Kenmore Property Development Pty Ltd v Secretary, Department of Climate Change, Energy, the Environment and Water

Medium Neutral Citation: Kenmore Property Development Pty Ltd v Secretary, Department of Climate Change, Energy, the Environment and Water [2025] NSWLEC 131

Hearing dates: 14 November 2025

Date of orders: 14 November 2025

Decision date: 14 November 2025

Jurisdiction: Class 1

Before: Preston CJ

Decision: The Court orders:
(1) The proceedings are dismissed.
(2) There be no order as to costs with the intention that each party pay their own costs of the proceedings.

Catchwords: PRACTICE AND PROCEDURE – summary dismissal of appeal – application to modify development consent for integrated development – approval body refused to grant general terms of approval – consent authority refused modification application – appeal against approval body’s refusal to grant general terms of approval – no appeal against consent authority’s refusal of modification application – competency of appeal – where the approval body erroneously considered a modification application to be a development application for integrated development – where the approval body had no power to issue general terms of approval to a modification application – whether approval body made an appealable determination – decision not to grant general terms of approval not an appealable determination – Court lacked power to make orders sought by applicant – appeal summarily dismissed

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.45, 4.46, 4.47, 4.55, 8.7, 8.9, 8.10
Heritage Act 1977 (NSW), ss 57(1), 63(3), 65A(1)(b), 70
Land and Environment Court Act 1979 (NSW), s 39

Category: Principal judgment

Parties: Kenmore Property Development Pty Ltd (Applicant)
Secretary, Department of Climate Change, Energy, the Environment and Water (Respondent)

Representation: Counsel:
C. Collett (Applicant)
J. Smith (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicant)
Department of Climate Change, Energy, the Environment and Water (Respondent)

File Number(s): 2025/340474

Publication restriction: NIL

EX TEMPORE JUDGMENT

1. Kenmore Property Development Pty Ltd (Kenmore) has, by filing a Class 1 application in the Court, sought to appeal under s 70 of the Heritage Act 1977 (NSW) against the refusal of the Heritage Council of NSW to provide to Goulburn Mulwaree Council (the Council), the consent authority for an application made by Kenmore to modify an existing development consent, general terms of any approval proposed to be granted by the Heritage Council in relation to the development.

2. An issue has arisen as to the competency of the appeal and the jurisdiction of the Court to hear and dispose of the appeal. At the first directions hearing, a Registrar of the Court raised concerns regarding the competency of the appeal. Kenmore disputed that the appeal was incompetent. The Court on its own motion listed the matter today for argument as to the competency of the appeal. At today’s hearing, the Respondent Department, in whose portfolio the Heritage Council sits, contends that the proceeding should be dismissed as Kenmore has no right of appeal under s 70 of the Heritage Act. Kenmore, however, maintains its position that it does have a right of appeal under s 70 of the Heritage Act against the Heritage Council’s refusal to provide general terms of approval for the integrated development proposed by Kenmore.

3. I have determined that Kenmore’s appeal is incompetent and the Court has no jurisdiction to hear and dispose of the appeal. The appeal should be summarily dismissed.

Kenmore applies to modify the existing development consent

4. On 7 August 2012, the Council granted development consent to a Masterplan for the development of the former Kenmore Psychiatric Hospital at 191 Taralga Road, Goulburn (the 2012 development consent). That development was integrated development, as the hospital site was listed on the NSW State Heritage Register as ‘Kenmore Hospital Precinct’. The Heritage Council had provided to the Council the general terms of approval proposed to be granted by it in relation to that development. The development consent granted by the Council in 2012 was consistent with the Heritage Council’s general terms of approval.

5. Kenmore now wishes to amend the Masterplan the subject of the 2012 development consent to expand the residential development potential of the site and to address certain conditions of the 2012 development consent associated with the approved Masterplan. To this end, Kenmore applied to the Council under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to modify the 2012 development consent to amend the Masterplan as proposed. As is required, Kenmore lodged the modification application on the NSW Planning Portal on 25 September 2023. The Council reference number for the application was MODDA/0021/2324. The description of the application was: “Section 4.55(2) modification to Kenmore Masterplan to increase residential density.” The Planning Portal recorded the “Group” as “Modification”, the “Category” as “DA Modifications” and the “Sub Category” as “(2) Other modifications”.

Consultation with the Heritage Council regarding the modification

6. A NSW Government concurrence and referral request was subsequently submitted through the NSW Planning Portal. It is not clear on the face of the documents before the Court who made that request, although the notice from the Planning Portal to Kenmore was entitled “NSW Government concurrence and referral request CNR-63037 (Goulburn Mulwaree Council)”. This would support an inference that the Council made the request.

7. This inference is also supported by the legislative requirement in s 4.55(2)(b) of the EPA Act that the consent authority consult with an approval body (within the meaning of Division 4.8) in respect of a condition of consent imposed in accordance with the general terms of an approval proposed to be granted by the approval body. The Heritage Council is an approval body (as defined in s 4.45 in Division 4.8 of the EPA Act) and it provided its general terms of approval to the Council, which were imposed as conditions of the 2012 development consent. Although the precise respects in which Kenmore sought to modify the 2012 development consent was not before the Court, it appears likely that the proposed modification would amend or vary conditions of the 2012 development consent imposed in accordance with the Heritage Council’s general terms of approval. The approved Masterplan retained one of the building forming part of the State heritage-listed Kenmore Hospital Precinct, Building 18. The proposed modification of the 2012 development consent includes a proposal to demolish Building 18. In these circumstances, the Council was required by s 4.55(2)(b) of the EPA Act to consult with the Heritage Council.

8. The Heritage Council responded to the concurrence and referral request on 5 September 2024. In its response, the Heritage Council records the request as having been received by the Heritage Council on 22 April 2024. If so, the Heritage Council did not comply with the time requirement in s 4.55(2)(b) of the EPA Act of responding within 21 days after being consulted. That non-compliance has a consequence. The power of a consent authority under s 4.55(2) to modify a development consent is conditional upon, amongst other requirements, the consent authority consulting under s 4.55(2)(b) with the relevant approval body and that body not objecting to the modification of that consent “within 21 days after being consulted”. The Heritage Council, on its record, did not object to the modification of the consent within 21 days after being consulted, but rather some four and a half months after being consulted.

9. In any event, the Heritage Council’s response did not accord with the terms of s 4.55(2)(b) of the EPA Act of objecting to the modification of the consent. Instead, the Heritage Council erroneously framed its response as being in accordance with s 4.47(4) of the EPA Act, informing the Council that it “will not grant approval of the above described integrated development application”. The above described integrated development application was said to be “Masterplan for the site of previous Kenmore Hospital, Taralga Rd, Goulburn NSW 2580”. This was incorrect. Kenmore had not lodged a development application under s 4.12(1) of the EPA Act for consent to carry out development of a new Masterplan that is integrated development, but instead lodged an application to modify the existing 2012 development consent to amend the approved Masterplan. The Heritage Council’s purported “refusal to grant terms of approval” in relation to an integrated development application that had not been made was, therefore, legally ineffective.

The Council’s refusal of the modification application

10. Notwithstanding the Heritage Council’s failure to respond to the Council within 21 days after being consulted and responding in accordance with the inapplicable statutory provision of s 4.47 of the EPA Act rather than the applicable s 4.55(2) of the EPA Act, the Council determined on 23 October 2024 to refuse the modification application, partly for the reason that the Heritage Council had not granted its general terms of approval. The notice of determination for refusal of the modification application identified the “Proposal” as “Section 4.55(2) modification to Kenmore Masterplan to increase residential density” and the “Modification Application No” as “MODDA/0021/2324 to DA/0044/1112”. The “Determination” was recorded as “The application was determined on 23 October 2024 under delegated authority by refusal subject to the reasons listed below”. The Notice of Determination of the modification application gave nine reasons for refusal. The third reason for refusal was:

“Pursuant to section 4.47(4) of the Environmental Planning and Assessment Act 1979, Heritage NSW has not granted its general terms of approval to the proposed modification.”

11. Although the Heritage Council did inform the Council that it would not grant approval and hence would not provide general terms of approval, the Heritage Council was in error in doing so. The application made by Kenmore was not a development application seeking a new development consent for integrated development, but instead an application to modify the existing 2012 development consent. Accordingly, the consultation by the Council with the Heritage Council was not under s 4.47 of the EPA Act seeking the general terms of any approval that the Heritage Council, as an approval body, proposed to grant under the Heritage Act in relation to the integrated development, but instead under s 4.55(2)(b) of the EPA Act as to whether the Heritage Council, as an approval body, objected to the modification of the existing development consent that was proposed in the modification application under the EPA Act. The Heritage Council had no power to provide or refuse to provide general terms of approval when consulted under s 4.55(2)(b) of the EPA Act; all that the Heritage Council could do was object or not object to the modification of the development consent proposed in the modification application.

Right of appeal against the Council’s refusal of the modification application

12. The Council’s decision to refuse Kenmore’s modification application under s 4.55(2) of the EPA Act gave rise to a right of appeal under s 8.9 of the EPA Act. Under s 8.10(1) of the EPA Act, the time within which the appeal could be made was 6 months after the decision was notified or registered on the NSW Planning Portal. The date of refusal of the modification application was 23 October 2024, being the date of notification of the decision to Kenmore.

13. Kenmore did not appeal under s 8.9 of the EPA Act against the Council’s refusal of the modification application within 6 months of 23 October 2024 or at all.

Kenmore purports to appeal under s 70 of the Heritage Act

14. Instead, Kenmore has pursued a different course of action, purporting to appeal under s 70 of the Heritage Act. Section 70(1) provides:

“An applicant dissatisfied with a determination of the Heritage Council with respect to an application for approval, or application for modification of an approval, made under Subdivision 1 of Division 3, not being the determination of an application referred to in section 63 (2) or 65A (1) (b), may appeal to the Minister or, in the case of the determination of an application for approval, or application for modification of an approval, in respect of integrated development, to the Court—

(a) within 12 months after the date on which the applicant received notice of that determination,

(b) within 12 months after the expiration of the period of 40 days or the period of 60 days, as the case may require, referred to in section 65 (1), or

(c) within such longer period as the Minister or the Court may in special circumstances allow.”

15. Kenmore filed a Class 1 application on 4 September 2025 purporting to appeal under s 70 of the Heritage Act against the Heritage Council’s “refusal to grant terms of Integrated Development Application number HMS ID 6608 associated with the lodgement of MODDA/0021/2324 with Goulburn Mulwaree Council seeking modification of the Kenmore Masterplan (as approved under DA/0044/1112) to increase residential density at Lot 5 in DP 1078852, otherwise known as 191 Taralga Road, Goulburn.”

16. The reference to “Integrated Development Application number IMS ID 6608” is a reference to the Heritage Council’s internal reference number. The Heritage Council in its letter to the Council dated 5 September 2024 notifying of its refusal to grant terms of approval referred to “IDA application no: HMS ID 6608, received 22 April 2024.” As I have noted earlier, the Heritage Council was mistaken in believing the application was an “integrated development application” rather than a modification application. It was with this mistaken belief that the Heritage Council assigned an “IDA application no.” The Heritage Council’s application number differs from the application ID for the modification application of “MODDA/0021/2324”.

17. The orders that Kenmore sought in the Class 1 application are that:

“1. The appeal is upheld.

2. That Integrated Development Application number HMS ID 6608, associated with the lodgement of MODDA/0021/2324 with Goulburn Mulwaree Council seeking modification of the Kenmore Masterplan (as approved under DA/0044/1112) to increase residential density at Lot 5 in DP 1078852, otherwise known as 191 Taralga Road, Goulburn, is approved and terms of approval are issued.

3. Such further orders as the Court sees fit.”

18. Prayer for relief 2 is clearly mistaken. On an appeal under s 70 of the Heritage Act, the Court has no power to approve an integrated development application under the EPA Act. The Court is re-exercising a function of the Heritage Council under the Heritage Act and, by dint of s 39(2) of the Land and Environment Court Act 1979 (NSW) (Court Act), any other function or discretion which the Heritage Council had in respect of the matter the subject of the appeal. But none of these functions of the Heritage Council includes the function of approving an integrated development application under the EPA Act.

19. Kenmore conceded that prayer for relief 2 was mistaken and, in its solicitor’s submission to the Registrar, said that it “only seeks that the referral made to the Heritage Council of NSW, associated with the subject modification application, be approved and that Heritage Council of NSW issue general terms of approval.” This alternative relief is, however, also mistaken. There is no statutory function under the Heritage Act or the EPA Act to approve a “referral” by the Council as a consent authority to the Heritage Council as an approval body, regardless of whether such “referral” be under s 4.47 or s 4.55(2) of the EPA Act. As I will explain in a moment, there is also no power of the Court on an appeal under s 70 of the Heritage Act to order the Heritage Council to issue general terms of approval.

20. In these circumstances, on the face of the Class 1 application purporting to commence an appeal under s 70 of the Heritage Act, the appeal is incompetent. This is not simply a matter of the form in which the Class 1 application is drafted but is a matter of substance. This I will now explain.

The appeal is incompetent

21. No matter how the Class 1 application might be drafted, Kenmore does not have a right of appeal under s 70 of the Heritage Act and the Court does not have jurisdiction to determine Kenmore’s appeal. There are four reasons.

22. First, there is no “determination” with which Kenmore can be dissatisfied and against which Kenmore can appeal. The purported determination against which Kenmore seeks to appeal is identified as the Heritage Council’s “refusal to grant terms of approval”. That is not a determination under the Heritage Act against which an appeal under s 70 of the Heritage Act can be made. Under s 70(1), an applicant who is “dissatisfied with a determination of the Heritage Council” has two rights of appeal, one to the Minister and another to the Court. The appeal to the Minister is against “a determination of the Heritage Council with respect to an application for approval, or application for modification of an approval, made under Subdivision 1 of Division 3, not being the determination of an application referred to in section 63(3) or 65A(1)(b).” The appeal to the Court is against a determination of the Heritage Council “of an application for approval, or modification of an approval, in respect of integrated development.”

23. Kenmore accepts that the Heritage Council’s purported decision to refuse to grant terms of approval in relation to the non-existent integrated development application is not a determination with respect to an application that can be appealed to the Minister. But Kenmore contends that the Heritage Council’s purported decision to refuse to grant terms of approval was a “determination of an application for approval, or application for modification of an approval, in respect of integrated development”, which could be appealed to the Court. Kenmore is wrong.

24. Both appeals under s 70(1) of the Heritage Act, whether to the Minister or the Court, are against a determination of the Heritage Council with respect to an application for approval, or application for modification of an approval, under the Heritage Act, not under any other Act, including the EPA Act. Both the application for approval or modification of an approval, and the approval itself, must be made and granted under the Heritage Act. An application for approval under s 59 of the Heritage Act in respect of the doing or carrying out of an act, matter or thing referred to in s 57(1) of the Heritage Act, engages the power of the Heritage Council under s 63 of the Heritage Act to determine the application by the grant of approval. An application for modification of an approval granted under the Heritage Act engages the power of the Heritage Council under s 65A of the Heritage Act to determine the modification application by modifying the approval.

25. The relational phrase “in respect of integrated development” in the second limb of s 70(1) of the Heritage Act does not alter this requirement that both the application be made and the approval be granted under the Heritage Act. “Integrated development” is defined in s 56 of the Heritage Act to have the same meaning as it does in the EPA Act (the former s 91 and the current s 4.46(1)). This is: “Integrated development is development (not being State significant development or complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals.” One of the approvals listed is under s 58 of the Heritage Act: “approval in respect of the doing or carrying out of an act, matter or thing referred to in s 57(1)”. Section 4.46(4) of the EPA Act, however, provides that: “Development is not integrated development in respect of the approval required under section 57 of the if the approval that is required is the approval of a council.”

Appeal cannot be transformed to be appeal under the EPA Act

36. Kenmore did have a right of appeal under s 8.9 of the EPA Act against the Council’s refusal of its modification application. Such an appeal could have, indirectly, challenged the Heritage Council’s indication that it would not grant an approval under the Heritage Act in respect of the modified Masterplan. Unlike the Council which is the consent authority, the Court on an appeal from a decision of the Council that relates to integrated development: may determine the appeal whether or not the Council has obtained general terms of approval from each relevant approval body; is not bound to refuse the application for development consent because a relevant approval body has decided not to grant a relevant approval; or may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of a relevant approval body: see 8.14(4) of the EPA Act. Hence, if Kenmore had appealed under s 8.9 of the EPA Act, the Court would have had power to approve the modification application regardless of whether the Heritage Council advised that it will not grant an approval under the Heritage Act.

37. But Kenmore did not appeal under s 8.9 of the EPA Act and it is now out of time to appeal, as more than 6 months have elapsed after the Council notified Kenmore of its determination to refuse the modification application. The current appeal cannot therefore be transformed to be an appeal under s 8.9 of the EPA Act against the Council’s refusal of the modification application.

38. In these circumstances, Kenmore may need to lodge a further application to modify the 2012 development consent, or lodge a new development application, to carry out the development it now wishes to carry out on the site. If Kenmore is dissatisfied with the Council’s determination of those applications, it can appeal to the Court under s 8.9 or s 8.7 of the EPA Act respectively.

39. The Court orders:

(a) The proceedings are dismissed. (b) There be no order as to costs with the intention that each party pay their own costs of the proceedings.

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