City of Darwin v The Heritage Council & Anor [2024] NTSC 95

Land Title Act 2000 (NT) s 38

Heritage Regulations 2012 (NT)

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 9 and 10

John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63, Aurizon Network Pty Ltd v Queensland Competition Authority [2018] QSC 246, Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337, Project Blue Sky v Australian Broadcasting Commission [1998] HCA 35; (1998) 194 CLR 355, Concrete Constructions v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, CYN17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140, LPDT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, Disorganised Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 97 ALJR 575, Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, Rucker v Stewart [2013] QSC 182, Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, South Australia v O'Shea (1987) 163 CLR 378, Re Minister for Immigration and Multicultural Affairs ex parte Miah (2001) 206 CLR 57, Aboriginal & Torres Strait Islander Affairs, Minister for v Western Australia [1996] FCA 1509; (1996) 149 ALR 78 - FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, Nathanson v Minister for Home Affairs [2022] HCA 26, referred to

Darwin City Council v The Heritage Council & Anor [2023] NTSC 95

• [1] On 3 December 2021 the Heritage Council accepted a nomination under the Heritage Act 2011 (NT) (the Act) which required to make an assessment of the heritage significance of an area of land in Darwin known as "the Esplanade". The nominated area was described as from "Doctor's Gully in the Northwest to Government House in the south-east".[1]
• [2] The majority of the nominated area is covered by parkland, known as Bicentennial Park, which is owned and managed by the City of Darwin (the City). The City also owns some other portions including Peel's Well, some remnant oil tanks and a car park. Lameroo Beach is Crown Land. Other parts of the area are owned by entities such as the Power and Water Corporation, Darwin Waterfront Corporation and private owners.
• [3] On 30 September 2022 the Heritage Council decided that the Esplanade was a place of heritage significance. Notice of the Heritage Council's decision and a copy of the statement of heritage value it prepared were given to the Minister for Arts, Culture and Heritage (the Minister) on 16 March 2023. On 11 April 2023 the Minister made a provisional declaration that the Esplanade was a heritage place.[2]
• [4] On 14 April 2023 the Heritage Council notified the City that the provisional declaration had been made and that it had resolved to invite submissions as to whether the Esplanade should be permanently declared as a heritage place under the Act. Until receipt of the letter of 14 April 2023 the City had no knowledge of the nomination, assessment or provisional declaration.
• [5] On 15 April 2023 the Heritage Council published a notice in a newspaper calling for submissions as to the heritage significance of the Esplanade. The period for making submissions (the public consultation period) was 28 days from the date of that notice, in accordance with the Act.
• [6] The City brings this application against the Heritage Council and the Minister. It seeks an order setting aside both the Heritage Council's decision that the Esplanade is of heritage significance, and the provisional declaration of the Minister which followed.
• [7] The City says that the decisions should be set aside on any or all of the follow grounds:
  1. The City was denied procedural fairness prior to the Heritage Council deciding that the Esplanade is a place of heritage significance (ground 1);
  2. The Heritage Council's decision that the Esplanade is a place of heritage significance was made after the expiry of the assessment period in s 23(1)(a) of the Act and is therefore invalid (ground 2);
  3. In deciding that the Esplanade was a place of heritage significance, the Heritage Council failed to carry out its statutory functions as required by ss 24 and 25 of the Act (ground 3);
  4. In deciding that the Esplanade was a place of heritage significance the Heritage Council misconstrued or misapplied the meaning of the word "place" in the Act (ground 4);
  5. The Heritage Council's decision that the Esplanade is a place of heritage significance was not properly made because at the time the decision was made the Heritage Council did not have a quorum at its meeting as required by the Act (ground 7).
  6. Because of the errors made by the Heritage Council, the Minister's provisional declaration was a nullity (ground 5); and
  7. The area set out in the provisional declaration is not the same as the area in relation to which the Heritage Council's decision was made and therefore the provisional declaration is invalid (ground 6).

What is the nomination and assessment process in the Act?

• [8] The object of the Act is the conservation of the Territory's cultural and natural heritage.[3] One of the ways in which the Act seeks to achieve its purpose is by establishing a process for declaring a particular place or object to be a heritage place or object.[4]
• [9] The Heritage Council is a body established under the Act.[5] Its functions include assessing the heritage significance of places and objects and making recommendations to the Minister as to the declaration of places and objects as heritage places or objects.[6]
• [10] The Act protects heritage places by restricting activities which may be undertaken on land in relation to which a declaration is in force. Enforcement provisions include criminal offences for non-compliance.[7] There are significant limitations upon the ability of an owner of land to deal with their property while a heritage declaration is in force.
• [11] Any person may nominate a place[8] for assessment of its heritage significance for declaration as a heritage place.[9] The nomination must be in the approved form, given to the Heritage Council, and be accompanied by the information necessary to allow the assessment to be made.
• [12] A "place" is defined in the Act as an area of land. It includes a building, part of a building or an item historically or physically associated with the place, if the importance of the item derives from the association. It also includes equipment, furniture, fittings and articles on, or historically or physically associated with, the place.[10]
• [13] The Heritage Council can refuse to accept a nomination only if it is frivolous or vexatious, or where the Minister has, within the previous five years, refused to make a heritage declaration in relation to the place and the owner does not consent to the assessment.[11]
• [14] Once a nomination is accepted, the Heritage Council must make an assessment within the six month "assessment period" set out in the Act. The assessment period commences upon acceptance of the nomination,[12] and may be extended where either: (1) the owner and the Heritage Council agree to do so; or (2) the Heritage Council is satisfied that it is not possible to complete the assessment within six months because of the remoteness of the place or object, or for "other reasons it considers appropriate".[13]
• [15] Where the assessment period for a nomination is extended, the Heritage Council must give written notice of the extension and the reasons for the extension to the person who made the nomination.[14] In addition, where the assessment period is extended other than with the agreement of the owner of the place, the Heritage Council must: (1) give written notice of the extension and the reasons for the extension to the owner; and (2) complete the assessment as soon as practicable.[15]
• [16] Before the end of the assessment period, including any applicable extension, the Heritage Council must decide whether the place is of heritage significance by reference to the heritage assessment criteria set out at s 11 of the Act.[16] In making its assessment the Heritage Council may carry out research and make any inquiries it considers appropriate. Additional information from a nominator may also be requested.
• [17] If the Heritage Council decides that a place is of heritage significance, it must: (1) prepare a statement of heritage value for the place; and (2) give a copy of the statement to the Minister.[17] If the decision of the Heritage Council is that the place is not of heritage significance, and there was a nomination, the Heritage Council is required to give the nominator a review notice for the decision before the end of the assessment period.[18]
• [18] As soon as practicable after preparing a statement of heritage value for a place, the Heritage Council must invite submissions on the heritage significance of the place by: (1) giving written notice to each interested person for the place, and anyone else the Heritage Council considers likely to be affected if the place is declared to be a heritage place; and (2) publishing a notice in a newspaper circulating generally throughout the Territory.[19]
• [19] An "interested person" for a place means the owners and occupiers of a place.[20]
• [20] If the Minister is given notice that the Heritage Council has decided, after making an assessment, that a place is of heritage significance, the Minister must, within seven days after the Heritage Council invites submissions on the heritage significance of the place, provisionally declare the place to be a heritage place by publishing a notice in the Gazette.[21] The provisional declaration remains in force until a permanent declaration is made or until it is revoked.[22] A provisional declaration provides substantially the same protection, and is enforced in the same way, as a permanent declaration.
• [21] Within 60 days of the end of the public consultation period the Heritage Council is required to decide whether or not to recommend that the Minister declare the place a heritage place. In making that decision the Heritage Council: (1) must consider the submissions made during the public consultation period; and (2) may carry out research and make any enquires it considers appropriate.[23]
• [22] If the Heritage Council decides not to recommend that the Minister declare a place to be a heritage place it must, as soon as practicable, provide a review notice to each interested person, each person who made a submission and the person who made the nomination.[24]
• [23] Where the Heritage Council decides to recommend that the Minister declare a place to be a heritage place, it must provide the recommendation to the Minister as soon as practicable. At the same time the Heritage Council must provide the Minister with: (1) the statement of heritage value; (2) a copy of each submission; and (3) any other information the Heritage Council considers appropriate, such as suggestions about dealing with any objections to the declaration.[25]
• [24] It is then the role of the Minister to decide whether or not to permanently declare the place to be a heritage place. The Minister may, by written notice, ask for further information or that the recommendation be varied "in a stated way". If either of those steps are taken, the Minister must give reasons for the request for further information or variation, and must give a date for delivery of that information or varied recommendation which is no later than 30 days from the date of the notice.[26]
• [25] The Minister's decision whether or not to declare a place to be a heritage place must be made within 30 days after receipt of the Heritage Council's recommendation, or any further information or varied recommendation the Minister has requested, whichever occurs later.[27]
• [26] If the Minister is satisfied that the place is of heritage significance and should be conserved, the Minister must, by Gazette notice, permanently declare the place to be a heritage place.[28]

Ground 1 - Was the Heritage Council obliged to afford the City a right to be heard before making a decision as to the heritage significance of the nominated area?

• [27] There is no fixed list of factors by reference to which the requirements of fairness in the exercise of a power are determined. However, in the High Court of Re Minister for Immigration and Multicultural Affairs; ex parte Miah[29] McHugh J set out a number of factors which have been taken up in subsequent cases as features which can be relevant to the existence and content of the requirement to afford a hearing.[30]
• [28] There are eight features of the decision making process in this case which have led me to conclude that the Heritage Council was required to give the City a right to be heard before deciding whether the nominated area was of heritage significance.

1. There is no express exclusion of the right to be heard in the legislation.

• [29] Subject to modification or exclusion by the legislative scheme under consideration, the common law principles of procedural fairness apply generally to administrative decision making of the type under consideration in this case.
• [30] In Minister for Immigration and Border Protection v SZSSJ, the High Court said:

... it must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation. The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme.[31]

• [31] That is particularly the case in relation to decisions affecting the rights of those with interests which the law has long recognised, such as property owners.[32]
• [32] The City has a clear interest in the decision as to whether the nominated place is of heritage significance. A positive decision will affect the City's rights because it automatically triggers a provisional declaration of at least three months duration, significantly restricting the City's right to develop and improve land in its ownership or under its care, control and management.[33]
• [33] In addition, the City has an interest in the accuracy of assessment of the heritage significance of the area. An assessment which does not properly consider the s 11 criteria could adversely affect the future management of that land, irrespective of whether there is a declaration in place in future. This is because the nominated area is relatively large and diverse. It is possible that not every part of the area will have the same heritage significance. Some parts may be relatively unimportant, whereas others are of great significance when the s 11 criteria are applied. The City has an interest in having clarity about what improvements or developments it can undertake on what parts of the land, including to minimise future disputes.

1. The decision as to heritage significance was not a preliminary decision.

• [34] The defendants' position is that the scheme of the Act involves a multi-stage decision making process which, when considered as a whole, affords an owner the opportunity to be heard during the public consultation period. The defendants submit that the decision by the Heritage Council as to whether a place is of heritage significance is a "preliminary" decision in the scheme of the Act. They argue that, because there is a subsequent requirement in s 26 to give notice and to invite submissions which must be considered prior to the Heritage Council making a decision as to whether to recommend a permanent declaration, the right of an owner to be heard is properly addressed only at that second stage.
• [35] In Ainsworth v Criminal Justice Commission[34] the High Court said:

It is not in doubt that, where a decision making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if the "decision making process, viewed in its entirety, entails procedural fairness".[35]

• [36] The decision in Ainsworth arose out of a report prepared by the Criminal Justice Commission which was tabled in the Commonwealth Parliament as part of the proceedings of a parliamentary committee. The report contained adverse material concerning the appellant, who had not had an opportunity to comment on its contents. The relevant interest of the appellant was protection of his reputation. The High Court found that the Commission and the Parliamentary Committee were not engaged in the same decision making process. The preparation of the report was the final step in the discharge of the Commission's function, which was separate and distinct to the function of the Parliamentary Committee.
• [37] The function of the Committee was not to redress any unfairness in the process undertaken by the Commission, and even if it did so by giving the appellant the opportunity to answer the material in the report, it could not undo the damage to reputation caused by the tabling.[36] Therefore, the appellant had been denied procedural fairness in preparation of the Commission report, notwithstanding the opportunity to challenge the recommendations in the report before the Parliamentary Committee.
• [38] Rucker v Stewart[37] was a case involving disciplinary action against a police officer who was stood down from duty, on full pay, pending the resolution of disciplinary action. The officer argued that the decision to stand him down was invalid because he had not been afforded a right to be heard prior to it being made. In accordance with the relevant legislation, the power to stand down was an interim process designed to create a holding position during the period of resolution of the complaint.[38]
• [39] The Queensland Supreme Court found that there was no requirement to afford procedural fairness to the officer at the time that the decision to stand him down from duty was made. The Court gave four reasons for this decision: (1) the salary and allowances of the officer were not reduced; (2) the decision was subject to an independent review at which the officer had a right to be heard; (3) the review was on the merits so the officer could put material before the review officer which addressed the issues; and (4) following the review and recommendation it was the commissioner for police who was to make the final decision, not the review officer.[39]
• [40] In the present case, the Minister is the ultimate decision maker as to whether there should be a permanent declaration in relation to a nominated place. His or her decision is made upon receipt of a recommendation from the Heritage Council pursuant to s 27.[40] There are two matters as to which the Minister must be satisfied before making a permanent declaration. First, that the place is of heritage significance, and secondly that the place should be conserved by making of a declaration under the Act.[41] In making the decision the Minister must consider all relevant documents and information.[42]
• [41] The Heritage Council's decision whether or not to recommend to the Minister that a place be declared a heritage place involves taking into account not only heritage significance but wider considerations which go to whether the Minister should make a permanent declaration. Those matters might include, by way of example only, political, resourcing and community concerns relevant to whether the place should be conserved, and whether a declaration under the Act is the appropriate method to achieve that end.[43] There are two reasons for this:
  1. These are the same sorts of matters that the Minister must consider. The Act does not provide for any further public consultation, or submissions from interested persons, prior to the Minister making his or her decision as to a permanent declaration after receipt of the Heritage Council's recommendation. It seems therefore that the Act assumes that the Minister will have, subject to their power to request additional information or recommendation, everything required to make the decision based upon the recommendation from the Heritage Council. That can only be the case if the Heritage Council is also obliged to consider those matters; and
  2. The clear purpose of the Heritage Council inviting submissions pursuant to s 26(1) is to inform the decision it must make in s 27(1), not to revisit the decision in s 25(1). Although s 26(1) refers to the Heritage Council inviting submissions "upon the heritage significance of the place", when viewed in light of the decision to be made by the Heritage Council in s 27(1), s 26(1) submissions are not restricted only to the question of whether a place is of heritage significance by application of the heritage criteria in s 11, as is the case in the decision required by s 25(1).
• [42] There is no obligation upon the Heritage Council to recommend to the Minister that a place be permanently declared a heritage place because it was determined to be of heritage significance pursuant to s 25(1). The Heritage Council might decide, after receiving submissions and considering them, or, possibly, after conducting further research or enquiries that, notwithstanding the previous decision as to the heritage significance of a place, it should recommend to the Minister that no permanent declaration be made. The Heritage Council is not obliged to review its decision as to the heritage significance of a place in deciding what recommendation to make to the Minister in accordance with s 27(1) and the structure of the Act makes it unlikely that it would do so.
• [43] A decision as to the heritage significance of a place pursuant to s 25(1) is therefore not a "holding decision" to be reviewed at a later stage of the process, similar to the decision in Rucker v Stewart. It is the outcome of the assessment of heritage significance which the Heritage Council is required to undertake upon accepting a nomination. If the assessment is that the place is not of heritage significance then the process stops at that point, subject to the nominator exercising a right of review.[44] If, however, the decision is that a place is of heritage significance then the status quo immediately changes in that a provisional declaration must follow, restricting the owner's property rights.
• [44] The two decisions to be made by the Heritage Council pursuant to s 25(1) and s 27(1) of the Act, although closely related, are not the same. The decision to recommend to the Minister that a place be declared a heritage place does not involve a review or reconsideration of the decision pursuant to s 25(1), because there is no need to do so. The focus of the inquiry has moved. While heritage significance, assessed by reference to s 11 factors, clearly remains relevant, the question under consideration in s 27(1) is the much broader question as to whether the Heritage Council should recommend that the Minister should make a permanent declaration.

1. The owner does not have a right of review or appeal as to any decision of the Heritage Council.

• [45] There is no merits review available to a land owner in relation to a decision pursuant to s 25(1). Nor does an owner have a right to seek a merits review of a decision by the Heritage Council pursuant to s 27(1) to recommend to the Minister that a place be declared a heritage place. By way of contrast, a person making a nomination has a right of review if the Heritage Council decides that a nominated place is not of heritage significance.[45] There is a right to appeal to this Court as to the Minister's decision to permanently declare a place a heritage place. Appeals are limited to a question of law.[46]
• [46] The only provision giving an owner of a nominated place an express opportunity to be heard before a permanent heritage declaration is made is following the notification in s 26.
• [47] Although the existence of a full de novo appeal right does not necessarily exclude a requirement for natural justice,[47] the absence of such a right suggests that the right to natural justice is not excluded. For the reasons given above, I do not consider that the making of the s 27(1) decision by the Heritage Council is in any real sense a review or reconsideration of the s 25(1) decision.

1. The invitation to make a submission in the 28 day public consultation process is insufficient to afford natural justice in this case.

• [48] In Aboriginal & Torres Strait Islander Affairs, Minister for v Western Australia[48] the Full Court of the Federal Court considered a case involving a proposal by lessors of land at Broome to expand their crocodile farm. The State Minister had provided the necessary consent. Subsequently, the Aboriginal traditional owners of the land applied for a declaration that the land proposed for the expansion be protected under the relevant Commonwealth legislation.[49] As part of the statutory process, the Commonwealth Minister appointed a reporter to provide a report as to whether the importance of the land was such as to warrant protection. The legislation provided for a public notice period during which interested people, including the proponents of the crocodile farm expansion, could provide representations to the reporter, but no requirement to seek comment from those directly affected on the contents of the report.
• [49] After receiving the report, the Commonwealth Minister made a permanent protection declaration, with the result that the crocodile farm could not expand. The owners of the crocodile farm, and the State Minister, applied to the Federal Court to set aside the Commonwealth Minister's decision. The application was successful on the basis that there had been a denial of procedural fairness because the lessors and the State were not given a proper opportunity to consider and respond to material in the report. The Commonwealth appealed that decision.
• [50] The Full Federal Court said that the legislative requirement to call for submissions from members of the public was no substitute for what natural justice required in relation to those who were directly affected.[50] The court found that the purpose and nature of the call for public submissions was different to what was required to afford natural justice to the proponents. The purpose of public submissions was to ensure wide public participation and "garner all the knowledge of the community", whereas the focus of natural justice upon those whose particular interests were affected by the making of the declaration meant that they were "entitled to have a proper opportunity to advance all legitimate arguments to avert a decision that might profoundly affect their interests". That included proper notice of the case they were required to meet. [51]
• [51] Unlike the legislation under consideration in in Aboriginal & Torres Strait Islander Affairs, Minister for v Western Australia the Act requires that written notice be given to each person interested in relation to the place.[52] That is a more specific notice requirement than simply publishing a call for submissions in a newspaper or gazette. There is no requirement to include the statement of heritage value, although each notice (specific and public) must state where it can be obtained. In my view s 26 is directed to the dual purpose referred to by the Full Federal Court, that is to call for submissions from the community in order to ensure wide participation, consistent with the objects of the Act, and also to provide notice to those directly affected, such as the City.
• [52] There is no clear difference in timing between the sending of the written notice to each interested person and publication of the notice in a newspaper. Both must be done "as soon as practicable". The time for an interested person to make a submission is within 28 days after the public notice is given. A period which is entirely dependent upon when the newspaper notice is published. It is conceivable that a written notice to an interested person could pre-date the giving of the public notice, perhaps by a considerable period. However, that is not what happened here. In this case the evidence shows that the notice to the City was sent on 14 April 2023[53] and the notice commencing the public consultation period was published on 15 April 2023.
• [53] The requirement in s 26 is to provide to interested persons the same information which is provided to the general public, namely the statement of heritage significance. While that document can reasonably be interpreted as the Heritage Council's reasons for its decision pursuant to s 25(1), a comparison between the heritage assessment report prepared in this case, and the relatively brief statement of heritage value, leads to the conclusion that the latter document falls far short of providing an owner proper notice of the case they have to meet. The statement of heritage value generally summarised the conclusions in the detailed assessment report without relating the conclusions to the assessment criteria in the Act or providing any reasons. It did not in my view constitute proper notice to the owner of the reasons for the determination that the place was of heritage significance.
• [54] In addition, in this case a period of 28 days was insufficient time for the City to provide a proper submission in relation to the nomination. The failure to provide essential information such as the nomination and complete assessment report contributed to the resulting unfairness. As a matter of practicality, a response period which is not sufficient in the circumstances of a particular case will not satisfy the requirement to provide natural justice.
• [55] The failure to provide relevant information and sufficient time to respond is particularly important in this case. Even if I am wrong about the difference between the s 25(1) and s 27(1) decisions such that the latter is a review or reconsideration of the former, the failure to provide sufficient notice of the case the City was required to meet, and an appropriate time to respond, would lead me to find that natural justice was not provided in the circumstances of this case in any event.

1. There is no urgent or policy reason to proceed without providing the City a right to be heard.

• [56] It is clear that there is nothing urgent about the making of the decision as to heritage significance. The Heritage Council took nine months to make the decision as to heritage significance of the nominated place, and then did not notify the Minister or send the statement of heritage significance to him, triggering the making of the provisional declaration for, approximately, a further six months.
• [57] The defendants submitted that it is a feature of the statutory scheme that notice, and a right to be heard, is not provided before a decision as to the heritage significance of a place because it is necessary to proceed without notice to the owner in some cases in order to avoid potential damage to a heritage place pending an assessment. As an argument for the ouster of the requirement for natural justice that contention is very weak. First, there is no evidence, or suggestion, there was any reason to proceed in that manner in this case.
• [58] Secondly, should the Minister determine that there is a need to make an urgent provisional declaration, the Act has a separate procedure, in s 36, to cover that circumstance. A provisional declaration can be made at any time provided that the Minister is satisfied that a place is likely to be of heritage significance and that a provisional declaration is required to ensure its conservation. Where a provisional declaration is made by the Minister under s 36, the assessment of the heritage significance of the place is carried out after the provisional declaration is made and, after the owners and other interested persons have been given notice of the making of the provisional declaration as required by s 40.[54]
• [59] In a case where an urgent provisional declaration is made, it is difficult to see why a landowner who is notified should then be denied the right to make submissions as to the heritage significance of the place until the Heritage Council reaches the stage of calling for public submissions pursuant to s 26. There is nothing in the Act which would lead to that conclusion. If that is correct, it has the somewhat uncomfortable result that a landowner subject to a s 36 declaration is in an arguably better position at least in relation to timing, than a possibly more careful landowner in relation to whose land a s 20 nomination has been made but who has received no notice of it until the public consultation period commences.
• [60] It was also submitted by the defendants that, notwithstanding the procedure for urgent protection, the general subject matter of the Act supports the construction that notice is not required prior to the public consultation period because of the need to avoid damage to the potential heritage value of a place once a nomination is known. It is reasonable to suppose that such policy considerations might arise in heritage protection.[55]
• [61] The Heritage Council relied upon the Minister's second reading speech to support its interpretation. In response to concerns that an owner may not know about the assessment of their property until a provisional declaration is made the Minister said:

There may be concern about this aspect of the draft bill in respect of the rights of the owner, and I will address those concerns. I stress it is very rare for the heritage listing process to be instigated without the knowledge or support of the owner. However, it is true the situation may arise where an owner unexpectedly receives notification that his or her property is being considered for heritage listing and provisionally declared as a heritage listed place under the act, thus restricting their actions in relation to doing work on that property.

An owner may object to this situation; however, they are assured of a couple of things. First, their views about whether the place ought to be heritage listed are sure to be taken into account - the act requires this. Second, time lines or limits apply to this part of the process, so owners can be assured a decision about heritage listing, one way or the other, will be made in a reasonable time frame.[56]

• [62] The first and most obvious difficulty with the Minister's speech is that its terms are equivocal. The Minister did not say that it was the intention of the Act that the owner would not or should not be heard. He said that they might not know about a nomination, but usually they would. Which is very different. The Minister also said that the owners' views about whether the place ought to be listed are sure to be taken into account. But he did not spell out how this was achieved in the legislation. It may have been a reference to s 26, but it was not clear.
• [63] The existence of a general concern about protection of the subject matter in furtherance of the purpose of the Act, does not change the need for clear words or necessary implication to displace the requirement for natural justice. Had the legislature chosen, it could have inserted clear provisions to protect potential heritage places during the assessment process. It chose not do so. In my view the second reading speech does not support the argument that the legislative scheme intended to exclude natural justice in relation to a decision by the Heritage Council that a place is of heritage significance.

1. The requirement to notify the owner of an extension of the assessment period and to provide written reasons is consistent with a right to be heard.

• [64] The six month assessment period in s 23 of the Act can be extended by the Heritage Council. Having made the decision to extend, the Heritage Council must provide the owner[57] with written reasons for its decision, unless the owner has agreed to the extension. If the assessment period is extended, the Heritage Council must complete the assessment as soon as practicable. An owner who does not know about the proposal to extend time obviously cannot consent. There is no dispute that notice of the extension of the assessment period was not given to the City as required by s 23(4) of the Act. Clearly notice should have been given, along with a statement of reasons.
• [65] The defendants point out that there is no consequence in the Act for a failure to provide notification, or reasons. They argue that, as the notice required by s 23(4) is given after the Heritage Council has decided to extend the assessment period, the owner does not have a right to make submissions prior to that decision being made. The defendants further submit that the requirement that the Heritage Council complete the assessment as soon as possible after giving the notice also means that the consequence of an extension of time follows as a matter of course, therefore there is nothing for an owner to make a submission about.
• [66] There is no doubt that the Act allows the Heritage Council to extend the assessment period with or without the consent of the owner of the nominated place.[58] That does not mean, however, that the Heritage Council can ignore the statutory provisions. The Heritage Council is exercising powers and functions which affect the owner's property rights and must make the decision in accordance with the requirements of the Act.
• [67] There are four matters which are of particular relevance:
  1. The purpose of written reasons is to give the owner (and relevant others) an understanding as to why the assessment will take longer than six months. The length of time that the process will take is clearly important to the owner.[59] The requirement to provide reasons at least arguably implies that the views of the owner have been ascertained and considered.
  2. Notwithstanding the requirement to provide reasons, an owner does not have a right to either a merits review or appeal on a question of law flowing from a decision to extend the assessment period. Contrary to the submission of the defendants, the fact that there is no other avenue of appeal supports the position that the right to be heard prior to making the decision is not excluded.[60]
  3. It is possible to conceive of a situation where the owner might have information which is relevant to the question of whether further time is needed, and if so how long. For example, if time is to be extended due to the remote location of a place the owner may be able to facilitate access.
  4. The requirement to complete the assessment as soon as practicable directs attention to the requirements of the case. The actions which need to be taken to complete the assessment. Although it involves considerable flexibility, the formulation has a well-established meaning which equates to "as soon as it can reasonably be done", rather than "within a reasonable time".[61] The choice of this phrase also indicates that time is important and the assessment is not to be open-ended at the discretion of the Heritage Council.
• [68] The Heritage Council gave no reason why it did not comply with the notice requirement. Section 23(4) is the only provision in the Act which expressly requires notice to an owner before or during the s 23 assessment process, other than where an urgent provisional declaration is made pursuant to s 36. Notwithstanding that, the defendants' position is that the provision is not essential and can effectively be ignored without consequence. Such an interpretation is not in keeping with the purpose of the Act in striking a balance between the interests of owners and the community's interest in heritage conservation. In my view the requirement to provide notice and reasons for extension of the assessment period is consistent with a general requirement to provide the owner with a right to be heard during the assessment period.

1. There are no practical reasons why notice could not be given.

• [69] I have considered whether the requirements of natural justice in relation to the s 25(1) decision would be so impractical as to make it unlikely that the Act contemplated such a course, and have come to the view that that is not the case. In many cases the obligation to afford an owner the right to be heard prior to making a s 25(1) decision will involve, as a minimum, provision of the key information in relation to the nomination and an opportunity to provide relevant information, either orally or in writing. This is consistent with the Heritage Council's power, to carry out research and make inquiries during the assessment process. Some further opportunity may be necessary if additional material is to be relied upon which is adverse to the owner and upon which they could sensibly comment. However, the nature of the opportunity required to afford natural justice will vary to suit the circumstances of each case.[62] I do not suggest that a formal hearing is required, or that every piece of information collected needs to be provided to an owner.
• [70] However, in a complex case such as this, involving a large area of land with many and varying factors and characteristics relevant to heritage, including many directly related to the activities of the City and its predecessors, it may be necessary for the Heritage Council to go beyond provision of basic information and engage in an iterative process, seeking information and cooperation, in order to properly assess the heritage significance.[63] However, questions of degree do not arise in this case since no notice was given.

1. As a local government authority the City had a particular interest in matters relevant to the question of heritage significance as they may impact its management, improvement and development of the area.

• [71] The City is a local government authority. As such, it has a special interest in a decision as to whether the area is of heritage significance flowing over and above its proprietary interest. There are two specific aspects to note in relation to the nature of that interest. First, given the nominated place is extensive, and covers diverse areas as described in the Heritage Assessment Report,[64] and has long been of interest to the community the City represents, is has an interest in precisely which areas of land included in the nominated places are determined to be of heritage significance. The Heritage Assessment Report acknowledges the diversity of the area including, for example, expressly considering whether two parts of the nominated area, Doctor's Gully and Lameroo Beach, should be "better understood as separate areas with their own distinct qualities".[65]
• [72] Secondly, for the same reasons, the City has an interest in the particular application of the heritage assessment criteria to the land. The interest of the City in the nominated area is not merely that of an owner, but also as the public manager of the land for the community.[66] The City and its antecedent local government bodies, appear to have been in control of the area broadly described as the Esplanade since at least 1921,[67] and possibly as early as 1874.[68] The Heritage Assessment Report contains numerous references to involvement of local government in the cultural history and association with the community relevant to the assessment criteria in s 11. Examples include: (1) constant use of the Esplanade as a "planning and social construct" and an "enduring public space" advocated for by town councils over the years; (2) the highly significant role in social and cultural life of the town including commemorations and events; (3) as a demonstration of city planning principles;[69] (4) extensive memorialisation;[70] and (5) contemporary uses.[71] These matters are specifically referred to in the concluding summary of the application of the s 11 criteria to the assessment of heritage significance at the end of the report.[72] The role of local government is part and parcel of the community's use of the area for more than 100 years.
• [73] An example of an issue upon which the City may have wished to make submissions relevant to the heritage assessment criteria, is the reference in the Heritage Assessment Report to a 2020 proposal to build a new RSL club house in the vicinity of the City of Darwin car park next to the Damoe-Ra steps. This issue is referred to in relation to the heritage assessment criterion in s 11(b), namely "whether [the place] possesses uncommon, rare or endangered aspects of the Territory's cultural or natural history", because the nominator was said to believe that the car park is endangered by threats of development.[73] A lengthy quote from the website of the Planning Action Network is included in the body of the heritage assessment report.[74]
• [74] There is no information in the heritage assessment report as to whether or not the development was likely to proceed, and no evidence that inquiries were made as to the validity or otherwise of the nominator's concern. Although included in the summary of relevant criteria, there was no reference to the issue in the statement of heritage significance. It is therefore not possible to know whether the Heritage Council regarded the factor as important or not.

• [75] I have found that the Heritage Council was required to provide the City a right to be heard before making a decision that the nominated area was of heritage significance. A breach of the rules of procedural fairness is a jurisdictional error which, if material, vitiates a decision.[75] An error in a decision making process is material if there is a realistic possibility that the decision could have been different if the error had not occurred.[76]
• [76] The City bears the burden of satisfying the court that there is a realistic possibility that a different decision could have been made had there been compliance. In Nathanson v Minister for Home Affairs the High Court described the standard required, as "reasonable conjecture", and "undemanding" and said that a party is not required to show how they might have taken advantage of the lost opportunity.[77]
• [77] In this case there is little doubt that, given the opportunity, the City would have made submissions to the Heritage Council prior to the decisions as to the heritage significance of the nominated area being made. It is possible that, had it done so, some or all of the area of land under consideration may have not been declared to be of heritage significance or, at least, the heritage assessment criteria may have been applied differently.[78] Therefore, the failure to provide natural justice was material in the relevant sense.
• [78] It follows that I find in favour of the City in relation to ground 1. In view of my decision in relation to ground 1 it is not strictly necessary that I determine the remaining grounds. However, in deference to the submissions made, I provide my reasons below as to why each cannot succeed.

Ground 2 - The decision was made after the expiry of the assessment period in s 23(1)(a) of the Act

• [79] This ground of review concerns the validity of the Heritage Council's extension of the assessment period in s 23(2) of the Act. The City argues that various failures of the Heritage Council to comply with the Act in the extension process mean that it did not validly extend the assessment period, with the result that the s 25(1) decision is invalid.
• [80] As the nomination was accepted on 21 December 2021, the assessment period in s 23(1) expired on 20 June 2022. The minutes of the meeting of the Heritage Council on 3 June 2022[79] record that the initial assessment report was presented at the meeting on that date and that there was "considerable discussion" about the extent of the area to be included in any call for submissions. There was also, according to the minutes, discussion about the further information which should be considered by the Heritage Council pursuant to s 25(1) and included in a statement of heritage value. The minutes record the passing of the following motion:

(a) A revised assessment report in relation to the Esplanade, incorporating further information about Damoe-Ra Park (including the presence of the 'OT well') and the natural values of the monsoon rainforest that fringes the site; and

(b) A revised Statement of Heritage Value incorporating these aspects, as well as more information about the importance of the site to Aboriginal people.[80]

• [81] There is nothing in the minutes expressly referring to the extension of time for the assessment required by s 23(2).
• [82] The evidence of Mr McGill was that at the meeting on 3 June 2022:

It was not possible to obtain that further information on the spot and further time was required to obtain and consider the information requested before a decision on the Esplanade heritage nomination could be made by the Council. Accordingly, the Council passed a motion to the effect that the Action Officers go away and come back with a revised statement of heritage value which addressed the above matters.[81]

• [83] Mr Michael Wells was the Director of the Heritage Branch within the relevant government Agency from well before the nomination was received until he retired in April 2023. Among other things, Mr Wells was responsible for the supervision of Ms Hubbard, the departmental staff member (action officer) originally assigned to complete the assessment report. Mr Wells' evidence was that he was aware from early 2022 that the assessment was more complicated than initially anticipated and required consideration of additional issues.[82] As a result, Mr Wells assigned an additional officer, Dr Samantha Wells, to assist Ms Hubbard.[83]
• [84] Mr Wells attended the meeting of the Heritage Council on 3 June 2022. He confirms that the assessment report was discussed and that the action officers were asked to conduct further research to assist the Heritage Council to assess the heritage significance of the Esplanade.[84] He said:

It was not possible for the Action Officers to provide the additional information requested by the Council during the meeting and as such, further time was needed for the Action Officers to obtain the requested information.

• [85] He then goes on to confirm that the motion passed by the meeting was in the terms set out in the minutes.[85] It is not disputed that no express motion extending the assessment period pursuant to s 23(1) was passed at the meeting of 3 June 2022.
• [86] The Heritage Council has a broad discretion to extend the assessment period. Leaving aside any implied requirement to afford natural justice to those affected, exercise of the discretion is conditioned only upon the satisfaction that it is not possible to complete the assessment in the six month period because, either the place is remote, or there are "other reasons it considers appropriate".[86] It was not in dispute that a failure by the Heritage Council to comply with the requirements of s 23(2) in relation to extension of the assessment period is a procedural defect of the type discussed in Project Blue Sky v Australian Broadcasting Authority[87] with the result that an error does not automatically lead to invalidity of the decision made by the Heritage Council on 30 September 2022.
• [87] However, the City submits that the failure does lead to invalidity of the relevant decision in this case, taking into account the purpose of the Act, because of the use of the word 'must' in s 25(1). The City further argues that the object of the Act is not thwarted by an interpretation leading to invalidity for failing to assess a nomination within an assessment period which was not validly excluded because the Heritage Council could either consider another nomination, or proceed to assess the heritage significance of the place pursuant to its own motion power in s 22 of the Act.
• [88] The defendants argue that invalidity flowing from the failure to comply with s 23(2) would thwart the objects of the Act because the scheme of the legislation is that nominations once made must be assessed. A finding of invalidity due to a failure to comply with a procedural requirement would, they say, mean that there would be no assessment of the nomination and that, as in this case, any provisional declaration would be set aside and a place found to be of heritage significance would not be protected.
• [89] There is some force in the defendants' argument that the scheme of the Act is that, once a nomination is made and accepted, it must proceed to assessment. The City's suggestion that that result could be avoided by a new nomination or the Heritage Council using its own power of nomination to re-start the process, would be likely to tie the process up in procedural knots which were never intended and would not in any way assist an owner, nominator or the Heritage Council. However, it is not necessary to decide that point in this case.
• [90] In my view the evidence establishes that the Heritage Council did decide on 3 June 2022 that further time was required to complete the assessment of heritage significance of the nominated place. All of the members present agreed to request the additional material. Consideration of the assessment was adjourned to the next meeting. The only rational inference to be drawn from the decision recorded in the minutes is that the members were satisfied that it was not possible to complete the assessment within the six month period because of the further information they required, and that it was therefore necessary to extend.
• [91] Having made the decision that further time was required, the Heritage Council was required to notify the owner pursuant to s 23(4). I have found above that the Heritage Council was generally required to give the City an opportunity to be heard before making the decision to extend the assessment period. The consequence of the Heritage Council's breach of procedural fairness is that the City has been denied the opportunity to make submissions as to the extension of time.
• [92] However, in the circumstances of this case there was, in my view, no realistic possibility that the making of submissions could have resulted in a different outcome so far as the extension of time was concerned. The assessment report was complex, and incomplete, and the Heritage Council was not in a position to consider it. No outcome except an extension of time was reasonably possible. Therefore, although there was a breach of procedural fairness prior to the decision being made, the breach was not material. Further, that breach is in any event subsumed in the greater failure to provide procedural fairness overall which is dealt with in ground 1.
• [93] Ground 2 cannot succeed. I next deal with ground 4.

Ground 4 - The Heritage Council misconstrued or misapplied the meaning of the word 'place' in the Act

• [94] The primary complaint of the City under this ground is that the area assessed by the Heritage Council is not a "place" within the meaning of the Act.
• [95] As noted above, 'Place' is defined in s 5 of the Act as "an area of land". It is also defined to include buildings or other items associated with a place. Examples given in the note to s 5 of the Act include a reef or cliff, cutting, gorge spring or other landform, a plant or animal community, fossil beds, and a park or garden. "Land" is defined in s 4 to include land covered by Territory waters.
• [96] The City argues that, read in context, a 'place' must be a single place, not an aggregation of places, because otherwise the heritage criteria in s 11 could not be sensibly applied in order to assess the heritage significance. The City also referred to the need for public submissions to be completed within 28 days, which was insufficient time if there were a lot of places.
• [97] The length of time which may be required for submissions will depend upon the complexity of the heritage significance assessment by reference to the s 11 criteria. However, there is no reason to find that the complexity of the heritage assessment is necessarily increased because a place includes more than one land title or geographic feature. The complexity of the assessment might be affected by the size of a place, but that is only one factor. Others may be more significant.
• [98] In my view, the nomination in this case was clearly in relation to a place within the meaning of the Act. The nomination refers to "the Esplanade Darwin" and describes the extent as "Doctors Gully in the Northwest to Government House in the Southeast". It goes on under the heading "Brief Description" to say "The Esplanade is public land generally zoned PS in the NT Planning Scheme with a carpark of about a quarter hectare to the Southeast zoned as CB. See attached Zoning Map Book Sheets 50 and 57."[88] There is also reference to some historical evidence of the understanding of the Esplanade as a continuous parkland area from the earliest days of European Settlement.
• [99] The area of land covered by the nomination was sufficiently described to enable it to be identified as a place for the purposes of the Act. The definition of a place in the Act is broad, and deliberately so. It was not necessary to specify the nominated area with the particularity which would be done in a survey plan or similar. Nor was it necessary to refer to particular lots or registered parcels, although this was at least partially done in this case by reference to the planning zones map attached to the nomination. What was necessary was that the area nominated could be identified for the purpose of the assessment.
• [100] The second argument of the City under this ground is that the nominated place is different from the place assessed by the Heritage Council which, in turn, is different from the place provisionally declared by the Minister for the purpose of the Act. The nominated area is said to differ from the area assessed for the purposes of the assessment of heritage value because it excludes from consideration the area comprising the Deckchair Cinema and Car Park, Jervois Road and Jervois Park.[89] The heritage assessment report describes the lots included in the assessment,[90] explains that Government House is already a declared heritage place, and goes on to set out the rationale for the assessment of the nominated place.[91]
• [101] It is in my view entirely reasonable for the Heritage Council, in carrying out an assessment of the heritage significance of a place to also refine the area to be assessed, where that is appropriate. By making relatively minor adjustments to the area for assessment, such as defining boundaries, the Heritage Council is doing no more than assessing the nominated area as part of the assessment process. It is consistent with the broad purpose of the Act, and the fact that a nomination can be made by anyone that a 'place' may not be precisely defined in a nomination.
• [102] Whether adjustments are such that the area assessed is in fact significantly different to the area nominated will usually be a matter of fact and degree. For example, exclusion of significant parts of a nominated area may amount to a decision that part of the nominated area is not of heritage significance, a decision which gives a nominator a right of review and requires the Heritage Council to take certain steps under the Act. That does not mean that the entire nomination would necessarily need to be abandoned. There is no reason why the assessment of heritage significance, and subsequent recommendation to the Minister, could not involve different decisions as to different parts of a nominated place.
• [103] After the Heritage Council resolved that the place described in the heritage assessment report was of heritage significance, a request was made to prepare a survey map in order that the Minister proceed with the provisional declaration required by the Act. Although the Act allows some reasonable flexibility in nominating an area for assessment, at the point where the Minister makes a declaration which affects an owner or occupier's rights to deal with their land, there must be precision.
• [104] Ms Hubbard's evidence was that, at the meeting of the Heritage Council on 30 September 2022, the Heritage Council considered a technical drawing which showed the area assessed as being of heritage significance.[92] Following the Heritage Council's decision, in October 2022, Ms Hubbard requested a certified plan from the Survey Land Records Unit (SLRU).[93] In preparing the certified plan the SLRU made changes to the technical drawing by relocating the water boundary of the area offset from the surveyed cadastral boundary to the outermost feature of the historic jetty in order to satisfy the intent of the Heritage Council's decision that the area of land capture places representing historic uses of the shoreline.[94] There was no other change by the SLRU to the drawing considered by the Heritage Council.
  • [105] It is plain that the changes made by the SLRU in drawing the plan to be attached to the provisional declaration are relatively minor, affect the sea boundary only, and are within the intent of the decision of the Heritage Council given the description in the assessment report which is referred to in the minutes. In the circumstances, the areas considered by the Heritage Council in making its decision and in the area included in the minister's preliminary decision are substantially the same. This ground cannot succeed.

Ground 3 - The Heritage Council failed to carry out its statutory functions as required by s 24 and s 25 of the Act

• [106] The City's complaint in this ground of review is that the Heritage Council erred in failing to consider the heritage significance of the place nominated by the nominator, and instead considered another place. For the reasons referred to in the discussion of ground 4 above, the City argues that the nominated place and the assessed place are not the same. The argument is also based upon the Heritage Council's poor record keeping in the minutes, as the City submits that because no record was kept of the area assessed it should be inferred that the requisite decision was not made.
• [107] The evidence of Ms Hubbard, read with the minutes of 30 September 2022, set out above establishes the area which was the subject of the decision of 30 September 2022. The evidence shows that there was a difference between the nominated area, the area in Ms Hubbard's technical drawing, and the area in the drawing prepared by the SLRU. As discussed above, those differences were either insubstantial and/or of the sort which could reasonably be expected to arise through the process of assessment set out in the Act.
• [108] The other complaint made by the City under this ground is that the heritage assessment criteria have not been separately applied to some separate areas within the place, namely (1) the three car parks, (2) Doctors' Gully, (3) The Esplanade roadway, or (4) the Palmerston Oval. It is further submitted that the Heritage Council erred in conflating places within the assessment area without any commonality and finding that because some places had heritage significance that must also be the case with others, such as the car parks.
• [109] This complaint is very close to an attack on the merits of the Heritage Council's decision. In so far as it is argued that the Heritage Council failed to take into account relevant considerations, the City must show what that failure entailed. It was clarified in oral submissions that the only parts of the land which were relevant for this ground were the car parks and roadways.[95]
• [110] I am not satisfied that the Heritage Council failed to consider the entirety of the place when applying the heritage criteria. There is evidence in the heritage assessment report that the whole area was considered in at least some respects. The City's submission ignores the wider context, which is that the car parks and roads were not always car parks and roads. The Heritage Assessment Report sets out the historical area,[96] and also refers to the area described as "Darwin Oval", which appears to include the car park at the top of the Damoe-Ra steps,[97] Doctor's Gully, again appearing to include the now car park area,[98] and the OT Well and Damoe-Ra Park.[99] There is no evidence, based on the assessment report and statement of heritage value that the Heritage Council has failed to take into account a relevant consideration by failing to assess any particular area. Accordingly, ground 3 must be dismissed.

Ground 5 - Because of the errors made by the Heritage Council in making the first decision the Minister's provisional declaration was a nullity

• [111] It was not in dispute that if ground 1 succeeded that this ground must also succeed.

Ground 6 - The area set out in the provisional declaration is not the same as the area in relation to which the Heritage Council's decision was made and therefore the provisional declaration is invalid

• [112] This ground must be dismissed for the reasons given in relation to ground 4.

Ground 7 - Was the Heritage Council's decision of 30 September 2022 invalid because it did not have a quorum?

Did Ms Moir have an indirect interest in the decision as to whether the Esplanade is of heritage significance?

• [113] The Heritage Council has ten members. At a meeting, a quorum requires six members. It is not in dispute that if a meeting is inquorate any decision made is invalid. There were six members present at the meeting of the Heritage Council on 30 September 2022. One of those was Ms Moir, who was appointed as a community member[100] on 2 February 2021 for a term expiring on 31 December 2023.[101] She became Deputy Chair from 30 September 2022.[102]
• [114] The City argued that the Heritage Council did not have a quorum on 30 September 2022 because Ms Katy Moir, a member of the Heritage Council, was not entitled to take part in the decision relating to the Esplanade due to a conflict of interest.
• [115] Ms Moir was an employee of the City from about 14 July 2021.[103] Her position at that time was described as "strategic planning officer". According to the position description, her role involved: coordinating development and delivery of the CBD master plan review and the movement strategy including stakeholder engagement; co-ordinating and chairing project control groups; providing strategic land use planning advice in accordance with Darwin City Council policy; analysing technical and specialist information relating to strategic town planning and existing area plans and priority development areas determined by Darwin City Council; providing spatial planning advice including in relation to Darwin City Council's initiated strategic development projects; case managing individual strategic land use planning projects; and preparing submissions and advocating council's position on strategic land use planning matters when required.[104]
• [116] On 28 July 2021 Ms Moir sought approval from the City for secondary employment in relation to her position with the Heritage Council. The application was supported by her supervisor with an endorsement which read:

Katy is to advise supervisor as soon as possible if there would be a potential conflict of interest related to her current strategic City of Darwin projects or potential City of Darwin projects - any project related to City of Darwin land.[105]

The form annexed to Ms Moir's affidavit is not signed by the relevant officer of the City, but there is no suggestion that the approval was not granted in the terms endorsed.

• [117] On 11 June 2022 Ms Moir was promoted to the position of Senior Coordinator of Strategic Projects and Events with the City, having acted in that job since February 2022.[106] The position description described the more senior role as including: leading and overseeing the functions of city growth and development projects and community events; reviewing and identifying opportunities for improvement in those areas; planning for outdoor spaces and venues in collaboration with stakeholders to meet the needs of the community and the events industry; managing approvals provided to external events of the City's land; and ensuring statutory and policy requirements are implemented.[107]
• [118] Ms Moir submitted a further application for secondary employment in relation to her position with the Heritage Council in October 2022 (after the decision of 30 September 2022). Ms Moir's declaration form was completed by the acting CEO of the City who decided that the role as Deputy Chair of the Heritage Council did not constitute a conflict of interest and authorised Ms Moir to continue in the role on the condition that:

If during your role as Deputy Chair, please remove yourself with regarding the oversight or decision of any City of Darwin matters that may be presented.[108]

• [119] Ms Moir left the City's employment on 8 March 2023.[109] It is not disputed that Ms Moir did not, at any time during her employment, provide to the City any information in relation to the nomination or the decisions made by the Heritage Council in relation to the Esplanade. It is not suggested in this proceeding that Ms Moir acted with malice or at any time engaged in any deliberate wrongdoing in relation to either her employment or her membership of the Heritage Council.
• [120] What comprises a direct or indirect interest is not defined in the Act. However, it may be accepted that an indirect interest does not include an interest which is "too remote or insubstantial".[110]
• [121] Whether a member has a relevant interest will not always be easy to determine, particularly where the interest is indirect. In assessing whether Ms Moir had an indirect interest in whether the Esplanade is a place of heritage significance in accordance with the Act, the City submits that the starting point is the rule of procedural fairness known as the bias rule. The test for the apprehension of bias was set out in Ebner v Official Trustee:[111]

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.[112]

• [122] As to whether there is an apprehension of bias in a particular case, the High Court in Ebner said:

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[113]

• [123] The Heritage Council argued that Ms Moir could not have an interest in the matter being considered at the meeting on 3 June or 30 September 2022 because the decision was only as to the assessment of the heritage significance of the nominated place, which in the scheme of the Act was not a final decision affecting the City's rights. The submission was that this followed from the fact that the process did not involve an adversarial procedure, in the sense of weighing potentially competing submissions. The process was contrasted to a decision to recommend to the Minister that a permanent heritage declaration be made.[114]
• [124] The Heritage Council's decision that the Esplanade is an area of heritage significance was a decision which, in accordance with the scheme of the Act, led to the provisional declaration of the Esplanade as a heritage place, with consequent restrictions upon the use of the land by the City, and other owners. Although the decision occurred at the end of the first stage of the process for declaration under the Act, it could not be said to be without consequence for the City.
• [125] In participating in the decision required to be made by the Heritage Council as to the heritage significance of the City's land, Ms Moir was in a position of potential conflict between her loyalty to the City, her employer, and her obligations as a member of the Heritage Council. The inevitable consequence of a decision that the Esplanade was of heritage significance was a provisional declaration which would impose significant, although temporary, restrictions upon the City's use and management of the land.
• [126] The role of Ms Moir as an employee of the City concerned strategic land use planning advice and advocating for the City's position on strategic land use planning matters. She was also responsible for leading and overseeing city growth and development projects and community events, including identifying opportunities for improvement and planning for outdoor spaces and venues including the events industry. Community events and festivals are a feature of the City's management of Bicentennial Park.[115]
• [127] A decision which restricted the City's ability to carry out work on the Esplanade was potentially in conflict with the City's use of the area within the scope of Ms Moir's employment responsibilities. This is the case notwithstanding that there was no evidence from the City of any actual impact, and that the Act and the Regulations permit "exempt work" which includes erection of temporary structures which do not damage or endanger anything of heritage significance on the land and do not obstruct significant views from the heritage place.[116]
• [128] By participating in the decision in relation to the nomination for heritage protection of the Esplanade, without having first advised her employer and obtained their agreement, Ms Moir risked adverse action in relation to her employment contract. This was a situation recognised by Ms Moir's supervisor in her comments in relation to the secondary employment application of 28 July 2021. Due to the potential impact upon her employment of her participation, Ms Moir had an indirect interest in the matter under consideration. It follows that Ms Moir was required to make a declaration under s 137(1).

• [129] Ms Moir declared an interest in the assessment of the Esplanade nomination at the meeting of the Heritage Council on 3 June 2022. The declaration of interest is recorded in the minutes of the meeting, as required by the Act. The record in the minutes states "Katy Moir declared an interest in relation to Agenda item 9.1 (assessment of The Esplanade) as she is employed by the City of Darwin".[117] The minutes do not contain any other record of what was discussed.
• [130] The Chairman of the Heritage Council, Mr McGill, gave evidence by affidavit as to what happened at the meeting. He said:
  1. Ms Moir declared an interest in relation to the agenda item which related to the Esplanade heritage nomination because she said she was employed by the City.
  2. I did not have any concerns as to Ms Moir's participation in the deliberations or decisions relating to the Esplanade heritage nomination.
  3. I asked the other Council members who were present at the meeting if they shared my view. None of the Council members present said that they had any concerns with Ms Moir remaining in the room to engage in the deliberations and decisions relating to the Esplanade heritage nomination despite her declaration of interest.[118]
• [131] Mr McGill went on to explain the practice of the Heritage Council at meetings where a declaration of interest is made. He said that if the Chair and other members present consider that a declaration of interest should not prevent a member participating in deliberations and decisions in relation to an agenda item, there is deemed to be "no action arising" from the declaration, there would be no "formal resolution" passed to that effect, and the member is permitted to participate. It was the practice of the Heritage Council not to record such a decision in the minutes. However, where members considered that the declaration of interest should prevent the member from participating then Mr McGill said that the action arising was a direction that the member absent themselves from deliberations and decisions relating to that item. In that case the action was noted in the minutes and the member was required to leave the room at the time that the agenda item is discussed.[119]
• [132] Mr McGill's evidence was that, in accordance with the practice of the Heritage Council when members did not consider that the declaration should prevent participation, Ms Moir's declaration of interest was minuted as "noted", and she did not absent herself.[120]
• [133] Ms Moir's affidavit evidence was that at the meeting of 3 June 2022 she declared an interest in item 9.1 on the Agenda, the assessment of the Esplanade. She said that:
  1. ...I made this declaration out of an abundance of caution because of my employment with the City and because I noted that the City was recorded in the assessment report as having a proprietary interest in parts of the Esplanade the subject of the assessment report under review by the Council.
  2. In relation to my declaration, I recall that at that stage of the meeting, the Chair discussed my declaration of interest and none of the Council members present (including the Chair) raised any concerns as to my participation in the deliberations or decisions relating to Agenda Item 9.1.[121]
• [134] Ms Moir then explained that in her experience where members do not consider that a declaration of interest prevents another member from taking part in a decision, a formal motion to that effect is not passed and recorded, but instead the declaration is noted and the member remains in the room for the deliberation and decision. Ms Moir contrasted this with the situation where members thought that the interest declared meant that the member should not take part. She said that in those circumstances the member is asked to leave the room and that departure, and re-entry, is recorded in the minutes. Ms Moir confirmed that following her declaration being noted she participated in deliberations and decision making at the meeting.[122] Ms Moir's evidence is consistent with that of Mr McGill, and was not challenged.

Was Ms Moir required to make a further declaration at the meeting on 30 September 2022?

• [135] The City pointed out that the declaration of interest was made only at the meeting of 3 June 2022, not at the meeting of 30 September 2022 and submitted that the fact that Ms Moir had had a promotion in the meantime meant that a further declaration should have been made.[123] However, the evidence shows that although her formal appointment to the higher level position did not occur until 21 June 2022, Ms Moir had been acting in the higher level position since February 2022. In my view the formalisation of her employment role did not significantly change Ms Moir's position between 3 June and 30 September 2022.
• [136] The matter being considered by the Council on 30 September 2022 was a decision as to whether the Esplanade nominated area was of heritage significance.[124] This was the same matter which had been considered at the meeting of 3 June 2022 when the decision was deferred pending an updated assessment report.[125] As the matter being considered on each occasion was the same, and the interest declared by Ms Moir was unchanged, there was no need for a further declaration of interest on 30 September 2022.

Did the Heritage Council make a valid decision made pursuant to s 137(4) of the Act?

• [137] Section 137 of the Act is in these terms:

(1) If a member of the Council has a direct or indirect interest in a matter being considered or about to be considered by the Council, the member must disclose the nature of the interest at a Council meeting as soon as practicable after the relevant facts come to the member's knowledge.

(2) The disclosure must be recorded in the Council's minutes.

(3) The member must not, while having that interest:

(a) take part in any deliberation or decision of the Council relating to that matter; or

(b) form part of the quorum of the Council in any deliberation or decision of the Council relating to that matter.

(4) However, subsection (3) does not apply if the Council resolves the subsection does not apply to the member.

(5) Despite the resolution, the member may refuse to take part in any deliberation or decision of the Council relating to the matter.

• [138] Having declared her interest on 3 June 2022 Ms Moir was unable to participate further in the deliberation or decision, or form part of the quorum at any meeting at which the Esplanade nomination was under consideration, unless there was a resolution pursuant to s 137(4) that s 137(3) did not apply to her.
• [139] There is no qualification upon the words "does not apply" in s 137(4). The Act contains no guidance, or criteria, which the Heritage Council is required to take into account in making the decision. The City argued that the bias rule, coupled with the principle of legality, operate on s 137(4) such that the Heritage Council cannot make a decision that s 137(3) does not apply to a member where there is in fact a direct or indirect interest.
• [140] In my view the Heritage Council has a discretion as to whether the member who has declared an interest is restricted as required by s 137(3), or not. Section 137 is a procedural section directed to the meeting process. It requires a member of the Heritage Council to address and consider potential issues of bias or conflict of interest. It does not seek to curtail any common law right or freedom. The provision enables the members present to resolve the question of whether a member who has declared an interest should participate. There are no restrictions upon the making of that decision. The result of a decision in the affirmative is simply that the member may participate in the meeting.
• [141] A wide variety of circumstances may give rise to an interest, particularly an indirect interest, which a member must disclose. It is consistent with Act,[126] and the efficient organisation of the Heritage Council's business that it has the power to determine who should participate in its meetings at the time the issue is raised. However, that decision does not affect any fundamental right. In other words, a decision by the Heritage Council to allow a member to participate will not prevent a decision being later impugned, for example on the ground of actual or apprehended bias. But it will determine matters of process, such as whether there is a quorum.

Did the Heritage Council make a decision pursuant to s 137(4)?

• [142] The City submitted that the Heritage Council did not, as a decision-making body, turn its mind to the questions of whether Ms Moir had a relevant interest and whether subsection 137(3) should apply to her.[127] The submission was that the Heritage Council was required to make a formal decision as to each of those matters and to minute the decisions made, and that it can be inferred from the fact that there are no minutes that no such decisions were made. The City refers to the evidence of Mr McGill and Ms Moir and says that evidence does not show that all of the other members present agreed that s 137(3) should not apply to Ms Moir in relation to her declaration of interest.
• [143] Pursuant to s 136(2) a question arising for decision at a meeting must be resolved according to the opinion of a majority of the members present. In the event of equal division, the chairperson has a casting vote. The Act does not prescribe any voting procedure.
• [144] Section 136(3) requires "proper minutes" to be kept of meetings. Section 136(4) states that, except as provided in the Act, the Heritage Council may decide its own procedures. There is no guidance in the Act as to what proper minutes should include, however it is reasonable to assume that requirements similar to that for company minutes was envisaged.[128]
• [145] The evidence shows that the question of Ms Moir's participation was raised by Mr McGill and put to the members present on 3 June 2022. Mr McGill's evidence was that at that meeting he expressed the view that he had no objection to Ms Moir participating in deliberations and decisions and then asked each of the members present whether they disagreed. No-one did. The minutes show that there were eight members present, including Ms Moir. There was clearly a quorum.
• [146] In substance, Mr McGill put to the members present the question whether Ms Moir should, in view of the interest she declared, take part in the deliberation and decision making in relation to the Esplanade nomination, although the language of s 137(4) was not used. The method by which the resolution proceeded, asking each member whether they agreed, is effectively the same as a vote by "show of hands" in that each member had an opportunity to indicate their opinion, or to abstain. There is no requirement in the Act that a motion must be passed in any particular format at a meeting of the Heritage Council. Therefore I find that there was a valid resolution pursuant to s 137(4) that s 137(3) did not apply to Ms Moir.
• [147] So far as the City's contention that the Heritage Council was required to determine whether Ms Moir in fact had an interest, the requirement to do so was limited by the terms of s 137(4). It is implicit in the decision made that either the Heritage Council did not consider that Ms Moir had an interest or, if she did, that it was not such that she should be prevented from participation in deliberations and decisions on the heritage significance of the Esplanade. The Heritage Council may or may not have been wrong about that. But that is not the point.
• [148] The resolution was not recorded in the minutes. Proper minutes should record decisions such as this.[129] However, that is not a failure of the type which renders the decision invalid. The test in Project Blue Sky v Australian Broadcasting Commission is whether it is a purpose of the legislation that an act done in breach of the relevant provision should be invalid.
• [149] The requirement to keep proper minutes is a matter which goes to the administrative process of the Heritage Council in carrying out its functions. There is nothing in the text of the Act which indicates that it is an essential preliminary to the exercise of those functions.[130] The failure to record in the minutes the Heritage Council's decision that Ms Moir was able to participate in deliberations and decisions as to the Esplanade nomination did not make the decision pursuant to s 137(4) invalid. It follows that the Heritage Council was not inquorate at its meeting on 30 September 2022. Therefore ground 7 must be dismissed.
• [150] It was not argued that Ms Moir was actually biased, and there is no evidence to suggest that she was. It was also not a ground of review that there was a denial of procedural fairness, on the ground of apprehended bias because of Ms Moir's participation. Although there was said to be an "overlap" between this ground and ground 1,[131] it was submitted that the reference to the bias principle was for the limited purpose of demonstrating that Ms Moir had an indirect interest in the matter under consideration by the Heritage Council on 3 June and 30 September 2022, such as to raise the obligation to disclose that interest pursuant to s 137(1), with the result that the Heritage Council was inquorate on 30 September 2022.[132]

• [151] I have upheld the City's first and fifth grounds of judicial review. It follows that the decision of the Heritage Council must be set aside together with the provisional declaration made by the Minister.
• [152] I will hear the parties as to the exact form of the orders and as to costs.

[1] The plaintiff owns Town of Darwin lots 5245, 5248, 5249, 5551, 5706, 5964, 11132, and 11133. The plaintiff does not own lots 3480, 5635, 6574, 7534, 7535, 8109 and 10881 (part of which is included in the area): CB 152-153. The nomination area included one previously declared heritage object (the Darwin Cenotaph declared in 2000) and one declared heritage place (Peel's Well near Doctor's Gully declared in 2003), together with a registered sacred site which is protected under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) CB 31. Government House was also previously declared a heritage place: CB 353.

[2] See Annexure A to these reasons, copy of Minister's declaration and map of The Esplanade declared heritage area.

[3] Heritage Act 2011 (NT) (Heritage Act), s 3(1).

[4] Heritage Act, s 19.

[5] Heritage Act, s 124.

[6] Heritage Act, s 125.

[7] Heritage Act, s 111(1).

[8] 'Objects' can also be nominated and the same provisions apply. The Heritage Council has an 'own motion' power to conduct an assessment. Heritage Act, s 22.

[10] Heritage Act, s 5.

[11] Heritage Act, s 21.

[12] Heritage Act, s 23. The period also commences upon the Heritage Council deciding to assess a place or the Minister making a declaration that they do so under s 36(3).

[13] Heritage Act, s 23(2).

[14] Heritage Act, s 23(3).

[15] Heritage Act, s 23(4).

[16] Heritage Act, s 24.

[17] Heritage Act, s 25.

[18] A review notice is a notice under s 34 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT).

[19] Heritage Act, s 26.

[20] Heritage Act, s 4.

[21] Heritage Act, s 37.

[22] Heritage Act, s 39.

[23] Heritage Act, s 27.

[24] Heritage Act ss 28, 29.

[25] Heritage Act, ss 30, 31.

[26] Heritage Act, s 33(2).

[27] Heritage Act, s 32(3).

[28] Heritage Act, s 34.

[29] [2001] HCA 22 at 94-102, [130] - [146].

[30] Robin Creyke et al, Control of Government Action (LexisNexis, 6th edition, 2022), 542 - 545 [10.2.11] - [10.2.13].

[31] (2016) 259 CLR 180, 205 [75]. It was not argued by either party that the plaintiff, a body corporate established in accordance with the Local Government Act 2019 (NT), is in a different position than an individual for this purpose.

[32] Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 97 ALJR 575, [28] per Kiefel CJ, Gageler, Gleeson and Jagot JJ.

[33] Local Government Act 2019 (NT), s 265.

[34] [1992] HCA 10; (1992) 175 CLR 564 (Ainsworth).

[35] Supra at 578, referring to South Australia v O'Shea (1987) 163 CLR 378, 389, per Mason CJ.

[37] [2013] QSC 182.

[40] Heritage Act s 32.

[41] Heritage Act, s 34.

[43] Ben Boer and Graeme Wiffen, Heritage Law in Australia (Oxford University Press, 2006) 205.

[44] Heritage Act, ss 25(3), 90, 91, Schedule 1.

[45] Heritage Act s 25(3), s 90, s 91, and Schedule 1. Perhaps surprisingly, owners, along with occupiers, submitters and nominators (other than the Minister), do have a right to seek a merits review of a decision pursuant to s 27(1) not to recommend to the minister that a permanent declaration be made.

[46] Heritage Act, s 93, Schedule 2.

[47] Re Minister for Immigration and Multicultural Affairs; ex parte Miah, above n 33, p 99 per McHugh J.

[48] [1996] FCA 1509; (1996) 149 ALR 78.

[49] Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss 9 and 10.

[50] Aboriginal & Torres Strait Islander Affairs, Minister for v Western Australia [1996] FCA 1509; (1996) 149 ALR 78, 90.

[52] Heritage Act s 26(1)(a).

[54] A s 36 declaration is subject to appeal on a question of law but not a merits review.

[56] Northern Territory, Parliamentary Debates, Legislative Assembly of the Northern Territory, 10 August 2011 p 8310 (Minister for Natural Resources, Environment and Heritage). The reference to "this part of the process", in context, must mean the nomination and assessment process in Part 2.2 of the Act.

[57] And the notifier s 24(3).

[58] Heritage Act s 23(1).

[59] See Minister's second reading speech set out at [61] above.

[60] The same would apply to the requirement for notification and provision of reasons to a nominator, as required by s 23(3).

[61] D Greenberg, Strouds Judicial Dictionary of Words and Phrases, Sweet and Maxwell, London, 2000, p 184.

[62] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 350.

[63] See discussion in Aboriginal & Torres Strait Islander Affairs, Minister for v Western Australia [1996] FCA 1509; (1996) 149 ALR 78, 91.

[67] Proclamation on 22 March 1921 referred to in Heritage Assessment Report CB 455.

[68] Claimed 'vesting' of parts of The Esplanade by Palmerston District Council, CB 453.

[69] Noting also reference to Darwin City Centre Master Plan initiated by the City of Darwin in 2015 at CB 501.

[70] Set out in Heritage Assessment Report, CB 480 - 499.

[71] CB 490. Such as "Greek Glenti".

[75] CYN17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140, [54] - [55].

[76] LPDT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, [7], [15].

[77] [2022] HCA 26, 13, [33] per Kiefel CJ, Keane and Gleeson JJ.

[78] For example the reliance in the assessment report upon assessment criterion in s 11(b) as discussed above at [73], CB 113.

[81] Affidavit of Allan McGill 28 June 2023 at [26]; CB 665.

[82] Affidavit of M Wells 3 July 2023 at [24]; CB 729.

[84] Affidavit of M Wells 3 July 2023 at [30]; CB 730.

[86] Heritage Act s 23(2).

[87] [1998] HCA 35; (1998) 194 CLR 355, [91], [93] per McHugh, Gummow, Kirby and Jayne JJ.

[88] CB 254, sheets 50 and 57 are CB 261 and 262.

[89] CB 349. This map on page 3 of the heritage assessment report of September 2022 shows the area.

[92] Affidavit of Sarah Hubbard insert date at [7]; CB 717.

[100] There is no "community member" described in the Act, but the appointment is taken to be pursuant to s 128(2)(e) of the Act.

[101] Affidavit of Katy Moir 2 November 2023 at [9]; CB 768.

[102] Affidavit of Katy Moir, 2 November 2023 at [9], CVB 768.

[103] Affidavit of Katy Moir 2 November 2023 at [19]; CB 768.

[110] Aurizon Network Pty Ltd v Queensland Competition Authority [2018] QSC 246, [139].

[111] [2000] HCA 63; (2000) 205 CLR 337.

[114] Transcript 17/11/23, p 61. A reference to the decision of the Heritage Council required to be made pursuant to s 27 of the Act.

[116] Heritage Act, s 78(1); Heritage Regulations 2012 (NT), r 3.

[118] Affidavit of Allan McGill 1 November 2023; CB 757.

[121] Affidavit of Katy Moir 2 November 2023 at [35] - [36]; CB 772 - 773.

[126] Heritage Act, s 136(4).

[128] A summary of the history of and requirements for minutes was set out by Young J in John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63, 113.

[129] Heritage Act, s 136(3).

[130] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510, [62] - [63].