Gameplan Sports & Leisure Pty Limited v South Sydney City Council & Ors

Land and Environment Court (NSW)|1995-06-26|Before: Cowdroy J, Mr P, Mr J

The application of the provisions of s 39(5) of the Court Act and the provisions of s 93(4) of the unamended EP&A Act to a class one appeal pursuant to s 97 of the unamended EP&A Act was judicially considered by Talbot J in Overton Investments Pty Limited v Sutherland Shire Council NSWLEC no: 130352/90, unreported. His Honour observed:- The determination by the Court on 1 November, 1990 was made pursuant to Section 97 of the EPA Act and in so doing the Court was exercising its power pursuant to that Act and the Land and Environment Court Act. That determination is deemed to be the final decision of the council and shall be given effect to as if it was a decision of the council (see Section 93(4) EPA and Section 39(5) Land and Environment Court Act).

Although council made a ' determination ' in respect of the application on 31 August 1995, that decision is not, in view of Gameplan's appeal, a determination for the purpose of cl 11 and cl 15. Upon the interpretation reached above, supported by the decision of Talbot J, there has been no 'final' determination by the council, as required in cl 11 and cl 15 of the Transitional Regulations. Pursuant to s 93(4) of the unamended EP&A Act and s 39(5) of the Court Act the decision of the Court in relation to an appeal pursuant to s 97 of the unamended EP&A is deemed to be the final determination of a development application. Since the class one appeal was filed on the 15 June 1996 it follows that both cl 11 and cl 15(1) of the Transitional Regulations apply to the application. Such clauses are to be interpreted as applicable to a determination which finally disposes of the application for development consent.

It follows that the integrated development provisions contained in Pt 4 Div 5 of the amended EP&A Act have no operation in the determination of the application.

Gameplan acknowledges that an application for development consent for the site must be made pursuant to s 58(1) of the Heritage Act since the site is now an item listed on the State Heritage Register pursuant s 32 of that Act. Section 58 of the Heritage Act provides:- 58 Application of Subdivision (1) This Subdivision applies to an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57(1). (2) This Subdivision applies in addition to, and not in derogation from, the provisions of any other Act or statutory instrument under which an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57(1) is required to be made.

The Attorney-General submits that the express words of the provisions of s 57(1) and Part 4 Div 3 of the Heritage Act provide that Gameplan cannot proceed with the development of the site until the Heritage Council has granted development consent. Section 57 of the Heritage Act relevantly provides:- 57 Effect of interim heritage orders and listing on State Heritage Register

(1) When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3: (a) demolish that building or work, (b) - (d) not relevant e) carry out any development in relation to the land on which that building, work or relic is situated, the land which comprises that place, or that land; f) alter that building, work or relic g) - (f) not relevant

The express words of s 57(1) and of s 58(1) of the Heritage Act support the construction relied upon by the Attorney General. Section 57(1) of the Heritage Act which provides inter alia ' a person must not ' develop a state heritage listed item without consent operates to prohibit development until an approval is granted by the Heritage Council pursuant to s 63 of the Heritage Act.

Gameplan has submitted that if the amended EP&A Act and particularly the provisions relating to integrated development do not apply, the Court can proceed to determine the class one appeal. In support of such submission Gameplan relies upon Rosecorp Pty Limited v Leichhardt Municipal Council (2000) 106 LGERA 1 and s 39(6) of the Court Act. In Rosecorp Pty Limited v Leichhardt Municipal Council the Court held that the Land and Environment Court was not a consent authority as defined in s 4 of the unamended EP&A Act. The Court held at 7:- Upon the exercise of the right of appeal provided by s 97 of the EPA Act, the Court adjudicates upon the determination by the consent authority whose decision is challenged. This process however does not constitute the Court as a "consent authority" for the purposes of the EPA Act.

Gameplan further submits that in the circumstance that the Court finds the application is not an application for integrated development, s 67 and s 76 of the Heritage Act does not apply to the application. The submission is predicated upon the assertion that the application would not be a 'prescribed application' as defined in s 56 of the Heritage Act.

Section 56 defines prescribed application as:- "prescribed application" means an application for the approval of a consent authority under any of the following: (a) the Environmental Planning and Assessment Act 1979, not being an application relating to integrated development, (b) - (e) not relevant in respect of the doing or carrying out of an act, matter or thing the doing carrying out of which requires an approval of the Heritage Council under Subdivision 1 of Division 3 of this Part.

Section 67 of the Heritage Act provides:- 67. An approval given by a consent authority to a prescribed application before the Heritage Council's determination of the application has been notified to the consent authority is void.

Section 76 of the Heritage Act relevantly provides:- 76 . If, under the Environmental Planning and Assessment Act 1979, any environmental planning instrument in force under that Act … an applicant has a right of appeal arising from the making of a prescribed application, that right is to be exercised by making that appeal to the Minister despite those Acts or any such instrument.

The appeal before the Court is not affected by the operation of the provisions of the Heritage Act. Such Act requires an applicant for development of lands the subject of a State Heritage Registrar listing to lodge on application for development to the Heritage Council. The statutory procedures prescribed by the Heritage Act creates a legal regime which operates independently of the appeal instituted in this Court pursuant to s 97(1) of the unamended EP&A Act. The rights of appeal of Gameplan in relation to the application made pursuant to the provisions of s 58 of the Heritage Act are to be determined according to the provisions of that Act.

Gameplan also relies upon s 39(6) of the Court Act. It provides:-

(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979, and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body - (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted; and (b) in a case where the concurrence or approval has been granted - the Court may revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. As the appeal to this Court is determined independently of the Heritage Act, s 39(6) of the Court Act has no relationship to the question asked of the Court and is accordingly not a matter for determination. It follows that the provisions of s 67 and s 76 of the Heritage Act have no bearing upon Question 2 as posed to the Court and it is unnecessary to determine whether any application by Gameplan pursuant to s 76 is a 'prescribed application'. 33. In answer to Question 2 the Court determines that as the site is an item listed on the State Heritage Register pursuant to s 32 of the Heritage Act, Gameplan pursuant to s 57 and Pt 4 Division 3, Subdivision 1 of the Heritage Act is obliged to submit to the Heritage Council an application for approval in relation to any work to be carried out on the site before any development thereof takes place.

The determination of the notice of motions filed by the Heritage Council on 1 May 2000 and 26 May 2000 is only necessary if the Court finds that Gameplan's development application is to be determined as an integrated development pursuant to Pt 4 Div 5 of the amended EP&A Act.

Since the Court has found that Gameplan's application is not an application for integrated development the Heritage Council does not press its notice of motion to be heard pursuant to 97(5)(b) of the unamended EP&A Act. The Court dismisses the notices of motion filed on the 1 May 2000 and on 26 May 2000 by the Heritage Council.

Whilst Gameplan seeks an order for the payment of its costs, the Court considers that each party should bear its own costs.

The Court answers each of the questions as follows:-

The Development Application which is the subject of these proceedings is to be determined in accordance with the provisions of the Environmental Planning & Assessment Act 1979 as it existed immediately prior to the commencement of the amendments to that Act in 1998.
The applicant is required to make an application to the Heritage Council pursuant to Part 4, Division 3 of the Heritage Act 1977 in respect of the development as identified in DA U95-00516.

As to the notice of motion filed by the Heritage Council of New South Wales the following order is made:-

The Court orders the notice of motion be dismissed.
The Court orders each party to pay its own costs.

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

As the appeal to this Court is determined independently of the Heritage Act, s 39(6) of the Court Act has no relationship to the question asked of the Court and is accordingly not a matter for determination. It follows that the provisions of s 67 and s 76 of the Heritage Act have no bearing upon Question 2 as posed to the Court and it is unnecessary to determine whether any application by Gameplan pursuant to s 76 is a `prescribed application'.

33. In answer to Question 2 the Court determines that as the site is an item listed on the State Heritage Register pursuant to s 32 of the Heritage Act, Gameplan pursuant to s 57 and Pt 4 Division 3, Subdivision 1 of the Heritage Act is obliged to submit to the Heritage Council an application for approval in relation to any work to be carried out on the site before any development thereof takes place.

34. The determination of the notice of motions filed by the Heritage Council on 1 May 2000 and 26 May 2000 is only necessary if the Court finds that Gameplan's development application is to be determined as an integrated development pursuant to Pt 4 Div 5 of the amended EP&A Act.

35. Since the Court has found that Gameplan's application is not an application for integrated development the Heritage Council does not press its notice of motion to be heard pursuant to 97(5)(b) of the unamended EP&A Act. The Court dismisses the notices of motion filed on the 1 May 2000 and on 26 May 2000 by the Heritage Council.

36. Whilst Gameplan seeks an order for the payment of its costs, the Court considers that each party should bear its own costs.

37. The Court answers each of the questions as follows:-

1. The Development Application which is the subject of these proceedings is to be determined in accordance with the provisions of the Environmental Planning & Assessment Act 1979 as it existed immediately prior to the commencement of the amendments to that Act in 1998.

2. The applicant is required to make an application to the Heritage Council pursuant to Part 4, Division 3 of the Heritage Act 1977 in respect of the development as identified in DA U95-00516.

38. As to the notice of motion filed by the Heritage Council of New South Wales the following order is made:-

1. The Court orders the notice of motion be dismissed.

2. The Court orders each party to pay its own costs.

Planning and Assessment Act 1979

Environment Court Act 1979

Environmental Planning and Assessment Savings and Transitional Regulations 1998cl 11, s

Assessment (Savings and Transitional) Regulation 1998

Environmental Planning and Assessment Amendment Act 1997

Environmental Planning and Assessment Savings and Transitional Regulation 1998

CITATION : Gameplan Sports & Leisure Pty Limited v South Sydney City Council & Ors [2000] NSWLEC 112 APPLICANT Gameplan Sports & Leisure Pty Limited PARTIES : RESPONDENT South Sydney City Council & Ors FILE NUMBER(S) : 10021 of 1996 CORAM: Cowdroy J KEY ISSUES: Question of Law :- Application of the Environmental Planning and Assessment Savings and Transitional Regulation 1998 - whether development application had been determined by consent authority in accordance with provisions of Environmental Planning and Assessment Savings and Transitional Regulations 1998 -whether development application constitutes application for integrated development - whether development consent required from Heritage Council of New South Wales. Environmental Planning and Assessment Act 1979 (unamended) s 64(2), s 93(4), s 97(5)(b) Environmental Planning and Assessment Act 1979 s 91 LEGISLATION CITED: Heritage Act 1977 s 58 Land and Environment Court Act 1979 s 39(6) Environmental Planning and Assessment Savings and Transitional Regulations 1998 cl 11, s 58 CASES CITED: Overton Investments Pty Limited v Sutherland Shire Council NSWLEC no: 130352/90, unreported; Rosecorp Pty Limited v Leichhardt Municipal Council (2000) 106 LGERA 1 DATES OF HEARING: 24/5/00 DATE OF JUDGMENT: 06/14/2000

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