CITATION: Hurst v Launceston City Council [2021] TASSC 23

APPEALED FROM: M Hurst v Launceston City Council and M & R Patterson [2020] TASRMPAT 25

Environment and Planning - Environmental planning - Development control - Matters for consideration of consent authority - Consideration of particular planning matters - Heritage - Planning scheme containing heritage code applicable to specified places - Places described by street numbers and title references - Whether heritage code applicable to place after change of street number and title reference.

Land Use Planning and Approvals Act 1993 (Tas), s 20(2)(aa); Sch 1, Pt 1, cl 1(b); Sch 1, Pt 2, par (g).

Judgment Number: [2021] TASSC 23

1 The Launceston Interim Planning Scheme 2015 contains a provision entitled "E13.0 Local Historic Cultural Heritage Code". That Code contains, in Table E13.2, a list of the places to which it applies. This appeal concerns a dispute as to whether it applies to some land now known as 173A George Street, Launceston. That question arose in a planning appeal before the Resource Management and Planning Appeal Tribunal ("the Tribunal"). The owners of the subject land, Mr and Mrs Patterson, who are respondents to this appeal, contended that the Code did not apply to their property. The appellant, Matthew Hurst, and the Launceston City Council both contended that the Code did apply. On 14 October 2020 the Tribunal, constituted by its Chairperson, Ms M Duvnjak, dealt with the question as a preliminary point and held that the Code did not apply: M Hurst v Launceston City Council and M & R Patterson [2020] TASRMPAT 25. This is an appeal from that decision.

2 The solicitors for the Council and Mr and Mrs Patterson filed notices advising that they would submit to any order that the Court might make, save as to costs. Only the appellant was represented at the hearing of this appeal.

3 Clause E13.2.1(b) of the scheme provides that the Local Historic Cultural Heritage Code applies to use or development of land "listed in Table E13.2: Local Historic Cultural Heritage Places".

4 Table E13.2 lists hundreds of places identifying them by reference to their street number, street name, suburb, and title details. The title details provided are the volume and folio numbers of the folio of the register under the Land Titles Act 1980 for each place. One of the places listed is "175 George St Launceston". Its title details are shown as volume 63837 folio 2. There is no longer such a folio of the register.

5 In June 2020 Mr and Mrs Patterson applied to the Council for a planning permit under the Land Use Planning and Approvals Act 1993 ("the LUPA Act") in respect of their property, 173A George Street Launceston, whose title reference is volume 178272 folio 1. That property forms part of the land which, in 2015, was known as 175 George Street and comprised in volume 63837 folio 2. A permit was sought for a single residential dwelling. The Council decided to grant the permit. The appellant appealed to the Tribunal, contending that the development proposal did not comply with various provisions of the Local Historic Cultural Heritage Code.

6 The owners contended that the Code did not apply to the property since neither its street address nor its title reference appeared in Table E13.2. The Tribunal accepted that submission. The learned Chairperson recognised that she was faced with conflicting submissions as to the construction or interpretation of the planning scheme. Her reasons for her determination concluded with the following paragraphs:

"30 The Proposal Site is not identified by street address or by Title reference in Table E13.2. The Tribunal accepts the submissions of the Second Respondent [the owners]. There is no information in the Table which enables a person to understand that the Proposal Site may be captured by the Heritage Code. Not only are the current Title details not listed, but the prior Title detail is also not listed given the multiple dealings with the site since the commencement of the Scheme.

31 The Tribunal accepts the Second Respondent's position that a requirement to undertake a forensic assessment of land listed in Table E13.2 in order to determine application of the Heritage Code defeats the purpose of a listing, being to provide a clear record of heritage places to which the Heritage Code applies. Table E13.2 must be capable of being understood on its terms.

32 It would have been a simple exercise to include in the Heritage Code an express provision that the Heritage Code applies to all that land identified in Table E13.2 however so modified by subsequent dealings. This would have put any person consulting the Scheme on notice that a historic search of Titles and street addresses was required. Alternatively, Table E13.2 could have included, as a descriptor, identification of the local heritage place by boundary description. Absent such provision, Table E13.2 would need to be amended to give effect to the changes to Title and street addresses which occur as a result of dealings with respect to the land in question.

33 The Tribunal finds that the Proposal Site is not a local heritage place as it is not listed in Table E13.2 of the Scheme. The Heritage Code does not apply to the Proposal."

7 The planning scheme took effect on 29 April 2015. At that time s 20(1)(a) of the LUPA Act required a decision-maker, in making an interim planning scheme, to seek to further the objectives set out in Sch 1 to that Act within the area covered by the scheme. Those objectives included provisions to the following effect:

• One of the objectives of the planning process established by the LUPA Act was "to conserve those buildings, areas and other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value": Sch 1, Pt 2, par (g).
• One of the objectives of the Resource Management and Planning System of Tasmania was "to provide for the fair, orderly and sustainable use and development of air, land and water": Sch 1, Pt 1, cl 1(b).

8 It was also the duty of the Tribunal to further those objectives: Resource Management and Planning Appeal Tribunal Act 1993, s 5(3).

9 When the planning scheme was made, s 20(2)(aa) of the LUPA Act allowed for a planning scheme to "make any provision which relates to the ... protection or conservation of any land" in the area of the planning scheme. That provision applied to interim planning schemes by virtue of s 20(2A)(b).

10 Clearly the purpose of the Local Historic Cultural Heritage Code was to protect places with historic cultural heritage significance. The Code itself makes that quite clear. Clause E13.1 reads as follows:

"E13.1 Purpose of the Local Historic Cultural Heritage Code

(a) protect and enhance the historic cultural heritage significance of local heritage places and heritage precincts;

(b) encourage and facilitate the continued use of these places;

(c) encourage the maintenance and retention of buildings and places of assessed historic cultural heritage significance; and

(d) ensure that development is undertaken in a manner that is sympathetic to, and does not detract from, the historic cultural heritage significance of the places and their settings."

11 Planning schemes are legislative instruments. They have to be interpreted in accordance with the established principles as to the interpretation of legislation. As a general rule, the words of a legislative instrument should be given their ordinary literal meaning: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 26 CLR 129 at 161-162; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47].

12 This appeal concerns the proper interpretation of cl E13.2.1(b) of the planning scheme, which makes the Local Historic Cultural Heritage Code applicable to "land ... listed in Table E13.2". Does that provision make the Code applicable to places listed in the table only so long as the street numbers and volume and folio numbers in the table remain current? Or does the clause make the Code applicable to all the places which had the street numbers and volume and folio numbers that appear in the table as at 29 April 2015?

13 The former interpretation, which was adopted by the Tribunal, would have absurd and inconvenient consequences. If the Council were to give a new street number to a place listed in the table, or to part of such a place, the planning scheme would cease to provide the protection that the cultural significance of the place warrants. Similarly, if a subdivision, a boundary adjustment, or an internal administrative decision led to the Recorder of Titles creating a new folio of the register with new volume and folio numbers for a place listed in the table, or part of such a place, the intended protection would be lost. To maintain the protection that places of cultural significance warrant, the Council would need to initiate amendments to the scheme. Until such time as the required statutory steps were taken and the amendments finally made, places with new numbers would go unprotected. Developers would have windows of opportunity to obtain planning permits that would not be granted for the same places when the Code applied. That situation would be absurd. It would be inconvenient for the Council. It would be inconsistent with the statutory objective of fair and orderly use and development of land. It would be inconsistent with the statutory objective of conserving places of special cultural value. Most significantly, it would be inconsistent with the purpose of the Code.

14 It would of course be more convenient for purchasers and developers if Table E13.2 did not contain any street numbers or title references that had been changed. However any person wishing to ascertain whether the Code applies to a particular place can find out by making enquiries of the Council or by conducting title searches.

15 Purchasers' solicitors routinely obtain certificates under s 337 of the Local Government Act 1993. The form of certificate is prescribed by the Local Government (General) Regulations 2015, reg 45 and Schs 5 and 6. Schedule 6 sets out a list of questions that a council is required to answer. Question 13(b) requires the council to state whether there is any site-specific qualification applying to the land for which the certificate is sought and, if so, to name the provision or provisions of the planning scheme in which the qualification appears. It follows that the Council must be required to disclose the applicability of the Code whenever it issues a s 337 certificate in respect of a place listed in the table, even if the street number or title reference appearing in the table is stale.

16 For the reasons stated, the context and purpose of cl E13.2.1(b) of the planning scheme require that provision to be given an interpretation that will protect all the places that were listed in that table at the time when the scheme took effect in 2015. The Tribunal erred in law by adopting a different interpretation.

17 I therefore allow the appeal, set aside the decision made on 14 October 2020, and remit the matter to the Tribunal with a direction that the Local Historic Cultural Heritage Code in the Launceston Interim Planning Scheme 2015 applies to the land now comprised in folio of the register volume 178272 folio 1.