Currey v Hargraves &

KEY ISSUES: Judicial Review :- heritage item - development consent - loss of view - alleged invalidity of development consents - construction of planning instrument - delegated authority - power to grant development consent - privative clause - Hickman principle - whether failure to impose a condition is manifestly unreasonable

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76B, s 78A, s 79C(1)(b), s 101 Environmental Planning and Assessment Regulation 2000 cl 49, cl 50(1)(a)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568; Bromley London Borough Council v Greater London Council [1983] 1 AC 768; Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528; 36 LGRA 159; Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929; [1963] 3 All ER 180; GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51; Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322; J R Hunt Real Estate Pty Ltd v Hornsby Shire Council (1997) 130 LGERA 45; Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266; Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; CASES CITED: Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273; Newcastle City Council v Kermir Pty Ltd (1989) 69 LGRA 289; North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247; Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206; Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226; R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598; Save Our Street Inc v Settree (2006) 149 LGERA 30; Weal v Bathurst City Council (2000) 111 LGERA 181; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707

APPLICANT: C M Harris SC and M C Fraser (barrister) SOLICITORS: Conditsis & Associates

FIRST and SECOND RESPONDENTS: LEGAL REPRESENTATIVES: P M Jackson (solicitor) SOLICITORS: Pike Pike & Fenwick

THIRD RESPONDENT: J A Ayling SC SOLICITORS: Abbott Tout

JUDGMENT:

• 13 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: The first and second respondents, Mr John Charles Hargraves and Mrs Leonie Jean Hargraves, are the owners of a property at Nos. 3-7 Elizabeth Drive, Noraville, known as Noraville House. The house was built in the 1860's and both the building and the land are listed as a heritage item of state significance under the Wyong Local Environmental Plan 1991 ("the LEP"). 2 On 27 October 2003, the third respondent, Wyong Shire Council, granted development consent for "additions and alterations to Noraville House and additional tourist accommodation" ("the first consent"). On 10 February 2006, the council again granted development consent for "additions and alterations to Noraville House and additional tourist accommodation" ("the second consent"). 3 The applicant, Mr William Phillip Currey, lives next door to Noraville House. The effect of the two development consents is that Mr Currey will lose part of the view of the coast that he hitherto enjoyed from his property. He claims declarations that each of the development consents is void, together with consequential relief. The arguments advanced in support of each claim are slightly different for the first consent and the second consent. It is therefore appropriate to consider each of the two consents separately. 4 There was, however, one aspect which is common to both development consents. Only Mr J C Hargraves signed the development application in each case. It was originally contended that one ground of invalidity was that there was no valid development application in each case because the applications had not been made by or with consent in writing of each of the owners of Noraville House, as required by s 78A of the Environmental Planning and Assessment Act 1979 ("EP&A Act") and cll 49 and 50(1)(a) of the Environmental Planning and Assessment Regulation 2000 ("the Regulation"). During the hearing, however, the applicant indicated that this ground was no longer pressed in view of the subsequent consent of Mrs L J Hargraves. Moreover, it is clear that the Court, in the exercise of its discretion, would not grant relief on this ground in the light of that consent, since the objective of the relevant provisions has been satisfied.

The first consent 5 The applicant raises two grounds of alleged invalidity: (i) the development consent was issued by Mr R A Butt, the council's Director of Health and Development, when he did not have delegated authority to do so; and (ii) there was no power to grant consent because the preconditions to the power to do so, that is, the requirements of cl 36 of the LEP were not met. 6 The council concedes that Mr Butt did not have delegated authority to issue the first consent at the time that he purported to do so. 7 The council denies that cl 36 was not met or was not properly considered and applied. The council further says that on 5 November 2003 public notice was given to the granting of the first consent and accordingly any allegation of invalidity cannot now be entertained: s 101 of the EP&A Act. This aspect of the case is considered in pars [27] -[33] below. 8 Noraville House is within zone 2(a) (Residential Zone) under the LEP. The use or development of land for the purpose of tourist accommodation is prohibited in that zone. Clause 36 of the LEP, however, provides an exception - it allows such development if the conditions of that clause are satisfied. 9 Clause 36 is relevantly as follows: 36 Conservation incentives (1) The Council may grant consent to the use, for any purpose, of a building that is a heritage item or of the land on which the building is erected, even though the use would otherwise be prohibited by this plan, if it is satisfied that: (a) the proposed use would not adversely affect the heritage significance of the item and would have little or no adverse effect on the amenity of the area, and (b) the conservation of the building depends on the granting of the consent. … 10 The evidence shows that on 14 August 2002, Andrews Neil, a firm of architects, wrote to the council stating that they had been engaged to prepare a development application for alterations and additions to Noraville House. The letter referred to cl 36 of the LEP, the fact that extensive repairs are required to the building and that its conversion to a bed and breakfast facility will enable the funding of its ongoing maintenance. 11 Annexed to the Andrews Neil letter was a report to the New South Wales Heritage Approvals Committee prepared by New South Wales Heritage Office, dated 7 August 2002, which notes that the proposed change of use from a private residential property to a bed and breakfast facility will provide sufficient income to carry out the initial conservation work and to maintain the property in an adequate manner thereafter. Also annexed to the Andrews Neil letter was a schedule of works required. 12 On 1 November 2002, Mr Hargraves sent to the council a copy of a submission he made to the Heritage Council on 31 October 2002. In that submission Mr Hargraves pointed out the need to raise funds to conserve the house and he set out a number of options to that end, including the option of a bed and breakfast operation. 13 On 7 September 2004, the applicant's solicitors wrote to the council asking, amongst other things, what documents were before the General Manager when he made his determination regarding the second consent. By letter dated 17 September 2004, the General Manager of the council advised that the Director Health and Development had delegated authority to determine the application and that he had before him the report submitted to the council and the plans and specifications. 14 The report is some 14 pages in length. It states, inter alia, that extensive conservation works are required and the owner needs to raise funds to carry out these works. It also states that the owners of Noraville House now seek approval for the current application reflecting the option described as the option involving "construction of a single storey, two bedroom cottage for Bed and Breakfast accommodation, refurbishment of the existing kitchen building adjacent to Noraville House and construction of a separate garage" which was endorsed by the Heritage Office as the preferred option. 15 Under the heading "Wyong Local Environmental Plan 1991", the report notes that the site is zoned 2(a) Residential and then sets out the full text of cl 36(1) of the LEP. The report then continues: Council and the Heritage Office consider the proposal to be sympathetic to the heritage significance of the existing heritage buildings and believe that the proposal will not adversely affect the heritage significance of the item or the amenity of the area. Council and the Heritage Office are also convinced that the ongoing maintenance and conservation of Noraville House depends upon funding received through the operation of the proposed tourist accommodation. Without this funding, it is likely that the current owner of Noraville House will be unable to carry out essential maintenance works and the heritage item will physically deteriorate. Clause 35 of the Wyong LEP 1991 requires Council to consider the likely effect of the proposed development on the heritage significance of a heritage item and it's setting when determining an application for consent to carry out development on land in its vicinity. This clause is particularly relevant to the application as it is proposed to build a new cottage adjacent to Noraville House. The proposed cottage is intended to complement the design of Noraville House and is located in a position where an original building of a similar scale stood. 16 Under the heading "Conclusion" the report states: In the last 10 years the owner has undertaken various repairs to "Noraville House", however there are still extensive conservation works required and the owner needs to raise funds to carry out these works. Allowing adaptive re-use of the heritage item and sympathetic buildings for use as tourist accommodation will produce a sufficient revenue stream to restore the House and maintain its heritage significance in the long term. Council has worked closely with the Heritage Office, affected property owners and the applicants to ensure that the proposal is sympathetic to the existing heritage item and existing views through the property are maintained, where appropriate. In this regard, the application is worthy of Council support and is therefore recommended for conditional approval. 17 Mr C M Harris SC and Mr M C Fraser, appearing for the applicant, submit that there was nothing before the council to show that the conservation of the heritage building "depends on" the granting of the consent, as required by cl 36(1)(b). Whilst it is self-evident that the granting of the consent together with the consequent income from the tourist accommodation would "assist in" or "contribute to" the conservation of the building, they submit that phrase "depends on" in cl 36 implies something stronger, for which there was no evidence, such as the cost of conservation work and estimate of the likely income to be derived for that purpose. 18 Mr Harris further submits that there has to be a connection, a dependency between the consent and the conservation of the building. Moreover, there must be a nexus between the consent that is being considered and the conservation of the building. He submits that neither the council nor the owners have tendered any evidence of material being placed before the council when the application was being considered from which the council could conclude that the conservation of Noraville House depended on a granting of consent. 19 The submission focuses on the words "depends on" in cl 36(1). It must be remembered, however, that the LEP is subordinate legislation and not drafted with the particularity or specificity of a statute. It should not be construed in a strict or over-technical way, but rather in a practical, reasonable and common sense way: Newcastle City Council v Kermir Pty Ltd (1989) 69 LGRA 289 at 294; Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266 at 279. 20 It is necessary, therefore, to construe the LEP with the flexible and practical approach to construction adopted by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929; [1963] 3 All ER 180, an English building regulation case:

I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the practical trade or industry … so they ought to be construed in light of practical considerations rather than by a meticulous comparison of the language of their various provisions such as might be appropriate in construing of an Act of Parliament. 21 These comments of Lord Reid have been cited and adopted in interpreting and applying subordinate legislation, including planning instruments: Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531; 36 LGRA 159 at 163-164; Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323; GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51 at 53; Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 at 236. 22 The thrust of Mr Harris' argument focuses on the words "depends on" in the clause. In North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247, Kirby P said (at 245): In Towne v Eisner 245 US 418 (1918), Holmes J, in the Supreme Court of the United States of America, said (at 425): A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used. 23 In the same case Kirby P called in aid the apparent policy of the instrument. In the present case, the stated objectives of the LEP include, "in relation to conservation, to protect, conserve and provide for the enhancement of items of environmental heritage": cl 2(2)(h). 24 This objective would be achieved if income from tourist accommodation would "assist in" or "contribute to" the conservation of the heritage item. Looseness of expression and the interchangeability of words are not uncommon in subordinate legislation. As noted by Kirby P, words may vary greatly in colour and content according to the circumstances in which they are used. In my view the requirement that "the conservation of the building depends on the granting of the consent" is, in the circumstances, met if the consent "assists in" or "contributes to" the conservation of the building, since that would achieve the objective described in cl 2(2)(h). Moreover, as has been said elsewhere, "the machinery of government would not work unless it were allowed a little play in its joints". 25 Clause 36 required the council to be satisfied that the conservation of Noraville House depends, in the relevant sense, on the granting of the consent. It was open to the council to be satisfied that the conservation of Noraville House depends on the funding to be received through the operation of the proposed tourist accommodation. It had the Andrews Neil letter of 14 August 2002 to which was annexed the schedule of required works. Moreover, it was the council that had to be satisfied under cl 36, not the Court. 26 If I am wrong, however, s 101 of the EP&A Act operates to prevent any challenge to the validity of the consent, whether that challenge is based on either the first or the second ground of alleged invalidity. 27 Section 101 is as follows: 101 Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given. 28 Mr Harris submits, however, that s 101 does not protect the consent in the present case. He relies, in particular on an assertion that the grounds relied upon in this case are inviolable restraints which amount to an essential, indispensable, imperative duty which s 101 does not protect, citing Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 and Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695. 29 Mr Harris submits that there are at least two ways to avoid s 101 - one is by being able to bring oneself within the Hickman principle and another is by being able to establish that a statutory requirement sought to be protected by s 101 is such an essential feature of the legislative scheme in which it forms a part that it could not possibly have been the parliament's intention that a privative provision operate in relation to it. 30 Mr Harris concedes that, on the state of the law at the present time, particularly as a consequence of the Anambah Homes decision, the facts in this case do not infringe the Hickman principle: R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 615. That is, he concedes that I am bound by authority to find that the granting of the consent was a bona fide attempt to exercise the power; that it related to the subject matter of the legislation; and it is reasonably capable of reference to the power given to the council. Mr Harris also concedes that I am bound by authority to find that s 101 protects a decision or determination from jurisdictional error: Woolworths Ltd v Pallas Newco Pty Ltd at 723 [79] and [80] per Spigelman CJ (Mason P, Sheller JA and Cripps AJA concurring). 31 In making these concessions, however, Mr Harris acknowledges that I am bound by the authorities to which he referred, but he does not wish it to be taken that if the matter were to go further he may not wish to assert to the contrary. That is, Mr Harris indicated that these are questions which he may wish to re-open if this case were to go elsewhere, but it was pointless in arguing to the contrary before me, acknowledging that I am bound to follow the authorities. 32 In Pallas Newco, Spigelman CJ nevertheless accepted that a provision containing a restriction or requirement may nevertheless be construed as being of such significance in the legislative scheme that it constituted a limitation or requirement that is "essential", "indispensable", "imperative" or "inviolable". In Lesnewski, the Court of Appeal expressly held (at [76]), that s 101 does not protect against such a restriction or requirement. In Anambah Homes, Spigelman CJ listed (at [19]) the kinds of matters that have been found to be inviolable restraints. 33 The applicant submits that it was the intention of the legislature that any approval given in breach of s 76B of the EP&A Act would be invalid. That section states that if an environmental planning instrument provides that specified development is prohibited on land to which the provision applies, a person must not carry out the development on that land. Moreover, the applicant submits that it could not have been the intention of the legislature, having established a statutory prohibition which is so clear and succinct, that a breach of that prohibition would not make the approval given invalid. 34 The question of whether a particular requirement or restraint is inviolable may be open to different answers. I note that the requirements or restraints here, namely the lack of delegated authority to the decision-maker and the failure to satisfy cl 36 of the LEP, are not the same kind of restraints identified by Spigelman CJ in Anambah Homes. The delegate, Mr Butt had apparent or ostensible authority to issue the consent, and since the consent was one which the council itself could have issued, I am inclined to the view that his lack of a valid delegation was not inviolable: see Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568, Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206 and J R Hunt Real Estate Pty Ltd v Hornsby Shire Council (1997) 130 LGERA 45. In relation to cl 36 of the LEP, since that clause leaves to the council the question of whether it is satisfied that its provisions have been met, I am again inclined to the view that this discretionary consideration is not one which is inviolable in the relevant sense. 35 I conclude, therefore, that s 101 of the EP&A Act precludes any challenge to the validity of the first consent.

The second consent 36 At some stage it appears that the council became aware of the fact that Mr Butt did not have a valid delegation to issue development consents. It accordingly invited Mr Hargraves to make a second development application, which was then considered and approved. The second consent was granted on 10 February 2006. There is thus no issue in the present case about absence of delegated authority; neither is there any issue arising under s 101 of the EP&A Act, since these proceedings were commenced within the time allowed by that section. 37 The applicant raises the following two grounds of alleged invalidity: (i) cl 36 of the LEP was not satisfied; and (ii) the council failed to take into consideration the impact upon views from Mr Currey's property as required by s 79C(1)(b) of the EP&A Act, and its failure to impose a condition to preserve those views was manifestly unreasonable. 38 The applicant relies on essentially the same ground as in the first consent in relation to the council's consideration of cl 36. The report on the second development application recites the history of the matter; the fact that the Heritage Office had issued its general terms of approval for the first application; the fact that the Heritage Office had advised that "the current application proposes no works different from what was previously approved" and that "no further approval is required from the Heritage Office provided any further consent is consistent with the Heritage Council's previous approval". 39 Under the heading "Wyong Local Environmental Plan 1991" the report prepared for the council again sets out the terms of cl 36. After referring to cl 35 of the LEP - the likely effect on the heritage item and on its setting - and to the general terms of approval of the Heritage Office, the reports states: The application has also been assessed under the above clauses of Wyong LEP and the proposal has been found to meet the objectives and referrals of the above clauses. 40 I accept the submission of Mr J A Ayling SC, appearing for the council, that it is unrealistic to treat the second application as one which was considered and determined by the council as if it did not know the history of the matter and as if the consideration it gave to the first application had not occurred. That history, as noted above, was set out in the report, including the fact that the second application had been solicited by the council to cure the defect identified in the first consent. The determination of the second application was made after a consideration of the same material that was submitted in support of the first development application and the subject matter of the second development application was the same as the subject matter of the first development application. It is in that context that the statement was made in the report that the application had been assessed under the relevant clauses of the LEP and the proposal had been found to meet the objectives of those clauses. Accordingly, I do not accept the applicant's submission that there has been a failure to comply with cl 36, not only for these reasons but also for the reasons for rejecting the same submission in relation to the first consent. 41 I now turn to the second ground of alleged invalidity. In its determination of the first development application the council required the proposed garage to be moved so as to preserve the view available from Mr Currey's property. At that time there were trees and shrubs on the Noraville House site which did not rise high enough to block that view. By the time the council came to consider the second development application the trees and shrubs had grown to a height which obstructed the view. 42 The applicant submits that in its consideration of the second development application the council failed to give consideration to protecting views from his residence. The applicant submits the council could have given such consideration by imposing an appropriate condition of consent to require that the plants and trees be kept at a limited height. The fact that a condition of this kind can be lawfully imposed was confirmed in Dipper v Pittwater Council [2006] NSWLEC 273. 43 The applicant further submits that the failure of the council to impose a condition of this kind was manifestly unreasonable in the Wednesbury sense: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Mr Harris submits that the decision was manifestly unreasonable for two reasons - firstly, because there was no material submitted to the council in relation to cl 36 and secondly, having recognised the importance of the views to the applicant, there was no condition imposed on the second development approval which required the removal of the foliage that had somehow grown up in the previous three years to block the applicant's views. The applicant's case is that a condition ought to have been imposed requiring that vegetation be removed or requiring any foliage there be kept by the first and second respondents below a certain height, so that the view would be preserved. 44 I have considered and rejected the applicant's submission in relation to the council's consideration of cl 36. Moreover, the report to the council on the second development application shows, however, that the question of view loss was in fact considered. Under the heading "Views" in the report, the impact on views is addressed. This section of the report includes the following: Previous concerns relating to the loss of views predominately related to the planting of trees and shrubs within and along the boundaries of the property and not the proposed additions or new buildings. One current objection received for the development, however specifically relates to loss of views resulting from the cottage and family room additions and also vegetation along the southern boundary of the property. The issues of view loss associated with the above existing buildings and vegetation however, are not being assessed as part of the current application. The existing buildings on site and any associated issues relating to them will be assessed under a 149D Building Certificate application. Any removal or major pruning of trees on the site, requires prior application to the Heritage Council for their approval under the Heritage Act, prior to Council being able to approve any tree removal or pruning to increase the views from neighbouring properties. 45 One may not agree with the above approach, but it cannot be said that no consideration was given to the question of view loss. 46 Moreover, in my opinion it cannot be said that the failure of the council to impose a condition of consent limiting the height of shrubs and trees was manifestly unreasonable. It has been said that the test of manifest unreasonableness is whether the decision, looked at objectively, was "so devoid of plausible justification that no reasonable body or persons could have reached it": Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821; or it was "so devoid of plausible justification that no reasonable person could have taken that course": Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290. These formulations of the test were adopted by Mason P in Weal v Bathurst City Council (2000) 111 LGERA 181 at 188 [27]. 47 A court which is limited to reviewing a decision for errors of law must exercise caution in considering whether the decision is void for manifest unreasonableness, lest it slide into an impermissible merits review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 per Mason J. In the present case, the shrubs and trees were already there. Clearly, if there had been no development application then absolutely nothing could be done about them. The failure of the council to impose a condition of the kind suggested is not so devoid of plausible justification that no reasonable person or body would have done so. As Biscoe J pointed out in Save Our Street Inc v Settree (2006) 149 LGERA 30 at 38 [31]: There is a distinction between a decision which the court considers is unreasonable, and a decision which the court considers is so unreasonable that no reasonable body could have come to it. The latter requires "something overwhelming'" [Citing Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 [44]]. 48 I conclude, therefore, that the challenge to the validity of the second consent also fails.

Orders 49 It follows that the application must be dismissed. It would also normally follow that the applicant must pay the respondents' costs, but in case the applicant wishes to argue to the contrary, the order for costs is made conditional upon no notice of motion for some other order as to costs being filed and served within fourteen days. 50 The formal orders of the Court are: (1) The application is dismissed. (2) The applicant must pay the respondents' costs, unless a notice of motion for some other order as to costs is filed and served within fourteen days. (3) The exhibits may be returned. I hereby certify that the preceding 50 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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