the item and its setting". 21 When the LEP was amended on 4 June 1999, a new cl 32 was substituted in the following terms: "32(1) The following development may be carried out only with development consent: (a) demolishing, defacing, damaging or moving a heritage item or a building, work, relic, tree or place within a heritage conservation area; or (b) …

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The "Heritage Conservation Area" to which reference was made was the Ocean Road Conservation Area. As mentioned, the Ocean Road Conservation Area had been made a conservation area by the June 1999 amendment. Accordingly, this resolution indicates that the Council was aware of the amendment prior to considering the development application. 30 On 13 December 1999, when considering the development application, the Council had before it a report from its development unit (the "Development Unit Report"). There were a number of attachments and appendices to the Development Unit Report. Attachment 1 was a report by the Council's development officer to a development unit meeting that took place on 2 December 1999. The subject of Attachment 1 was the development application. The first page of Attachment 1 contained an express reference to the amendment to cl 32. 31 Also, on the first page of of Attachment 1, under the heading "Issues", there were references to "Heritage Significance", "Impact on Ocean Road Conservation Area", and "Landscape Heritage". The matters discussed under these references were issues by reason of the amendment to cl 32. 32 Further, in Attachment 1, reference was made to the amendment of the LEP that was "finalised in 1999" and to the fact that, by the amendment to the LEP, the Council had listed the Palm Beach precinct as the Ocean Road Conservation Area. Under the heading "Discussion of Issues", reference was made to the fact that the relevant environmental planing instrument was the LEP and, as specific reference was made in this regard to the Ocean Road Conservation Area, it is implicit that the planning instrument applicable was the amended LEP. 33 Attachment 1 stated further that copies of the amendment to the LEP "have been made available to all councillors and will be available for further consideration at the meeting on 13 December 1999". This, alone, negates the submission advanced by the appellant. 34 The Development Unit Report recommended that the development application be refused and provided the Council with a draft notice of refusal. This was appended to Attachment 1. The draft notice was in the following terms: "The development application has been refused for the following reasons: 1. The proposed development is inconsistent with the objective of the Pittwater Local Environmental Plan 1993 (Amendment No 32) to protect the heritage significance of properties with frontage to Ocean Road . 2. The proposed development is inconsistent with the objective of the Pittwater Local Environmental Plan 1993 (Amendment No 32) to ensure that any development does not adversely affect the heritage significance of conservation areas and their settings . 3. The proposed development is inconsistent with the objective of the Pittwater Local Environmental Plan 1993 (Amendment No 32) to retain the character of the area ."

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(b) It identifies conservation policies and management mechanisms that are appropriate to enable that significance to be retained. 38 Mr Hemmings submitted that there was no document containing these elements before the Council when it refused the development application on 13 December 1999. 39 The Oxford English Dictionary defines a plan, relevantly, as "a formulated or organised method according to which something is to be done; a scheme of action, project, design; the way in which it is proposed to carry out some proceeding". 40 It was not seriously suggested by Mr Hemmings that cl 32(5) means, literally, that a conservation plan must consist of only one document. That could lead to absurd results. Properly construed, "document" in cl 32(5), includes the plural: see s 8 of the Interpretation Act 1987. 41 On the other hand, the intent underlying cl 32(5) is that the plan must be readily discernible as a single entity even though it may be made up of one or more documents or parts of documents. For example, a patchwork of paragraphs drawn from several documents created over a period of several years and not specifically identified would be neither a single entity, nor a plan. Such a hodgepodge could not constitute a conservation plan. 42 A conservation plan, however, could be made up of a document to which other documents are attached, or one document that refers specifically to particular paragraphs in other documents, or it could be constituted by part of a document that refers to and incorporates parts of other documents in such a way that all the parts are readily identifiable as making up a single entity. The permutations are not finite, and it is a matter of fact and degree whether a set of documents satisfy the description of a conservation plan under cl 32. 43 There are other aspects of a conservation plan within the meaning of cl 32 that must be noticed. 44 Clause 32 is silent as to the identity of the party that is required to prepare the conservation plan to be considered under cl 32(4). It follows that a relevant conservation plan may be prepared by the Council or by the applicant or, notionally, by any one else. 45 The word "establishing" in cl 32(5) (in the context of a conservation plan meaning a document establishing "the heritage significance …") does not mean determining by authoritative fiat or opinion or resolution. Clause 32 does not require the Council to approve or adopt a conservation plan. It is merely required to make its decision after considering a conservation plan. The Council is not even required to comply with a conservation plan. "Establishing" in this context means "identifying". 46 The scheme of the clause is that the Council must assess a development application by reference to a conservation plan that sets out the heritage significance of a heritage item or a heritage conservation area etc. Accordingly, the Council, having made an assessment as required, may disregard the recommendations in a conservation plan. 47 Clause 33 of the LEP provides that "the provisions of ss 84, 85, 86, 87(1) and 90 of the [Environmental Planning and Assessment Act 1979] as in force at 30 June 1998 (being sections that provided for the giving of notice, and for the making and consideration of submissions, about proposed development) apply to the demolishing … of a heritage item or a building … within a heritage conservation area … in the same way as those provisions applied to and in respect of designated development". 48 Mr Hemmings submitted that cl 34 obliged an applicant for development to advertise the development and give particulars of the conservation plan. This proposition was not advanced in support of a submission that there was anything defective in the way the second respondent had advertised its application for development. This was not an issue that was investigated at the trial and was not a point taken on appeal. Mr Hemmings advanced the proposition, rather, in submitting that a conservation plan should be in a form that would enable objectors to an application for development to inspect the conservation plan which the Council intends to consider under cl 32(4). It is not necessary to express a firm opinion as to whether advertisements made under cl 34 need refer to a conservation plan, but it does seem to me that the argument advanced by Mr Hemmings in this respect is open to serious doubt. I have however expressed my views as to how a valid conservation plan is to be constituted and it is not necessary for me to say any more on this topic.

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49 The second respondent's development application involved the Ocean Road Conservation Area (as a "heritage conservation area"). Willeroon was neither a heritage item nor a heritage conservation area. Thus, a conservation plan for the purposes of the second respondent's development application needed to address the heritage significance of the Ocean Road Conservation Area and to identify conservation policies and management mechanisms that were appropriate to enable that significance to be retained. 50 Mr Jackson's primary submission was that the Development Unit Report (together with the attachments and appendages thereto) constituted the requisite conservation plan, and this report was properly considered by the Council prior to consenting to the second respondent's development application. Mr Jackson relied, in particular, on Attachment 1 to the Development Unit Report and an appendage thereto, being extracts from the Tanner Report (the "Tanner extracts"). 51 The Development Unit Report with its attachments and appendages constituted an identifiable single entity and was put before the Council for consideration as such. In the circumstances, it was capable of being a conservation plan as defined by cl 32(5). Whether the Development Unit Report was a conservation plan depends upon whether, in terms of cl 32(5), it established the heritage significance of the Ocean Road conservation area and identified conservation policies and management mechanisms that were appropriate to enable that significance to be retained. 52 I shall deal firstly with whether the Development Unit Report established the heritage significance of the Ocean Road conservation area 53 Attachment 1 recorded that the Ocean Road Conservation Area was recognised by the Council "as an area of local heritage significance", that is, rather than State significance. Attachment 1 noted that the Ocean Road Conservation Area was unique due to the contributions of a number of factors which were identified and discussed in detail. They included the topography, the architecture scale, the rolling front lawns with dwellings set back, and the landscape form and vegetation. 54 The Tanner extracts identified several other significant heritage aspects of the Palm Beach precinct. These include the distinctive natural landscape caused by the protected, relatively sub-tropical micro climate, the spotted gum open forest and the cabbage tree palm stands, the original bungalows with their characteristic elevated deep verandahs and terraces overlooking the beach, the distinctive gardens and the public parks. The parks were said to be significant because they provided habitat for a wide diversity of fauna species and were an example of urban bushland and record of the pre-European landscape in the Palm Beach area. 55 According to the Tanner extracts, contributions were also made to the heritage character of the Palm Beach precinct by the large parcels of land, native vegetation, bungalow style houses with verandahs and terraces facing the beach, low horizontal lines and houses set back behind large gardens so that that buildings remain secondary to the landscape. 56 Mr Hemmings submitted that the Tanner extracts could not be regarded as part of a conservation plan for the Ocean Road Conservation Area as the Tanner Report was completed before the Ocean Road Conservation Area was proclaimed as a conservation area. This submission cannot be accepted, however, as the geographic area considered in the Tanner Report is substantially the same as the proclaimed Ocean Road Conservation Area. The Tanner report dealt with the heritage significance of the area that, to all intents and purposes, became the Ocean Road Conservation Area. 57 Mr Hemmings also submitted that the Tanner Report was never intended to be a conservation plan. Intention, however, is not relevant to the question being considered, namely, did the Unit Development Report constitute a conservation plan as defined? Whether a document is such a conservation plan depends on its content, not on the intention with which it was drawn up. 58 In my opinion, the observations (to which I have referred) in Attachment 1 and the Tanner extracts are sufficient to establish the heritage significance of the area. 59 I now turn to the question whether the Development Unit Report identified conservation policies and management mechanisms of the kind contemplated by cl 32(5) (that is, policies and mechanisms appropriate to enable the heritage significance of the Ocean Road Conservation Area to be retained). 60 The Tanner extracts set out several such policies and mechanisms. It is not necessary to mention them all. I shall mention some. 61 Some of the policies were: (a) New developments could be permitted, provided that they were in keeping with the defined character.

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Other matters 69 Mr Hemmings submitted that the meaning of conservation plan should be considered by reference "to the accepted meaning of a conservation plan by the profession" and also by reference to the National Trust guidelines in relation to assessing development applications. These submissions are without any foundation in law. The meaning of "conservation plan" as this term is used in cl 32 must be determined by reference to the ordinary meaning of the words used and the definition contained in cl 32(5). 70 Mr Hemmings also sought to rely on the remarks by an individual councillor in the course of debate prior to the resolution approving the second respondent's development application. He submitted that these remarks indicated that the councillor did not properly understand cl 32. Mr Hemmings properly conceded that the state of mind of one councillor as evinced by something said in the course of debate says nothing about the collegiate mind of the Council when the resolution is in fact taken. In the circumstances, this argument falls away. 71 At one point in his argument, Mr Hemmings submitted that the Council's decision to approve the development application was manifestly unreasonable. He put this submission on the basis that the Council had received representations from the National Trust and the Heritage Council recommending rejection of the development application and the Council also had a report from its own officers recommending rejection. In his written submissions Mr Hemmings referred to the remarks of Street CJ in Parramatta City Council v Hale (1982) 47 LGRA 319 at 336 where the learned Chief Justice said: "Both the fact and the result of the departure by the council from the carefully formulated recommendations of its own officers, and both the fact and result of its repudiation of the important explicit requirement of the traffic authority and the Department of Main Roads, must necessarily attract concern regarding the regularity and validity of the Council deliberations and decisions. It is difficult to see how a responsible body, properly discharging its duty to the public, could ever arrive to the conclusion did". 72 As I understood Mr Hemmings' subsequent submissions, he did not persist with this point. In case I have misunderstood him in this respect, I shall briefly deal with the argument initially made. 73 Talbot J pointed out that there was a significant divergence of views held by experts concerning the issues that arose and there was ample evidence on which the Council was entitled to rely for the decision to which it came. Talbot said in this regard: "This is not a case where the evidence is all one way. The Council was required to weigh the submissions, advice, opinions and reports available to it and then to make its own decision. It was not bound to give any greater credence to the views expressed on behalf of the applicant in these proceedings over and above those submitted on behalf of the owner of Willeroon or its own officers".

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Court

Decision date

Before

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Judgment (51 paragraphs)

Parties

Cited By (4)