Millers Point Community Assoc. Incorporated v Property NSW

Land and Environment Court (NSW)|2017-04-06|Before: Molesworth AJ

W (ABN 91 840 597 406) (First Respondent) New South Wales Land and Housing Corporation (Second Respondent) Minister for Heritage (Third Respondent) Representation: Counsel: Mr B McClintock SC with Mr S Prince (Applicant) Mr S J Free with Mr T J Boyle (First Respondent and Second Respondent)

Solicitors: Environmental Defender's Office (Applicant) Crown Solicitor's Office (Respondents) File Number(s): 2016/00322494 Publication restriction: N/A

A challenge to the validity of the Minister's decision not to list a building on the State Heritage Register

Millers Point Community Assoc. Incorporated ('the Applicant'), has challenged the decision by the Third Respondent, the Minister for Heritage ('the Minister'), of 30 July 2016 to not direct the listing of the Sirius Apartment Building ('Sirius') on the State Heritage Register ('the Register') pursuant to s 34(1)(a) of the Heritage Act 1977 ('Heritage Act'). The Applicant has brought this challenge under s 153 of the Heritage Act, which empowers any person to bring proceedings to remedy or restrain a breach of the Heritage Act. Property NSW ('the First Respondent') is the owner of the land on which Sirius is located (Lot 100 of Deposited Plan 264104) and the New South Wales Land and Housing Corporation ('the Second Respondent'), is the lessee and manager of Sirius.

Outcome of the appeal

I have decided that the Minister did fall into error by misdirecting himself as to the proper meaning of the words "…would cause undue financial hardship to the owner…" in section s 32(1)(d) of the Heritage Act (words which are also used in s 33(4)(c)). This error of law infected the Minister's decision, in exercising his function under s 34(1), not to direct the listing of Sirius on the Register.
I have also decided that the Minister did fail, in discharging the duty imposed upon him under s 34(1) of the Heritage Act, to make a tentative or preliminary determination as to whether Sirius is of State heritage significance, and, in so doing, failed to discharge his statutory duty according to law. The Minister was required to determine what the heritage significance of Sirius was in order to lawfully make a decision under s 34(1) in the particular circumstances of this case, where the Minister chose to make his decision pursuant to s 32(1). The Minister failed so to do.
Accordingly, I have decided to: 1. declare that the decision of the Minister made on 30 July 2016, to not direct the listing of Sirius on the Register is invalid and of no effect; 2. order that the Minister make a decision under s 34(1) of the Heritage Act according to law to either direct or not to direct the listing of Sirius on the Register; and 3. order that the First and Second Respondents pay the Applicant's costs.

Background

Sirius is located at 36-50 Cumberland Street, The Rocks. It occupies a prominent location on the upper reaches of The Rocks, proximate to the Sydney Harbour Bridge, and has views across Sydney Harbour's Circular Quay ferry channels, to the Sydney Opera House. The Heritage Council of New South Wales (the 'Heritage Council') has described Sirius as being distinctive for its "staggered form combining low rise and limited high rise elements" and "its use of off-form concrete, the stacking of box-like components and the use of roof terraces". Sirius was built by 1980 and has, until recently, been used for social housing. On 19 March 2014, the New South Wales Government announced its intention to sell Sirius and reinvest the proceeds into social housing.
Following the receipt of a nomination from the National Trust of Australia (NSW), the Heritage Council gave notice on 15 July 2015, in accordance with s 33(1) of the Heritage Act, that it intended to consider whether or not to recommend to the Minister that he direct the listing of Sirius on the Register. Between 15 July 2015 and 8 September 2015, the Heritage Council advertised and publicly exhibited a notice of intention to consider listing Sirius, which invited submissions to be made. Amongst other submissions, the Heritage Council received submissions from the First Respondent, as the owner of Sirius, and the Second Respondent, as the lessee of Sirius, who both strongly objected to the proposed listing on various grounds.
On 2 December 2015, the Heritage Council resolved to recommend to the Minister that he direct the listing of Sirius on the Register. The basis for this recommendation was the Heritage Council's assessment that Sirius meets two of the prescribed heritage criteria for listing an item on the Register (Exhibit B, p 75). The Heritage Council was satisfied that Sirius was of sufficient aesthetic and rarity value to warrant its listing. Consequently, the Heritage Council made its recommendation to the Minister on 14 March 2016.

The Minister's decision

The parties agreed that the Minister decided not to direct the listing of Sirius on the Register on 30 July 2016 ('the decision'). The Minister's reasons for the decision, which were made publicly available on the internet by the Heritage Council, were in the following terms: Sirius Apartment Building - 36 - 50 Cumberland Street The Rocks I, the Minister for Heritage, have considered the matters set out in section 32(1) of the Heritage Act 1977, including the recommendation of the Heritage Council to list the Sirius Apartment Building on the State Heritage Register. I have decided, on the following grounds, not to accept that recommendation: * I consider that the Building may meet the threshold of State heritage significance on aesthetic grounds, however note there are conflicting views as to whether as an example of Brutalist architecture it is of such merit as to be of State heritage significance. * I consider that the Building may be a rare product arising from a particular combination of historical circumstances, however as to one aspect of these circumstances I note that it is not the only example of the late Brutalist architectural style in social housing by its architect. * I consider that in this case whatever the heritage significance of the Building, even at its highest (including even if it reached a threshold for State heritage significance), this is outweighed by the undue financial hardship its listing would cause to its owners, by diminishing what would otherwise be its sale value (possibly by in the order of $70 million), which would potentially represent foregone funds for additional social housing. Signed Mark Speakman Minister for Heritage Dated: 30 July 2016
I interpose here to note that the parties, in response to a question from the Court, acknowledged that the Minister's decision, made on 30 July 2016, was made well after the prescribed 14 day limit for so doing (ending 14 days after the Heritage Council made its recommendation on 14 March 2016): s 34(1)(a) of the Heritage Act. The Respondents submitted that this failure to adhere to the statutory timeframe by the Minister did not give rise to any issue of significance in these proceedings because any such breach by the Minister would be insufficient to invalidate the decision. The Applicant agreed with this position. Whilst the Applicant did, in oral address, initially foreshadow that it might seek a declaration of breach from the Court, an application for such a declaration was not formally made, nor was the Applicant's expression of concern subsequently supported by further submissions. Hence, although adherence to statutory timeframes is clearly desirable, I simply note this delay.
Additionally, in a similar vein, counsel for the Respondents submitted that the Court ought not to be troubled by the fact that no document of the decision signed by the Minister (original or copy) was placed before the Court. This was said to be because no signed version of the decision exists (Transcript, p 10). Counsel for the Respondents informed the Court that the practice in relation to such decisions of the Minister "is that they're not signed reasons" because they are published on a publicly accessible online register. The only direct written evidence that the Minister made the decision appears to be the record of the decision on both the Heritage Council's and the Office of Environment and Heritage's Minutes to the Minister (recommending the listing). On both of these documents, handwritten annotations are apparent and are signed and dated 25 August 2016 and 24 August 2016 respectively (Exhibit A, pp 6 and 690).
With the only copy of the Minister's actual decision placed into evidence being an unsigned version (Court Book, page 34) printed on plain paper without letterhead or any other identifying features, thereby having more of the appearance of a post factum printed document, merely by way of observation and perhaps as an expression of disquiet, a practice where a Minister's decision cannot be evidenced by distinguishing features (such as a physically signed and dated document on an identifiable letterhead) could conceivably be vulnerable to error. I do not suggest that an error of that character arose in the case of the Sirius decision, rather I merely reflect on a practice capable of lacking veracity.

The legislative process for listing an item on the State Heritage Register

The Heritage Act is the principal statute that facilitates the identification, protection and conservation of places, buildings, works, relics, moveable objects and precincts that are of heritage significance to the State of New South Wales. This is reflected by the objects of the Heritage Act, set out under s 3, which are: (a) to promote an understanding of the State's heritage, (b) to encourage the conservation of the State's heritage, (c) to provide for the identification and registration of items of State heritage significance, (d) to provide for the interim protection of items of State heritage significance, (e) to encourage the adaptive reuse of items of State heritage significance, (f) to constitute the Heritage Council of New South Wales and confer on it functions relating to the State's heritage, (g) to assist owners with the conservation of items of State heritage significance.
Under the Heritage Act, an item - which is defined under s 4 to mean "a place, building, work, relic, moveable object or precinct" - may be of "State heritage significance" if its "historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value" is determined to be of "significance to the State": s 4A(1). The Heritage Act operates to conserve and protect items of State heritage significance in various ways: see Pts 3, 4, 6 and 7. In order to facilitate the realisation of the objects of the Heritage Act, Pt 3A provides for the listing of items of State heritage significance on the Register. The Heritage Council - which is a NSW Government agency constituted under s 7 of the Heritage Act - is charged with keeping the Register (s 31(1)) and items can only be listed on, or removed from, the Register at the direction of the Minister: s 31(2).
Whilst the Heritage Act provides that the Minister has the discretion to list an item on the Register, this discretion is only enlivened if the Heritage Council has recommended that an item be listed: s 32(1). Sections 32(2) and 21 confer on the Heritage Council the function of making recommendations to the Minister with respect to listing items on the Register. The request that ultimately leads to such a recommendation may come from the Minister, the owner of the item concerned, the local council of the area in which the item is situated, or arise on the Heritage Council's own initiative: s 32(2). However, before exercising the function of recommending that the Minister list an item on the Register, the Heritage Council must follow the procedure prescribed by s 33.
In summary, s 33(1) requires the Heritage Council to: give notice (to any affected owner or occupier and to the public) of its intention to consider whether or not to recommend the listing of an item; invite submissions on a potential listing; consider those submissions received; decide on whether or not to recommend a listing; and give notice - to any affected owner or occupier, submitters, local council, and to the public - of its decision.
In making a decision on whether or not to recommend a listing, the Heritage Council may consider: whether the long-term conservation of the item is necessary; whether the listing would render the item incapable of reasonable or economic use; and whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated: s 33(4).
When submissions are received on these topics pursuant to s 33(2), then by reason of s 33(1)(d) the Heritage Council is required to consider them. I note here that the Heritage Council, in making its Sirius recommendations, did not make any determination on any of the matters under s 33(4) - (Exhibit A, p 75) - despite the receipt of submissions addressing these matters.
The Heritage Council is prohibited, by dint of s 33(3)(a), from deciding to recommend a listing unless it considers that the item satisfies more than one of the criteria approved for determining whether the item is of State heritage significance (which are approved by the Minister pursuant to s 4A). Alternatively, if the Heritage Council considers that the item only satisfies one of the approved criteria, the Heritage Council may still decide to recommend the listing if it considers that "…the item is of such particular significance that it should be listed": s 33(3)(b).
If the Heritage Council makes a recommendation to the Minister that an item be listed on the Register, s 34(1) stipulates that the Minister must, within 14 days, "decide whether or not to direct the listing and inform the Heritage Council of that decision" or, alternatively, "request the Planning Assessment Commission to review the matter". However, the Minister "may direct the listing" of an item "that the Minister considers is of State heritage significance" on the Register only if, first, the Heritage Council has recommended that the item be listed and, secondly, the Minister has considered four matters specified in s 32(1). In its entirety, s 32(1) is in the following terms: 32 Minister can direct listing on State Heritage Register (1) The Minister may direct the listing on the State Heritage Register of a place, building, work, relic, moveable object or precinct that the Minister considers is of State heritage significance, but only if the Heritage Council has recommended that the item be listed and the Minister has considered the following: (a) the recommendation of the Heritage Council that the item should be listed, (b) whether the long-term conservation of the item is necessary, (c) whether the listing would render the item incapable of reasonable or economic use, (d) whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated.
It should be noted that the considerations in subs (1)(b), (1)(c) and (1)(d) of s 32 are identical to those in subs (4)(a), (4)(b) and (4)(c) of s 33 respectively. In the discussion in this judgment with respect to financial hardship, for convenience, I have, in some instances, chosen to refer simply to "owner" as a shorthand reference to "owner, mortgagee or lessee" as the words appear in ss 32, 33 and 34. Nevertheless, the collective reference is intended.
If the Minister decides, pursuant to s 34(1), to direct, or not to direct, the listing of an item on the Register (that the Heritage Council has recommended be listed), this decision "…is to contain the reasons for listing or not listing the item and is to be made publicly available on the internet by the Heritage Council within 7 days after the decision is made": s 34(4). Within 14 days after being notified of the Minister's decision, the Heritage Council must "give notice of the Minister's decision in the same manner as it is required under section 33(1)(a) to give notice of its intention to consider the listing": s 37(1).

The Applicant's claim that the Minister misconstrued section 32(1)(d) of the Heritage Act - the "undue financial hardship" issue

The Applicant's principal claim in these proceedings is that, in making the decision, the Minister made an error of law by misconstruing s 32(1)(d) of the Heritage Act and, therefore, constructively failed to exercise jurisdiction. The Applicant submitted that it is impossible to determine whether the Minister would have made the same ultimate decision but for misconstruing this sub-section: citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 384. The Applicant prefaced its submissions with respect to this claim by addressing the issue of whether the Minister was required to consider the factors in s 32(1) in making his decision.

The Applicant's argument that the Minister was required to consider the factors in s 32(1)

The Applicant contended that it would be erroneous to interpret s 32 of the Heritage Act to mean that the Minister must only consider the factors in s 32(1) if the Minister has decided to direct the listing of an item. Hence, the Applicant submitted that - despite the drafting of the chapeau to s 32(1) in ostensibly discretionary language (using the word 'may') - s 32(1) does not confer a pure discretion on the Minister that allows the Minister to not make any decision under s 32 of the Heritage Act. Rather, it was contended by the Applicant that the Minister was required to consider the factors in s 32(1) regardless of whether he ultimately decided to direct or not direct the listing of Sirius. The Applicant gave the following two reasons in support of its contention.
First, the Applicant contended that a construction of s 32(1) which would allow the Minister to ignore the factors in s 32(1) in deciding to not direct a listing would lead to "obvious and absurd results". In particular, the Applicant submitted that it would encourage the Minister to prejudge his or her decision because "the Minister would need to know the outcome of his decision making process before he embarked on that process to determine what he was required to consider…". It was argued that this would subvert the required legislative process that culminates in the Minister's decision to direct or not to direct the listing of the item on the Register.
Secondly, the Applicant asserted that "the nature, purpose and context of the provisions of s 32, particularly having regard to s 34, means that there was no discretion vested in the Minister to ignore the statutory factors identified in s 32(1)(a)-(d)": citing Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [38]. In respect of the context of s 32, the Applicant said that both the connection between s 32(1) and s 34(1)(a) and the overall structure of Pt 3A militated against any interpretation that the factors in s 32(1) are not mandatory considerations.
In any event, the Applicant submitted that once the Minister had purported to make a decision under - and did consider the matters set out in - s 32(1), the Minister was required to do so in accordance with the Heritage Act. As will become apparent later, the parties were in agreement on this point. The Minister, so the Applicant submitted, did not err because he considered the factors in s 32(1). However, on the Applicant's argument, he did err by misconstruing s 32(1)(d) and, therefore, in not properly taking into account this statutory matter: citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 40-41. This was said to be so even if, contrary to the Applicant's position, the relevant statutory power was non-compellable. In support of this, the Applicant cited the decisions of Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29 and Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33.

The Minister's allegedly erroneous interpretation of s 32(1)(d)

The Applicant claimed that the Minister misconstrued s 32(1)(d) in three ways. First, the Minister allegedly erred by omitting to consider the particular financial circumstances of the owner of Sirius in determining whether the listing would cause "undue financial hardship" to the owner. Secondly, the Minister allegedly erred by falling under the misapprehension that it was not necessary to consider the heritage significance of Sirius in making this determination. Thirdly, the Minister allegedly erred by interpreting the phrase "would cause undue financial hardship to the owner" in that sub-section to mean, in the Applicant's words, "mere reduction in value or potential profit from the sale of the Sirius Building and possible loss of monies for social housing to the New South Wales Government". To make good its claim, the Applicant first set out what it said was the proper interpretation of s 32(1)(d).

The Applicant's interpretation of s 32(1)(d)

The Applicant submitted that the proper construction of s 32(1)(d) requires "a balanced consideration of the financial impact [of listing the item on the Register] on the particular owner [of the item] taking into account the particular financial circumstances of that owner". Section 32(1)(d) was said to require the "assessment of the [financial] magnitude of the effect of the listing" against both the particular financial position of the owner and the relative heritage significance of the item. The Applicant advanced three main arguments in support of this interpretation of s 32(1)(d).
First, the Applicant emphasised the uncontroversial proposition that the task of interpreting the meaning of s 32(1)(d) "…must begin with a consideration of the text itself": quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. The Applicant argued that the text of s 32(1)(d) "clearly points to an evaluation of the financial effect of the heritage listing upon the financial circumstances of the particular relevant subject [here the owner] to ascertain whether that impact in those circumstances would impose 'undue financial hardship'". The Applicant said that the use of the words "undue" and "hardship" demands a qualitative assessment.
In particular, it was asserted that s 32(1)(d) requires "an assessment of the particular financial hardship on the owner in listing the item against the relative heritage significance of the item in question". In undertaking this assessment, the Applicant suggested that the degree to which the financial hardship caused to an owner would be "undue" depends on the heritage value of the item. Furthermore, the Applicant submitted that the phrase "undue financial hardship" constitutes a high threshold. In fact, the Applicant said that "hardship" "involves a state of affairs that impose upon the sufferer a burden which in his or her circumstances cannot be borne" and that the word "undue" normally refers to a situation involving injustice: citing, by analogy, Hewett v Court (1983) 149 CLR 639; [1983] HCA 7 at 664 and the consideration of "undue influence" in Union Bank of Australia Ltd v Whitelaw [1906] VLR 711 and Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41.
Secondly, the Applicant argued that its interpretation of s 32(1)(d) should be accepted because it reflects a "statutorily harmonious construction" of the Heritage Act. The Applicant said that s 32(1)(d) should be read harmoniously with s 32(1)(c). That is to say, the concept of "undue financial hardship" in s 32(1)(d) must be interpreted to be distinct from the concept of "reasonable or economic use" in s 32(1)(c). The Applicant submitted that it follows that s 32(1)(d) is concerned with "particular consequences suffered by a person (in their particular circumstances)" and does not permit the consideration of "whether a better economic value for the Building could be realised without the listing".
Moreover, the Applicant submitted that its construction of s 32(1)(d) is harmonious with the objects of the Heritage Act and the financial assistance provisions contained within ss 40, 45 and 105A, which were said to be designed to assist owners with the conservation of heritage items. In this context, the Applicant contended that the consideration of "undue financial hardship" may require the evaluation of "whether the listing would be likely to lead to a situation where the specified person would require financial assistance under the Act". Alternatively, the consideration may focus on avoiding "putting owners of potential listed items in a position where they would require the benefit of the financial assistance provisions".
Thirdly, the Applicant offered examples of the consideration of the phrase "undue financial hardship" from two other legal contexts in support of its interpretation of s 32(1)(d). The Applicant said that these examples confirm that an assessment of "undue financial hardship" requires a decision maker to adopt an evaluative balancing approach of ascertaining the "financial hardship imposed on a specified person by a specified event".
First, the Applicant referred to two cases concerning legislation that required "a landlord to establish that alternative accommodation could be obtained by a tenant prior to obtaining a Notice to Quit": Tremearne v Woolhouse [1958] VR 269 and Klvac v Weisbrem [1960] VR 170. With respect to the former decision, the Applicant submitted that Lowe J had accepted that the Magistrate responsible for issuing the Notice to Quit should examine the financial circumstances of the tenant, and assess rental market conditions, before determining that no undue financial hardship would be occasioned by issuing a notice: at 271-272. Similarly, the Applicant submitted that a determination that undue financial hardship would not be occasioned by a Notice to Quit in the latter case required an examination of the particular financial circumstances of the tenant and not just an assessment of the availability of other rental properties.
Second, the Applicant drew an analogy with the decision of Olofsson v Minister for Primary Industries (2011) 210 LGERA 375; [2011] NSWLEC 137. In that decision, the Applicant said that Pain J held that "whilst an order for costs would cause an Applicant 'significant financial hardship' on the basis it is 'likely to mean the loss of her only assets', an inability for the Respondents, as Ministers of the Crown, to recover their costs would not cause 'undue financial hardship'".
Finally, it should be noted that the Applicant accepted that the effect of its interpretation of s 32(1)(d) is that any "rich" or "resourceful" owner, lessee or mortgagee of an item cannot rely on the "undue financial hardship" matter for consideration to prevent the listing of that item. Yet, the Applicant conceded that it was open to the Minister to consider whether listing Sirius would cause the First Respondent and Second Respondent undue financial hardship. The Applicant only maintained that it was not open to the Minister "…to construe this term to include a potential loss of sale value for the building and the potential loss of additional social housing … particularly in circumstances where the owner and lessee is the NSW Government". Nevertheless, the Applicant dismissed any suggestion that the ramifications of its interpretation of s 32 for "rich" and "resourceful" owners was central to its claim.

The Minister's interpretation of "undue financial hardship"

The Applicant submitted that the terms of the Minister's reasons for decision show that the Minister misconstrued section 32(1)(d). More specifically, the Applicant said that this was evident in his "sole reason for rejecting the Heritage Council's recommendation": …whatever the heritage significance of the Building …, this is outweighed by the undue financial hardship its listing would cause to its owners, by diminishing what would otherwise be its sale value (possibly in the order of $70 million), which would potentially represent foregone funds for additional social housing.
The Applicant argued that this demonstrates that the Minister misdirected himself as to the proper meaning of s 32(1)(d) in the following inter-related ways.
First, the Applicant argued that the Minister's "sole reason" for his decision demonstrates that he failed to consider the particular financial circumstances of the owner of the item in determining that the listing would cause undue financial hardship to that owner. The Applicant submitted that it was not open to the Minister to conclude that undue financial hardship would be caused to the owner of Sirius without assessing the likely outcome of the listing on the financial position of the owner. In other words, the Applicant submitted that the Minister did not turn his mind to the necessary question of whether the listing would cause financial hardship to the relevant owner. In support of this, the Applicant noted that "[t]here was no reference, at all, by the Minister in his Statement of Reasons to the financial position of the owner, the State of New South Wales".
Secondly, the Applicant argued that the Minister's "sole reason" for his decision demonstrates that the Minister fell under the misapprehension that it was not necessary to consider the heritage significance of Sirius in determining whether "undue financial hardship" would be caused to the owner. The Applicant submitted that the Minister did not, in fact, consider the heritage significance of Sirius in determining whether the alleged financial hardship caused to the owner of Sirius would be "undue". The Applicant said that it is intrinsic to the word "undue" that the Minister was required to compare and balance any financial hardship caused with the determined heritage value of the item. That is to say, it was only possible for the Minister to determine that the particular financial hardship was "unwarranted or inappropriate" if the Minister knew specifically what end the listing would achieve (i.e. conserving an item of particular heritage value).
Thirdly, the Applicant contended that the Minister erred by interpreting the phrase "would cause undue financial hardship to the owner" in s 32(1)(d) to mean, in the Applicant's words, "mere reduction in value or potential profit from the sale of the Sirius Building and possible loss of monies for social housing to the New South Wales Government". The Applicant asserted that if an individual, non-government owner was to make a submission in similar terms, it "would not be contemplated". Indeed, the Applicant suggested that if the Minister's interpretation of s 32(1)(d) is legitimate, it could prevent the vast majority of buildings recommended for listing from being listed.
Moreover, the Minister's interpretation and application of s 32(1)(d) was said to be inconsistent with the objectives of the Heritage Act: s 3. The Heritage Act, so the Applicant submitted, encourages the conservation of the State's heritage and is not concerned with ensuring that property owners are able to obtain the highest market value for their property when they decide to sell. Hence, the Applicant submitted that "[t]he purpose of s 32(1)(d) cannot be that an item shouldn't be listed if, in the owner's opinion, the sale value of the item will be reduce (sic) if it is listed".
Additionally, the Applicant criticised the Minister's finding that the money generated from selling Sirius would potentially be used to provide additional social housing. The Applicant submitted that this assertion was unreliable because it is a discretionary political decision subject to change.
Finally, the Applicant drew attention to the Minister's reference in the reasons for decision to "owners". The Applicant submitted that if the Minister erroneously considered the position of the Second Respondent to be that of an owner (rather than properly considering the Second Respondent as the lessee) for the purposes of s 32, then the resulting decision would be infected by jurisdictional error. The decision would be predicated on a fundamental mistake of fact going to the applicable statutory criteria: citing SZRHL v Minister for Immigration and Citizenship (2013) 136 ALD 641; [2013] FCA 1093 at [18]-[25].
For these reasons, the Applicant submitted that the Minister failed to properly direct himself to the required questions under s 32(1)(d) of whether financial hardship would be caused to the First Respondent and/or Second Respondent in light of their particular financial circumstances and, if so, whether this hardship would be undue given those financial circumstances and the heritage significance of Sirius. Instead, according to the Applicant, the Minister directed himself to the wrong question of whether the financial impact of a reduction in the future market value of Sirius (caused by listing Sirius) was of a magnitude to make it unacceptable, regardless of the financial circumstances of the owner or the particular heritage significance of the item.

The Applicant's claim that the Minister failed to fulfil his obligation to determine the heritage significance of Sirius

The Applicant's second ground of challenge in these proceedings is that the Minister made an error of law by failing to determine whether, in his opinion, Sirius is of State heritage significance. The Applicant's claim depends on it making good the propositions that the Minister had such an obligation and that the Minister did, in fact, fail to fulfil this obligation.
The Applicant asserted that an obligation to determine whether Sirius is of State heritage significance was imposed on the Minister "by way of the chapeau of s 32(1) of the Heritage Act and the duty imposed by s 34(1) of that Act". The Applicant submitted that it is clear from the chapeau to s 32 that the Minister, when considering the function under s 32, must both consider and make a decision on the heritage significance of Sirius. Thus, the Minister was required to determine whether Sirius was of State heritage significance within the meaning of the Heritage Act. The Applicant conceded that the Minister's finding with respect to the heritage significance of the item need not dictate the decision to direct or not direct its listing. However, the Applicant contended that the Minister must form a final view on whether the item is of State heritage significance.
The Applicant rejected any suggestion that the Minister only has to form a final view as to the heritage significance of the item if he or she decides to direct the listing of the item. For the same reasons that the Applicant articulated as to why the factors in s 32(1) are mandatory relevant considerations regardless of the ultimate decision to direct or not to direct the listing of an item under s 34, the Applicant argued that such an interpretation of the Heritage Act would promote prejudgment and subvert the legislative process.
The Applicant submitted that the terms of the Minister's decision are sufficient to prove that the Minister did not fulfil his obligation to decide whether Sirius is of State heritage significance. Rather than reaching a final view, the Minister proceeded to make his decision not to direct the listing of Sirius "whatever the heritage significance of the Building…". The Applicant said that the use of the word "whatever" demonstrates a "…lack of consciousness necessary to reach the full scope of the statutory task required of the Minister as a decision-maker".

The Respondents' arguments in rebuttal of the claim that the Minister misconstrued section 32(1)(d) - the "undue financial hardship" issue

The Respondents' principal contention in these proceedings is that the Minister did not make any error of law in considering s 32(1)(d) of the Heritage Act and, therefore, in deciding not to direct the listing of Sirius on the Register pursuant to s 34(1)(a). The Respondents adopted a three-pronged approach in advancing this argument. The Respondents: set out what they said was the proper interpretation of s 32(1)(d); criticised the Applicant's construction of s 32(1)(d); and justified why the Minister's decision accorded with their (proper) interpretation. However, the Respondents commenced their submissions by responding to the Applicant's assertion that the Minister was required to consider the factors in s 32(1).

The Respondents' argument that the Minister was not required to consider the factors in s 32(1)

The Respondents rejected the Applicant's claim that the Minister was required, in deciding not to direct the listing of Sirius on the Register, to consider the factors in s 32(1). Rather, the Respondents submitted that the factors in s 32(1) are not, in terms, matters that must be considered in all cases where the Minister's duty under s 34(1) is enlivened. The Respondents did concede that the factors in s 32(1) constitute mandatory relevant matters which must be considered before the Minister can validly direct the listing of an item on the Register. However, in contrast, the Respondents submitted that the Minister can "validly decide not to direct the listing of a particular item without having to consider all of the matters specified in s 32(1)(a)-(d)". Nevertheless, the Respondents accepted that, because the Minister did in fact consider s 32 in making his decision not to direct the listing of Sirius, he was bound to do so lawfully (Transcript, pp 23-24).

The Respondents' interpretation of s 32(1)(d)

The Respondents contended that it is a valid interpretation of s 32(1)(d) for the Minister to consider whether the listing of an item will cause "financial hardship to the owner simply by reason of the significant reduction in the value of that property". The respondents repeatedly submitted that the meaning of financial hardship includes financial loss or financial detriment, such that a financial loss of a certain magnitude will constitute financial hardship. At the hearing, the respondents stated "We say financial hardship is loss" (Transcript, p 28) and reasoned that "…if it is a consequence of being put on the register, listed on the register, that your property becomes much less valuable than it was before it was placed on the register, we would say, on any ordinary understanding of the term, the listing has caused the owner of the property to suffer a financial hardship." (Transcript, pp 31-32). Moreover, it is, so the Respondents submitted, open to a Minister to find that such a reduction in value will cause financial hardship to an owner in circumstances where the owner "may not be reduced to poverty and may be capable of enduring that hardship because of other resources available to the owner".
Whether or not the Minister finds that this financial hardship is "undue" will depend on whether, "taking into account the magnitude of that reduction in value and the considerations that might otherwise justify listing the item", it is considered by the Minister to be "not appropriate, unjustified, going beyond what is warranted in the circumstances, excessive …". The Respondents conceded that the determination of whether the hardship is undue requires the balancing of the hardship against the heritage values of the item considered for listing. In the Respondents' words "We accept there's relativities involved in the notion of undue. What the relativities are are between the heritage values that would be protected by listing as compared with the financial hardship" (Transcript, p 31). The Respondents justified their interpretation of s 32(1)(d) in the following way.
First, the Respondents submitted that the words "undue financial hardship" should be construed having regard to the statutory context in which they appear, including the relevant legislative history and extrinsic materials: citing Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]. The Respondents asserted that the statutory context of s 32(1)(d) supports an interpretation of "undue financial hardship" that gives these words, either individually or in combination, their ordinary natural meaning. Thus, the Respondents, quoting the Oxford English Dictionary, noted the definitions of "undue" (as including "Not appropriate or suitable; improper …; Not in accordance with what is just and right; unjustifiable; illegal; Going beyond what is appropriate, warranted, or natural; excessive"); "financial" (meaning "Of, pertaining, or relating to finance or money matters"; and "hardship" (meaning "… the quality of being hard (in various senses); difficulty; Something which is hard to bear; … a harsh, adverse, or harassing circumstance; a difficulty, esp. in respect of one's ability to live comfortably; a privation"). The Respondents submitted that the ordinary and natural meaning of "undue financial hardship" is consistent with their interpretation of s 32(1)(d).
Secondly, the Respondents submitted that their approach to the construction of s 32(1)(d) accords with the Second Reading Speech for the amending Act which introduced s 32 in its current form: Heritage Amendment Act 2009. In that Second Reading Speech, the then Minister for Planning said: Currently, in order to list an item on the State Heritage Register the Minister needs to be satisfied that the item is of State heritage significance, following a recommendation by the Heritage Council. This approach ignores a range of other important issues that have a bearing on the conservation of an item. As well as considering whether an item is of State heritage significance, the Minister will be required to consider a range of broader planning and economic issues. These issues include a recommendation from the Heritage Council about whether the item should be listed, whether the long-term conservation of the item is necessary, whether the listing would render the item incapable of reasonable or economic use, and whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated. These additional criteria that the Minister will be required to consider will ensure that appropriate balance is achieved between conservation of the State's heritage, the rights of landowners and the costs of heritage conservation. I am very well aware of how important these considerations will be … (New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 13 May 2009 at 15257).
Thirdly, the Respondents submitted that their interpretation of s 32(1)(d) (and, in particular, the words "undue financial hardship") is supported by relevant case law concerning analogous statutory contexts (the Respondents recognised, however, the need for caution in adopting such an approach). In the procedural law decisions of Packer v Police (2007) 247 LSJS 410; [2007] SASC 98 at [22] and New South Wales v Austeel Pty Ltd [2004] NSWSC 81 at [22], the courts relied upon dictionary definitions to assist in determining the meaning of "undue hardship". The Respondents next drew attention to Lord Denning's interpretation of "undue hardship", in the context of an extension of time provision, as meaning "greater hardship than the circumstances warrant … it is an undue hardship on him if the consequences are out of proportion to his fault": quoting Liberian Shipping Corp "Pegasus" v A King & Sons Ltd [1967] 2 QB 86 at 98. The Respondents also referred to the consideration of "hardship" and/or "undue hardship" in the decisions of FG O'Brien Ltd v Elliot [1965] NSWR 1473 at 1475; Re Wilson and Minister for Territories (1985) 3 AAR 60 at 228 and Hayes v Peterson [1972] Tas SR 86 at 88.
In contrast to its interpretation of "undue financial hardship" in s 32(1)(d), the Respondents acknowledged that the courts, in some statutory contexts (particularly "in statutory regimes where a particular consequence or rule is imposed as a matter of general application, but dispensation is allowed in circumstances of 'hardship'"), have held that a determination of hardship will require "an assessment of the state of impecuniosity of a person": citing Powell v Evreniades (1989) 21 FCR 252 at 258 and Re Kabalan (1993) 40 FCR 560. Yet, the Respondents argued that s 32(1)(d) is not expressed in terms that have this effect. More specifically, the Respondents submitted that s 32(1)(d) is not expressed so as to focus on the possible "resulting condition of the owner, mortgagee or lessee after the listing (as it might have been if the subsection read 'would cause the owner to be left in a state of financial hardship')". Instead, the Respondents said that s 32(1)(d) is drafted so as to focus upon "the thing which is done 'to' that person" by the listing. The question is whether that 'thing' is "a deprivation, a harsh, adverse, hard or harassing circumstance".

The Respondents' criticism of the Applicant's interpretation of s 32(1)(d)

The Respondents criticised the Applicant's interpretation of s 32(1)(d) on three bases. First, the Respondents challenged the Applicant's "constrained" interpretation of the words "undue financial hardship" on the grounds that it does not accord with their ordinary natural meaning. That is to say, the Respondents rejected the claim that s 32(1)(d) only permits the Minister to assess "undue financial hardship" by way of determining whether the listing of Sirius will "leave the owner of the property in a state of financial hardship or impecuniosity". The Respondents argued that the Applicant's attempt to impose such a "gloss on the statutory language" of s 32(1)(d) - so as to read "whether listing would cause the owner, mortgagee or lessee to be left in a state of undue financial hardship" - should be rejected because it is not supported by the text, context or purpose of the provision.
In particular, the Respondents criticised the Applicant's argument that there is a textual or contextual link between s 32(1)(d) and those sections in the Heritage Act which allows limited financial assistance to be provided to owners of heritage items to assist with heritage conservation. The Respondents countered that no such link exists and that the provisions concern separate subject matters. Rather than facilitating a "harmonious" operation of the Heritage Act, the Respondents said that such a connection would be "illogical" and "make a nonsense of s 32(1)(d)". Any logical connection would mean, contrary to the Applicant's position, that those who qualify for financial assistance are precluded from suffering undue financial hardship.
Secondly, the Respondents submitted that the Applicant's interpretation of s 32(1)(d) should be rejected because it would give the Heritage Act "a curious and unpredictable operation" that "would lead to capricious consequences". The Respondents argued that the logical consequence of the Applicant's interpretation of s 32(1)(d) is that a person who happens to be rich at the time of the Minister's decision, to direct or not to direct the listing of an item, is either incapable of suffering, or unlikely to suffer, "undue financial hardship". The Respondents submitted that, on this approach, the Minister would effectively be precluded from determining that undue financial hardship would be caused to the State or Commonwealth when assessed by reference to their existing (and potentially future) financial resources. Similarly, the Respondents suggested that the same would apply to the consideration of any ordinary mortgagee (that is to say, a significant bank or financial institution).
Thus, the Respondents contended that it is inescapable that the Applicant's interpretation of s 32(1)(d) would make the process of listing items on the Register depend significantly on the "accidental circumstance of who the owner, mortgagee or lessee of the item in question happens to be, and how resourceful they happen to be at the time that the Minister comes to consider exercising the power under s 32(1)". The Respondents submitted, therefore, that the Applicant's interpretation, "with the capricious results and inherent inequality of application that this involves", should be rejected: citing Lazarus v Independent Commission Against Corruption (2017) 317 FLR 164; [2017] NSWCA 37 at [100].
Furthermore, the Respondents submitted that the Applicant's construction of s 32(1)(d) would present practical problems to the operation of the Heritage Act. In particular, the Respondents asserted that it would require the Minister to have the necessary information to understand the financial circumstances of an owner, lessee or mortgagee. Yet, the Heritage Act, so the Respondents submitted, provides no mechanism to ensure that such information will be available to the Minister to enable such an inquiry. Conversely, the Respondents said that s 33(4)(c) empowers the Heritage Council to consider the issue of undue financial hardship when no relevant submissions are made. The Respondents said that the provision for the Heritage Council to consider the matter of undue financial hardship without the benefit of any relevant financial information supports their interpretation of s 32(1)(d).
Thirdly, the Respondents argued that the Applicant's reliance on the case law that it cited was misplaced and that these decisions could not assist in determining the proper meaning of s 32(1)(d). The Respondents contended that the Applicant's reliance on Tremearne v Woolhouse and Klvac v Weisbrem was misplaced because these decisions were concerned with statutory contexts that are not relevantly comparable. The Respondents said that s 32(1)(d) is not comparable to the relevant section considered in the former decision because s 32(1)(d) does not explicitly require consideration of "the financial circumstances of the lessee". The Respondents also dismissed the decision of Olofsson v Minister for Primary Industries, which was said to not be concerned with statutory interpretation, as being of no assistance in understanding the meaning of s 32(1)(d). Finally, the Respondents also criticised the Applicant's reliance on decisions concerning the phrase "undue influence" on the basis that this phrase "has developed a special meaning in the law, connoting impropriety, unconscionability or injustice in the context of a particular relationship between people".

The Respondents' claim that the Minister's consideration of s 32(1)(d) was not infected by any error of law

The Respondents acknowledged that it appears from the Minister's reasons for decision that the primary reason for the decision was the Minister's finding that the listing of Sirius would cause undue financial hardship to its "owners". Although the Minister referred to the "owners" of Sirius, the Respondents said that this was nothing more than an accidental slip by which the Minister had meant the owner, the First Respondent, and the Second Respondent, "whose financial interests in the matter would be directly affected". The Respondents denied the Applicant's allegation that this evidenced any misunderstanding of the position of a lessee under the Heritage Act. The Minister was said to have identified this hardship as the diminution in the sale value of the property "(possibly by in the order of $70 million)". Further, the Minister noted that this would "potentially represent foregone funds for additional social housing".
The Respondents argued that the Minister, on their interpretation of s 32(1)(d), made no error of law in making his decision for the reasons that he provided. On the contrary, the Minister, according to the Respondents, adopted the following legitimate approach to interpreting and considering s 32(1)(d): The Minister plainly directed his mind to the hardship that would be caused to the owner because of the diminution in sale price. The Minister's additional observation about the loss of funds for additional social housing demonstrates that the Minister also recognised that [the First and Second Respondents] were in a special position because the sale proceeds were earmarked for additional social housing by [the Second Respondent]. Noting the potential financial impact on social housing expenditure was one way of measuring, in the case of this particular ownership arrangement, the extent of the hardship caused to the owner by the listing.
Perhaps most importantly, the Respondents emphasised that it was within the ambit of s 32(1)(d) for the Minister to consider the matter of "undue financial hardship" by assessing the magnitude or scale of the financial loss that the Respondents would likely suffer and assessing whether this loss "constituted a hardship or detriment that was undue or unwarranted".

The Respondents' rebuttal of the claim that the Minister failed to fulfil his obligation to determine the heritage significance of Sirius

The Respondents' rebuttal of the Applicant's second ground of challenge to the Minister's decision was advanced on two fronts. First, the Respondents denied that the Minister had any obligation under s 32 to make a decision concerning the heritage significance of Sirius before deciding not to direct the listing of the item. Secondly, the Respondents argued that, in any event, the Minister did not fail to consider the heritage significance of Sirius.
In respect of the first contention, the Respondents submitted that the Applicant's assertion that the Minister was required to make a decision under s 32 as to the heritage significance of Sirius, before deciding not to direct its listing, is erroneous. The Respondents submitted that s 32(1), at its highest, only imposes a precondition that the Minister determine an item to be of State heritage significance before the Minister directs that the item be listed. In contrast, the Respondents said that there is no such precondition that the Minister reaches a concluded view as to the heritage significance of an item that the Minister decides not to direct be listed. Rather, "the Minister may make a decision not to direct the listing of an item whether or not the item is of State heritage significance".
In respect of the second contention, the Respondents submitted that the Minister did not fail to consider whether Sirius is of State heritage significance. In explaining his reasons for the decision, the Minister considered that Sirius "may" meet the threshold of State heritage significance for its aesthetic and/or rarity values. In so doing, the Minister recognised that there were conflicting views as to the aesthetic and rarity significance of Sirius. The Minister then proceeded, according to the Respondents, to consider "the critical discretionary factor of undue financial hardship" on the assumption that Sirius was of State heritage significance. Therefore, the Respondents claimed that the Minister did, in effect, make a determination as to the State heritage significance of Sirius for the purposes of his reasoning. In the words of the Respondents, "[h]e had regard to the question of State heritage significance and made his discretionary decision by reference to the favourable assumption that the item was of State heritage significance".

Supplementary submissions

At the conclusion of the hearing of this matter, the Court granted leave to the Applicant and the Respondents to file brief additional written submissions on materials identified at the hearing by the Court as being of potential relevance to the issues for determination. These materials were referred to because no reference was made to the consideration of the meaning of the phrase "undue financial hardship" in the context of heritage legislation. The Court had noted that there had been an examination of that phrase in a heritage context at a non-judicial level both in New South Wales and interstate. These materials comprised: 1. Robert Freestone, "Heritage Decisions by New South Wales Commissions of Inquiry 1980-1990" (1994) 11 Environmental and Planning Law Journal 479; 2. Commissioner Gilpin, An Inquiry pursuant to Section 41 of the Heritage Act 1977 into objections to the making of a Permanent Conservation Order in respect of the buildings and site known as 43 Pitt Street, Redfern, (August 1984); 3. Deputy Chairman Simpson, An Inquiry under the Heritage Act 1977 into the Regent Theatre George Street, Sydney, (November 1986); 4. Commissioner O'Connell, An Inquiry pursuant to Section 29B of the Heritage Act 1977 into objections to the making of an Interim Conservation Order in respect of the buildings known as 5-15 Mount Street, Pyrmont, (May 1989); 5. Heritage Council of Victoria, Camperdown Botanic Gardens and Arboretum P24319 [2016] VHerCI 6 (4 August 2016); and 6. Heritage Council of Victoria, Winter Park Cluster Housing P20276 [2013] VHerCI 7 (14 September 2013).

Supplementary submissions of the Respondents

The Respondents submitted that the Court would not be assisted by any of the materials for three primary reasons. First, the Respondents argued that the Court is not required nor permitted to consider the decisions of administrative decision makers or the articles of academic commentators concerning particular words from other statutory contexts "as a guide to the legislature's intended meaning" of words used in the Heritage Act. As non-judicial decisions, the Respondents submitted that the materials "carry no weight in terms of resolving the legal question of the proper meaning of the Heritage Act". Indeed, the Respondents emphasised that even the meaning of particular words which have been subject to prior judicial consideration will only assist in determining the legislature's intended meaning in particular circumstances: citing Williams v Official Assignee of Dunn (1908) 6 CLR 425; [1908] HCA 27; MacKay v Davies (1904) 1 CLR 483; [1904] HCA 20 at 491; Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159; [1952] HCA 4 at 174 and 182. Thus, the Respondents asserted that it would be immaterial and irrelevant if the materials indicated a prevailing practice that the phrase "undue financial hardship" had been interpreted in a particular way.
Secondly, the Respondents submitted that, in any event, the materials do not demonstrate any prevailing practice as to the interpretation of the phrase "undue financial hardship". On the one hand, the Respondents said that relevant extracts of the article of Dr Freestone, the Inquiry Report of Commissioner Gilpin and the decision of Winter Park Cluster Housing were consistent with their interpretation of the meaning of "undue financial hardship". On the other hand, the Respondents acknowledged that the other materials, so far as they are relevant, did not support their interpretation. Thus, the materials were said to be equivocal, rather than demonstrating a prevailing practice of interpretation.
Moreover, in respect to the Inquiry Reports and the decision that the Respondents acknowledged as not supporting its interpretation of the phrase "undue financial hardship", the Respondents said that they were of no assistance. For example, in relation to the Inquiry Report of Commissioner O'Connell, the Respondents asserted that the approach taken by the Commissioner was not justified with reasons and contained no relevant analysis. Similarly, the Respondents said that the Inquiry Report of Deputy Chairman Simpson contained no analysis to support the conclusion that an objector seeking to demonstrate undue financial hardship "must be able to establish that conservation would have a severe effect on its total financial position".
Thirdly, the Respondents submitted that (whilst conceding that the materials could theoretically assist the Court in assessing the competing arguments concerning the proper interpretation of the Heritage Act) the materials provided no "analytical enlightenment" or helpful guidance as to how the Court should construe the relevant provisions of the Heritage Act. In so far as the materials contained views as to how to construe the meaning of "undue financial hardship", the Respondents stated that "these views are not authoritative and there is no associated analysis that might assist the Court". Ultimately, the Respondents submitted that, at most, the materials demonstrate that their authors "assumed that the words ["undue financial hardship"] had a particular meaning, or reached that conclusion based on abbreviated analysis that does not advance the debate".

Supplementary submissions of the Applicant

The Applicant submitted that the New South Wales Inquiry Reports are of assistance to the Court. The Applicant reasoned that the analysis in these reports of the phrase "undue financial hardship", albeit in provisions of an earlier iteration of the Heritage Act, is of assistance in construing that same phrase as it was subsequently added to s 32(1)(d) of the Heritage Act. More specifically, the Applicant submitted that these materials provide a correct analysis of "what is necessary to ascertain whether a heritage listing would 'cause undue financial hardship' to the owner".
Moreover, the Applicant suggested that the Inquiry Reports may constitute extrinsic materials for the purposes of s 34(1) of the Interpretation Act 1987 ('Interpretation Act'). Although conceding that the materials do not directly fall within the scope of s 34(2)(b) of the Interpretation Act, the Applicant submitted that the materials - as publicly accessible materials produced by the Executive for the Minister for Heritage - could be considered "to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision": s 34(1)(a) of the Interpretation Act.
Finally, the Applicant submitted that these materials may assist the Court in identifying the mischief to which s 32(1)(d) of the Heritage Act was directed when inserted. The Applicant said that the Inquiry Reports provide part of the context of s 32 and part of the relevant history and framework of the operation of the legislation prior to the insertion of s 32(1)(d): citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at 408.
Ultimately, however, the Applicant only advanced the New South Wales materials to confirm the natural and ordinary meaning of s 32(1)(d). The Applicant submitted that these materials confirm the Applicant's claim that "the ordinary meaning of the word 'hardship' cannot exist in a vacuum divorced from the particular financial circumstances of the person upon whom the effect of the listing is to be considered". The Applicant asserted that these materials show that the word "hardship" requires a comparative assessment of the financial circumstances of the owner before and after the listing. Moreover, it was said by the Applicant that these materials demonstrate that, contrary to the submissions of the Respondents, its interpretation of s 32(1)(d) would not lead to absurd results. In support of this position, the Applicant made the following submissions with respect to each inquiry report.
First, the Applicant relied upon the following passage from the Inquiry Report of Deputy Chairman Simpson in support of its interpretation of s 32(1)(d): 'Hardship' is defined in the Shorter Oxford Dictionary to mean, inter alia, 'severe toil or suffering or extreme privation'. Consequently, in my opinion, an owner must be able to establish that conservation would have a severe effect on its total financial position. It must claim and establish financial hardship to succeed by way of objection under s 41(d) [of the Heritage Act]. In determining if 'financial hardship' would result from conservation it is in my view necessary to compare an owner's existing financial position against the financial position which would exist if a conservation order was made. Whether conservation of a property will result in financial hardship will depend on the facts of each case.
Secondly, the Applicant submitted that the Inquiry Report of Commissioner O'Connell indicates that for a decision maker to properly consider whether 'undue financial hardship' will be caused, it will be necessary for an owner to proffer evidence as to its financial affairs and for the size or scale of the owner to be considered. The Applicant argued that this accords with its interpretation of s 32(1)(d).
Finally, with respect to the Inquiry Report of Commissioner Gilpin, the Applicant submitted that the Commissioner's approach of considering "the particular effect on the particular owner in question by reference to their particular financial circumstances" supports its interpretation of the ordinary meaning of s 32(1)(d).

The Minister's decision-making pathways

The receipt by the Minister of a Heritage Council recommendation for listing triggers a process under s 34(1) which the Minister must follow (unless the Minister requests the Planning Assessment Commission to review the matter). The Minister must: 1. decide whether or not to direct the listing; 2. inform the Heritage Council of that decision; and 3. take those two steps within 14 days of receiving the Heritage Council recommendation.
There are two alternative decision-making paths available to the Minister once the Minister receives a Heritage Council recommendation for listing: (1) the path ("the first path") to be followed if the intended decision is to direct the listing; or (2) the path ("the second path") to be followed if the intended decision is not to direct the listing. I use the words "intended decision" with caution, as at some point in the process the Minister must, effectively, make a preliminary decision before completing the decision-making process required of him. The difficulty involved in ascertaining the proper decision-making process under s 34(1) led the Applicant to describe the process set out above as necessarily involving prejudgment, with the Minister said be required to make a decision before completing the prerequisite steps for making his or her formal or ultimate decision.
This case involves an instance of the second path - the Minister decided not to direct the listing of Sirius. However, it is instructive, indeed necessary, to examine the second path in the context of the first path in order to properly understand the relevant procedures and considerations prescribed by the Heritage Act. This is especially pertinent as the Minister chose, in part, to follow the first path by taking into account one of the s 32(1) considerations, specifically: "whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item …" The Minister's decision so to do was explicitly stated in the introductory statement to the Minister's reasons for decision.

The first path - s 32(1) - A decision to direct a listing

A decision by the Minister to direct a listing - being the first path - can only occur if the requirements of s 32(1) are met. Those requirements are that: (1) there be a Heritage Council recommendation that an item be listed; and (2) the Minister has considered four matters, being those identified in limbs (a), (b), (c) and (d) of s 32(1). Limb (a) requires the consideration of the recommendation of the Heritage Council which, by virtue of the chapeau to s 32(1), must have already been received by the Minister in order to "kick off" the procedure to be followed. As has been set out above, limb (d) requires the consideration of "undue financial hardship", which is the key focus of this judgment.
There is also a precondition contained within the chapeau to s 32(1): that the Minister considers that the place, building, work, relic, moveable object or precinct recommended for listing is of State heritage significance. (Although the word "building" is the preferred shorthand version that I have adopted for this judgment, as per the terms of s 32, for "building" read "place, building, work, relic, moveable object or precinct"). Counsel for the parties agreed that this precondition is mandatory for the Minister to meet the requirements of the Heritage Act when he or she directs the listing of a building. So the first path involves a preliminary finding by the Minister: that he or she considers the building to be of State heritage significance. In other words, if the Minister is minded to direct the listing of the building, s 32 is enlivened and a condition precedent to the Minister's decision to direct the listing arises. This condition precedent is that the Minister must decide that the place is of State heritage significance.
So with this first path - where s 32 is enlivened - the Heritage Act adopts a two-step approach. First, the Minister has a relatively unfettered discretion to decide, in response to a recommendation, whether he or she is minded to pursue the listing of a building. If so, two requirements under s 32 are enlivened: (1) the requirement to reach a concluded view that the building is of State heritage significance and (2) the requirement to consider the matters in s 32(1). (In this regard, the Minister may seek assistance by requesting the Planning Assessment Commission to review the matter - s 34(1)(b)).
In complying with these requirements, it is open to the Minister to reach an ultimate decision to either direct or not to direct the listing. There is no flaw in the process if the Minister concludes that, contrary to his initial or preliminary decision, the new considerations reveal that the building ought not be listed. Moreover, the Minister is not permitted to abrogate his or her responsibility to properly consider the s 32(1) matters on the basis that he has already effectively decided to list the building. It would not be a genuine and proper consideration of the mandatory relevant matters if the preliminary decision dictated the final decision such that the exercise under s 32 was effectively a charade.

The Applicant's fusion of the s 34(1) duty with the s 32(1) requirements

One critical component of the Applicant's case was that, in making his decision under s 34(1) not to direct the listing of Sirius, the Minister was nevertheless obliged to consider and then determine whether Sirius was of State heritage significance. When submitting that the Minister failed so to do, the Applicant cast its argument both by reference to the chapeau of s 32(1) and, importantly in my opinion, "the duty imposed by s 34(1)". Casting the Minister's failure in terms of s 34(1) was important as, in my opinion, the Minister did fail - under both s 34(1) and, concurrently, s 32(1) - to consider and determine the heritage significance of Sirius. With respect to the latter failure, this arose because the Minister elected to consider s 32(1) in carrying out his task.
In the present case, as the Minister decided not to direct the listing of Sirius pursuant to s 34(1), it would, prima facie, seem that the path under s 32(1) was not required to be followed. I am of the opinion that, in the normal course, the four matters to be considered under s 32(1) are not required to be considered pursuant to that section when the Minister is acting in accordance with s 34(1) and is of the mind to not direct the listing of a building and then, after completing the required steps, decides not to direct the listing of that place. However, it is a live question whether those same four matters were required to be considered pursuant to an alternative path. A close analysis of the s 34(1) process provides the answer.

The Minister chose to fuse the pathways

Before examining the s 34(1) process, I emphasise that this is not a case where the "normal course" applies, because, putting to one side the question of whether the Minister was required to consider the content of the matters of s 32(1) via another pathway, the Minister chose to consider the four matters listed in s 32(1). The critical and revealing introductory words of the Minister in his decision of 30 July 2016 were as follows: "I, the Minister for Heritage, have considered the matters set out in section 32(1) of the Heritage Act 1977, including the recommendation of the Heritage Council to list the Sirius Apartment Building on the State Heritage Register" (emphasis added).
The parties agreed that because the Minister chose to consider the four matters under s 32(1), he was thereupon obliged to act in accordance with the law - that is, the Minister had to consider s 32 in accordance with the Heritage Act. I agree that this is correct. Consequently, if I find that the Minister failed to act in accordance with the law in this respect, then the Applicant would have made out its case whether or not the Minister was required to follow the s 32(1) pathway in the first place.

The second path - s 34(1) - a decision not to direct a listing

As set out above, a decision by the Minister, pursuant to s 34(1), not to direct a listing triggers the requirements of s 34(4) that (paraphrased): 1. the Minister provides a decision which contains reasons; 2. the decision is made publicly available on the internet by the Heritage Council; and 3. the publication of the decision on the internet is to occur within 7 days of the decision being made.
It was agreed by both parties that the Minister's decision was published on the internet on the same day as the decision, 30 July 2016, thereby complying with the publication time requirement in s 34(4) (Statement of Agreed Facts, paragraph 13).
Section 34(1)(a) does not set out the considerations that are required to be taken into account by the Minister in deciding not to direct the listing of a building, nor does it set out any parameters within which such a decision is to be made (in contrast to the first path, where s 32(1) prescriptively sets out the steps which must be followed if the Minister's decision is to direct the listing of a building).
However, as the Minister's decision is triggered by the receipt of a recommendation by the Heritage Council, it logically follows that the Minister's decision under 34(1), whatever that decision is to be, must be referrable to that Heritage Council recommendation. The Heritage Act makes it clear that the consideration of that recommendation is an implied mandatory relevant consideration. The word "receipt" is here used for convenience, however, the operative words in s 34(1) are "makes a recommendation for listing to the Minister".
As the Minister's decision is necessarily a response to the Heritage Council recommendation, logically the Minister must be required to consider it, otherwise the Minister would be failing in the very function required under s 34(1). To interpret the provision otherwise would render the provision nugatory. In contrast, although the first path explicitly requires the recommendation to be considered by dint of s 32, the absence of similar words in s 34(1) is of no significance, as a sensible procedure must be assumed. The alternative of the Minister simply receiving the Heritage Council recommendation but not opening it, not looking at it and so not considering it, would be farcical. As counsel for the Respondents put it, agreeing with the Court, "it would be purely formalistic" (Transcript, page 25, line 6). The Minister does not make the decision under s 34(1) in a vacuum, devoid of contextual circumstances. The pivotal and primary contextual circumstance is the consideration of the Heritage Council's recommendation. When the Court put this proposition to counsel for the parties, counsel for the Applicant agreed that that approach to the provision must be correct (Transcript, page 19, lines 20-45) - and counsel for the Respondents also agreed (Transcript pages 24-25, lines 48-25). In the case of the Minister's Sirius decision, the reasons for decision confirm that he did in fact consider the Heritage Council's recommendation.
I will now turn to analyse what it is that would constitute the Heritage Council recommendation that the Minister is required to consider under s 34(1). The process leading to the formulation of the Heritage Council recommendation must accord with the procedure set out in s 33, as the words in the chapeau to s 33(1) state "the Heritage Council must follow this procedure". Therefore, the Heritage Council's recommendation will follow: first, the mandatory exercise required by s 33(3) (which is that the Heritage Council considers the building to meet the criteria for determining State heritage significance); and secondly, the Heritage Council's consideration of the optional considerations set out in s 33(4). It is to be noted that the optional considerations set out in limbs (a), (b) and (c) of s 33(4) are identical to the considerations in limbs (b), (c) and (d) set out in s 32(1). Importantly, it is also to be noted that in circumstances where submissions have been received by the Heritage Council concerning a potential listing, as was the case with Sirius, the consideration of those submissions, which necessarily means the content or substance of those submissions, becomes a mandatory task for the Heritage Council: s 33(1)(d).
Given this process, it follows that in order for a s 34(1) decision of the Minister to be properly made in response to a Heritage Council recommendation, the Minister must necessarily consider the ss 33(1)(d), 33(3) and 33(4) matters that were considered by the Heritage Council and embodied in its recommendation. Fundamental to the interpretation issue before the Court, I highlight that s 33(3) includes the following consideration in limb (a): "the criteria approved as referred to in s 4A for determining whether an item is of State heritage significance".
If the Minister's task under s 34(1) was not carried out within the parameters of a consideration of the matters arising from ss 33(1)(d), 33(3) and 33(4), being the matters which were taken into account by the Heritage Council, it would mean that the process culminating in the Minister's consideration and decision is not essential to the statutory process for listing. So it follows that the parameters of the matters for the Minister to consider are shaped by the considerations which founded the Heritage Council's recommendation. It might be observed that an unconstrained exercise of discretion could be contrary to the objects of the Heritage Act set out in s 3, although I do not need to make a finding in this respect. Thus, I can conclude that any interpretation of the Minister's powers and duty under s 34(1) such that there is anything other than an inextricable nexus to the s 33(3) and s 33(4) considerations would be illogical - in both the first path and second path scenarios.
The requirement for the Minister to give reasons in accordance with s 34(4) reinforces the necessity for the decision (either to direct a listing or to not direct a listing) to be made within a relevant context. That context is the full recommendation of the Heritage Council. In the Sirius case, that context was the Heritage Council's recommendation, which included both the mandatory s 33(3) consideration and the s 33(4) considerations. The latter became mandatory considerations because submissions addressing those matters in detail had been received by the Heritage Council pursuant to s 33(1)(d). Relevantly, both the First and Second Respondents had made submissions pursuant to s 33(2)(d) focussing on the issue of "undue financial hardship". To reiterate, an interpretation of the Minister's task which ignores this nexus to the Heritage Council's full recommendation (and its basis) would render the recommendation process nugatory.
Thus, it was via this pathway that the question of "whether the listing would cause undue financial hardship to the owner … or lessee of the item or the land on which the item is situated" became a live issue. Therefore, putting to one side the agreed position of the parties - which follows from the Minister having chosen to follow the course of considering s 32(1) and the matters therein - I do not agree with the Applicant's proposition that the Minister must always consider s 32(1) and the matters therein in discharging his or her duty under s 34(1) regardless of the Minister's ultimate decision. Rather, s 32(1) must only be considered for the Minister to be empowered to direct a listing. It is a threshold check conditioning the power of the Minister to direct a listing. I consider that the purpose of specifying the considerations under limbs (a) to (d) of s 32(1) is to ensure that, when the Minister has passed the threshold of being satisfied that the building in question is of State Heritage significance and is minded to direct a listing, then he or she must take into account those considerations via that pathway.
However, even if the Minister need not consider s 32(1) because he or she ultimately decides not to direct the listing of an item, then he or she is nevertheless obliged to traverse the unavoidable pathway I have identified as conditioning the exercise of the power under s 34(1) regardless of the ultimate decision. Where that recommendation is based on the consideration of the matters in s 33(3)(a) and s 33(4), the Minister must also consider the content of those matters. It is conceivable that, in some instances, the s 33(4) considerations may not be enlivened if submissions on those matters were not received by the Heritage Council. In such a scenario, the Minister would not need to consider these matters.
Likewise, it is similarly through this pathway that the consideration of whether the building is of State heritage significance becomes a mandatory relevant consideration regardless of the Minister's ultimate decision.
Putting aside for the moment the fact that the Minister chose to act in accordance with s 32(1), I am of the opinion that the Minister was under a duty to consider whether Sirius was of State heritage significance due to the pathway identified above. The Minister was required to consider the heritage significance of Sirius because this was the fundamental matter for consideration by the Heritage Council in making its recommendation. Yet, I disagree with the Applicant that the Minister is required to consider and determine the heritage significance of a building by dint of s 32(1) regardless of the Minister's ultimate decision.
Thus, to the extent that the Applicant submitted that the Minister was required to consider s 32 and the matters therein, the Applicant's claim that the Minister had such an obligation is erroneous. However, with the Respondents' concession that the Minister did consider s 32(1), the Applicant's error comes to nothing. Further, for the reasons I have explained, the issue of whether the Minister misconstrued the content of the matters in s 32(1) is alive for determination on two bases: because the Minister chose to consider, and did consider, s 32 and because the Minister was required to consider the Heritage Council's recommendation.
It is important for the Court to stress that this issue - whether the Minister misconstrued the matters he was required to consider according to law - remains alive irrespective of whether they were required to be considered pursuant to s 32(1)(d) (as the Applicant claimed) or via the s 33 pathway (as the Court has found). As counsel for the Respondents submitted: … we accept that if the minister, in reasoning by reference to undue financial hardship, misunderstood what that concept means within the Heritage Act, then his decision will be vitiated by error. It doesn't matter whether he understood that he was doing it in a contemplative consideration of s 32(1)(d) or whether, on your Honour's alternative path, that was effectively compelled through the combination of s 34(1)(a) and s 33(4)(c) in circumstances where the Heritage Council had received submissions about undue financial hardship. Whichever route you take, he relied on that and, if he got it wrong, his decision can't stand. That's accepted. (Transcript, pages 23-24, lines 43-1).

Undue financial hardship

The Applicant's primary ground of challenge requires the Court to consider whether the Minister misconstrued the meaning of the words "would cause undue financial hardship to the owner". Similar words appear in ss 32(1)(d), 33(2)(d) and 33(4)(c) of the Heritage Act. As explained earlier, the Applicant founded its arguments on the consideration of those words appearing in s 32(1)(d) (whereas the Court has decided that this consideration arises by dint of s 33) and the Respondents have conceded that wherever the words appear, if the Minister misunderstood them in the exercise of his powers, then his decision would be vitiated by error. Wherever appearing in the Heritage Act, the Minister, in considering the matter, had an obligation to properly construe the words consistently with the Heritage Act.
The consideration of the question of whether a proposed listing would cause undue financial hardship necessarily requires a comparative exercise - a balancing of factors. This comparative exercise can only be undertaken if one has a yardstick to assess whether the nominated impact, financial hardship, would be "undue". It would be nonsense to consider whether this impact is "undue" in a vacuum. One must know the context to consider whether the impact is undue. The requisite comparative factors must be taken in to account in order to consider whether the impact would be undue - with the word "undue" clearly being used in the sense of unwarranted, unjustifiable or inappropriate.
The Court has concluded that there are two steps to the exercise of considering whether a listing would cause undue financial hardship. The first is a comparative exercise focussed on whether the listing would cause the owner to experience or suffer financial hardship. The second is also a comparative exercise, focussed on the context within which that financial hardship is to be considered - whether that financial hardship would be "undue" when assessed against the contextual heritage values of the building recommended for listing. Understanding that there are two yardsticks relevant to the proper consideration of undue financial hardship is critical.

The first yardstick - The consideration of financial hardship

The Respondents submitted that the words "financial hardship" are capable of being interpreted, in effect, to simply mean financial loss or financial detriment - which would encompass a reduction in the value of a building caused by the listing. More specifically, the Respondents submitted that the particular financial hardship identified by the Minister, a financial detriment of millions of dollars caused by the reduction in the market value of Sirius, demonstrates that the Minister properly understood the meaning of "financial hardship". It was not necessary for the Minister, according to the Respondents, to consider whether the owner or lessee of Sirius would be left in a state of financial hardship. Rather, it was open to the Minister to consider that the above financial loss was, in and of itself, a "financial hardship". They argued that it would be inequitable for the words to be interpreted so that wealthy individuals, corporations or the NSW Government would inevitably be excluded from being considered to be capable of suffering financial hardship.
To adopt an unanalytical approach could conceivably invite artificial arrangements of financial affairs by the owner of a nominated heritage building, say by the creation of $1 companies devoid of real assets as a tactical manoeuvre or perhaps the making of financial arrangements so that funds are not available, thereby creating an artificial hardship situation. In this instance, the Respondents explained that the public housing allocations relevant to the Sirius project were "off Budget", inferring that such arrangements meant that the Court ought not to presume that the financial "might" of the State of NSW or the whole Department of Housing or any other large public corporation might provide funding for public housing from an alternative source. The suggestion was that this "off Budget" arrangement was such that should the sale of the Sirius building result in lesser proceeds being received from the purchaser, suggested to be in the order of $70 million, then the particular "off Budget" fund would be detrimentally reduced, thereby resulting in a reduction of monies available for public housing elsewhere. It was inferred that, thereby, hardship would be suffered. As the Minister stated in the concluding words of his decision "… by diminishing what would otherwise be its sale value … which would potentially represent foregone funds for additional social housing".
The Court rejects these propositions. It must be kept in mind that the context of the word hardship is "undue financial hardship". The Court is of the opinion that the choice of the word "hardship", as distinct from other options, was intended when it was inserted into the Heritage Act. Clearly the lexicon of legal drafting offered the parliamentary drafter, at the direction of the Legislature, many options. The Legislature did not choose the words "loss" or "detriment", rather the word adopted was "hardship". In this respect, I emphasise that the High Court has repeatedly stated that the task of statutory interpretation must begin with a consideration of the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue at 46 [47].
The consideration of financial hardship must logically have a nexus to the status of the owner, mortgagee, or lessee affected by the listing. It cannot be that it axiomatically follows that any financial loss equates to financial hardship. Such an approach strips the word hardship of its meaning and construes it to mean something that it is not. Hardship cannot be arrived at via an unreal or artificial construct. The law would never condone the artificiality of some construct so as to manipulate the relevant yardstick, say, as mentioned above, with the creation of a $1 company devoid of capital for the express purpose of holding a nominated heritage property in question, so that any sale value differential resulting from heritage listing would give rise to an assertion of hardship. In short, an analytical examination of "financial hardship" would invariably be required. Obviously this example of a private sector corporation devoid of capital is not the case in this instance, but I have chosen such an extreme example in order to illustrate the care the Court must exercise in considering the Minister's decision.
With the Minister stating that the diminished sale value of Sirius "would potentially represent foregone funds for additional social housing" the "off Budget" arrangement of the financing of the State Government's public sector housing responsibilities was thereby highlighted. In the true sense or meaning of "hardship", can the Court seriously consider that the State of NSW will suffer hardship because it had arranged the availability of public funds into "silos" so that a variation in the supposed expected raising of funds from a property sale within one silo would be categorised as hardship? Is the Court to consider that by reason of this silo arrangement of State Government public funding, that in circumstances of a shortfall in expected sale proceeds, the Government will deprive the public housing sector of compensatory funding and instead allow it to founder? It is not for the Court to surmise whether such a politically sensitive outcome might be conceivable, but the submissions of counsel for the Respondents invited the Court to accept that a reduction in funds received from the sale of Sirius would result in the public housing sector being deprived of funds that it would otherwise have received (Respondent's written submissions, 31 March 2017 at par 4). They inferred that hardship would thereby follow. The Court doubts whether such a scenario is realistic, nor that it is proper for it to even be led down such a distracting path when interpreting the word "hardship".
If the Court is correct that the word "hardship" is not to be simply equated with the words "loss", "detriment" or "difference", and in rejecting the proposition that financial loss is, in and of itself, equivalent to financial hardship, the rationale for this interpretation necessarily returns to the need for a yardstick. That is, the consideration of financial hardship must involve the yardstick of considering whether a financial loss would, or would not, cause financial hardship. It follows that the consideration of financial hardship must involve the consideration of the (likely) financial status of the affected owner, mortgagee or lessee. Evidence must be considered of that (or their) financial status. It is not the role of the Court to perform this task. Rather, it is the role of the Court to determine whether the Minister misconstrued the meaning of "financial hardship" by eschewing the necessary task of considering whether the financial loss that he identified (or any other relevant impact) would cause financial hardship. The Court is of the opinion that the Minister misdirected himself by stopping at the threshold of his finding that financial loss would be occasioned on the erroneous assumption that financial loss of a particular magnitude could, in and of itself, constitute financial hardship. To properly consider the matter of financial hardship, the Minister had to direct himself to the consideration of whether financial hardship would be caused to the owner by the listing, not whether financial loss would be caused.
It is necessary to examine two further propositions put by the Respondents as to why the Applicant's interpretation of "undue financial hardship" should be rejected. First, the Respondents argued that because the Heritage Act does not set up a mechanism whereby the relative financial circumstances of an owner can be properly considered by the Minister under s 32(1)(d), and the Heritage Council under s 33(4)(c), practical difficulties might or would arise when the relevant financial information is not available. Given these difficulties, the Respondents said that their interpretation of s 32(1)(d) is to be preferred. I reject these submissions. The legislative scheme is obviously to draw out submission from the relevant and affected parties that will inform the Heritage Council and later, the Minister, of this material.
So beyond the required public notice to be published in a newspaper, s 33(1)(a)(i) specifically identifies the owner and occupier as persons to be given written notice of the Heritage Council's "notice of intention to consider listing". Additionally, s 33(2) nominates specific topics on which submissions can be made (with the caveat "[w]ithout limiting the submissions that can be made"). Amongst the submission topics is that set out in limb (d), "that conservation of the item the subject of the proposed recommendation could not be achieved without causing undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated".
Beyond these specific procedural requirements, s 8 of the Heritage Act ensures that the Heritage Council is an expert body, and may comprise persons with expertise in fields as diverse as the building, development and property industries (s 8(3)(d)) and property economics (s 8(3)(m)). Beyond the Heritage Council, the discretion of the Minister under s 34(1) is broad, enabling the Minister to be informed and seek information. Relevantly, the Minister may appoint the Planning Assessment Commission to review the matter. In short, I find no basis for the Respondents' submissions regarding a supposed practical difficulty in accessing and examining relevant financial information.
In fact, if no information was available to the Minister to consider that the listing of a building would cause financial hardship, and the Minister was to decide to direct the listing of the building, it is of some significance that the Minister may be empowered to remove the building from the Register if such information subsequently came to light: s 38. Ultimately, the structure of the Heritage Act supports the interpretation that the consideration of the financial hardship matter will require the Minister to consider the impact of listing on the financial position of the owner and not the impact in and of itself. Of course, if no evidence is available, then the Minister's consideration may simply conclude with a finding that no financial hardship is likely to be caused by the listing of the building.
Secondly, the Respondents asserted that the Applicant's interpretation of "undue financial hardship to the owner ..." would have capricious consequences because it would inequitably result in wealthy individuals or substantial property owning institutions (such as State-owned entities) rarely, if ever, being able to demonstrate financial hardship. Whereas, poorer members of society would be capable of demonstrating such hardship. It was argued that such an inequitable application of the law would never have been the intention of the Legislature. Although the Court agrees that assessments of financial hardship will arrive at differential outcomes depending on the relevant circumstances, the Court rejects that such outcomes are either capricious or inequitable. The Respondents' arguments in this regard are rejected.
First, whatever the status of the owner of a building recommended for listing, the same analytical comparative process would be applied to determine financial hardship. One cannot assume an inevitable outcome from this analytical exercise properly conducted. In short, the process remains even-handed. Secondly, Australia's statute books abound with examples of legislation which may be said to have differential implications for those with wealth compared to those not so blessed. Consider a few examples.
Land favoured with the most scenic attributes, which if unrestricted would offer immense opportunity to the land owner for profitable development, is frequently the very land most constrained by planning law controls. Whilst in the interests of the broader community, this legislation may concurrently fetter the financial aspirations of the wealthy landowner. With traffic regulation, the imposition of speed limits in the interest of public safety must, in a sense, be constantly frustrating for the owners of a Ferrari or a Lamborghini, who are never permitted to drive their cars at a speed at which they are designed to excel. Yet, without disrespect, this would be less of an issue for the owner of a modest Mitsubishi Colt. Australia's income tax laws, in essence, have differential implications for the wealthy and the poor, with the latter individuals falling below the marginal tax rate or into lower tax rate brackets, whilst the wealthy will always be partially taxed at the top tax rate. In short, it is commonplace for laws to have differing implications for people across the wealth spectrum.
This argument regarding capriciousness was raised in the context of the proposition that it is not necessary under the Heritage Act to consider the financial capacity of the affected owner when considering whether financial hardship is likely to be caused by a listing. Rather, according to the Respondents, financial hardship can be considered merely by demonstrating the likely occurrence of a financial impact or differential, divorced of its consequences for the owner's financial position. Hence, in the case of Sirius, any predicted reduction in potential property sale proceeds could be accepted as financial hardship whatever the financial capacity of the property owner. Financial hardship of that character would be divorced from the "personality" or particulars of the owner in question - in short, whoever that owner is and whatever their wealth might be, they could demonstrate financial hardship simply by reference to a likely lower return from a future property sale. The Court rejects these propositions. The rationalisation for this proposition is flawed as it misunderstands the meaning of financial hardship. It erroneously substitutes a financial consequence of listing an item (here, the market price differential) with the required complex equation of considering the financial impact upon the owner. Of course, a financial loss can cause financial hardship, but it is not inevitable. Thus, the Minister focussed on the wrong question when he merely accepted that the predicted price differential on the future sale of Sirius was axiomatically "financial hardship".
To reiterate, financial hardship might be occasioned by a lower return on sale, but the mere fact of that differential itself does not necessarily equate to financial hardship. Such a nexus would have to be considered by the Minister in order to determine whether the financial consequence would cause financial hardship. The Court has concluded that the Minister misdirected himself because he misinterpreted the meaning of the term "financial hardship", essentially equating it with a mere negative financial consequence - a financial differential, loss or detriment. In so doing, the Minister did violence to the meaning of the word "hardship".
To review, the first step for the Minister, when considering s 32(1)(d), is to consider whether the listing of the building on the Register would cause financial difficulties for, or impose a harsh or adverse financial situation upon, the specific owner or lessee. However, with this first step, the Minister erred as his reasons for decision justify his finding (that undue financial hardship would be caused to the owner(s) of Sirius if the building was listed) on the sole basis that the listing would significantly diminish what would otherwise be the expected financial return from the sale of Sirius. Although the Minister does indicate that such a lower return from the sale might represent foregone funds for additional social housing, the Minister does not consider if the projected diminution in the sale value of Sirius would cause the owner (Property NSW) or the lessee (New South Wales Land and Housing Corporation) financial difficulties, or impose a harsh or adverse financial situation upon them, constituting "undue financial hardship".
On the face of the Minister's reasons for decision, the Court is satisfied that the Minister misdirected himself as to the meaning of s 32(1)(d). The Minister directed himself to the wrong question of whether the listing of Sirius would have an unacceptable financial impact. The Minister did not, in the Court's opinion, turn his mind to the question of whether the listing would actually cause financial difficulties for, or impose a harsh financial situation upon, the owner or lessee; which would constitute "undue financial hardship" within the intended meaning of the provision. Given the Minister's finding as to the financial loss, he should have considered whether this projected lower return from the sale of Sirius would cause financial hardship to Property NSW. The Minister did not turn his mind to whether the listing would cause financial hardship to the owner and the lessee, he simply considered whether the diminution of the sale value of Sirius would have significant and unacceptable financial consequences regardless of the owner. A predicted lower financial return from a property sale is not "hardship" in and of itself. Such a financial loss, even of a very significant magnitude, might pose no hardship at all to a particular owner. Indeed, it may be accepted by a generous owner as a small price to pay to conserve a cherished heritage building. On the Respondents' argument, the listing of a building could cause financial hardship to an owner, by way of financial loss, even if that owner strenuously denied that he or she would be caused financial hardship given their wealth.
The unsound basis of simply equating predicted financial loss with financial hardship can be demonstrated by the apparent absence of any consideration of the other components in the complex equation which the Heritage Act creates. It is clear that the Heritage Act calls upon the Minister to exercise his discretion by taking into account a range of considerations. With both the "incapable of reasonable or economic use" consideration and the "undue financial hardship" consideration, the legislative scheme identifies a number of elements which are relevant components of this equation, elements that one would expect the Minister to consider. The Second Reading Speech of the Heritage Amendment Act 2009, which introduced s 32 in its current form, confirms the Legislature's intention that the Minister "consider a range of broader planning and economic issues".
Reviewing the Heritage Act, it is apparent that there are a range of factors which might conceivably influence the monetary sum likely to be obtained from the sale of Sirius - other components of the complex equation. Importantly, these factors could be relevant to whether financial hardship might flow from listing a building on the Register because such factors have the potential to reveal that the listing will not necessarily give rise to financial hardship. The Heritage Council raised two of those factors in its resolution of 2 December 2015 as follows:
Direct the Heritage Division to work with the Owner to prepare site specific exemptions in accordance with section 57(2) of the Heritage Act 1977, for future Heritage Council recommendation to the Minister;
Advise the Minister that the "Sirius Apartment Building" would be an appropriate candidate for sympathetic modifications in order to permit new residential uses and possible additional mixed uses...
The Applicant submitted that the financial assistance provisions found in the Heritage Act, being three specific measures available to financially assist owners of land subject to a heritage agreement (s 45), have a connection to the s 32(1)(d) consideration of hardship. Specifically, it was said that the question of whether financial hardship resulting from a heritage listing is undue should be considered in the context of the legislated offsets available, such as council rates and land tax waiver.
The listing of a building on the Register usually identifies those aspects of a place that contribute to its significance which warranted its listing, whilst concurrently identifying aspects which may not have contributed to its significance. Where a listing identifies components of a property not of heritage significance, such components might be dispensable from a heritage asset management perspective. In this context, any bare assertion that the listing of Sirius essentially blights the site, by diminishing its sale value by $70 million, may indicate that no consideration has been made of those factors which might limit the loss in value of the building. For example, a conservation management plan may or may not allow much leeway in providing a future owner with re-development potential. A myriad of options of dealing with a listed building might be conceivable. So returning to the "undue financial hardship" consideration, it cannot be maintained that financial loss simply equates with financial hardship. Financial loss may, or may not, result in financial hardship. It depends on all of the circumstances.
The range of factors that might be relevant to the question of whether financial hardship would be caused by a listing include: the "restraining factors", as I will call them, found in s 57(1)(a)-(h) which, for example, prohibits the demolition of a heritage listed item without prior approval. Emphasising these restraining factors, counsel for the Respondents submitted "[o]nce it's on the list as a heritage item, it can't be demolished. That, as your Honour will appreciate, has a radical effect on the value of the land". (Transcript page 27, lines 22-24).
However, that is not the end of the matter. There are counterbalancing factors, such as negotiated site-specific heritage agreements prepared pursuant to s 40, which can provide for exemptions from the restraining factors - s 57(1B). Another counterbalancing factor might be a conservation management plan prepared pursuant to s 38A, which can also provide for exemptions from the restraining factors - s 57(1D). Another counterbalancing factor might flow from the s 118 provision for the making of regulations with respect to the maintenance and repair of a building that is listed on the Register. Such regulations might provide flexibility- what constitutes essential work might vary depending upon the particular status and condition of the listed building. Finally, as the Applicant submitted, there are various assistance measures provided for by s 45, which can include financial assistance with respect to the payment of land tax, duty or council rates.
On the basis of the foregoing analysis, I have concluded that the Minister did misdirect himself when he interpreted the words "financial hardship" in s 32(1)(d), and as identically expressed in s 33(4)(c), when he erroneously equated financial hardship with a diminution in the sale value of Sirius. Further, if the Minister, by stating that the diminished sale value would "potentially represent foregone funds for additional social housing", intended to say that the First and Second Respondents would suffer financial hardship (although unlikely on the face of the Minister's reasons for decision), then he failed to establish any relevant nexus. Ultimately, I am satisfied that the Minister directed himself to the wrong question, in considering s 32(1)(d), of whether the listing would have an unacceptable financial consequence. The Minister was required to consider whether the listing would cause the owner or lessee, in their particular circumstances, undue financial hardship.

The second yardstick - The consideration of whether the financial hardship is "undue"

In paragraph 113, I explained that the Court is of the opinion that there are two yardsticks involved in the consideration of whether a listing would cause undue financial hardship to the owner. Paragraphs 114 to 137 examined the words "financial hardship", being the first yardstick, divorced from the word "undue". The second yardstick concerns the implications of the word "undue". The Court is of the opinion that the word "undue" requires the matter of "financial hardship" to be considered within a particular context - a heritage values context. It is conceivable that it might be found that financial hardship will be caused to an owner by a listing in accordance with the first yardstick inquiry described above, but that this hardship is nevertheless not "undue". The contextual heritage values of the building may be so significant, irreplaceable or important to society, that the financial hardship is not undue and must be tolerated or addressed in some other way.
Consider two simple examples from a different context: the World Heritage listed Sydney Opera House would most likely be considered so important to Australia, indeed the World, that whatever the financial hardship caused by bearing the costs of maintaining and managing it, those costs could never be contemplated to cause "undue" financial hardship. Similarly, the Sydney Harbour Bridge, listed on the State Heritage Register, is of such iconic heritage value to the State, that whatever the financial hardship occasioned in maintaining it, those costs could never be contemplated to cause "undue" financial hardship to the owner. The financial impost associated with such iconic heritage items might be enormous, never cease, and cause the owner to suffer financial hardship, but however onerous, any financial hardship would, arguably, never be considered to be "undue".
From the Respondents' perspective, the relevant comparative exercise for the Minister to undertake when considering financial hardship was explained as follows: We accept there's relativities involved in the notion of "undue". What the relativities are are between the heritage values that would be protected by listing as compared with the financial hardship. That's what makes something undue in the sense of being excessive, not appropriate, not warranted. If "undue" carries with it the notion of relativities, is something appropriate or not, excessive or not, so there's a weighing up, that is clearly comprehending the weighing up of heritage values against financial impact. (Transcript, page 31 and 41).
The Respondents submitted that regard should be had to the 2009 Second Reading Speech of the Heritage Amendment Act 2009, which introduced the current s 32 into the Heritage Act. I find no justification or support for the Respondents' interpretation of "undue financial hardship" in the Second Reading Speech. On the contrary, I find that it supports an interpretation that requires a "balancing" exercise. The Minister in the Second Reading Speech stated that the new provisions would ensure that "appropriate balance" will be achieved between the conservation of the State's heritage and, inter alia, the costs of heritage conservation. Here, the consideration of "undue financial hardship" necessarily calls for a balancing exercise: to compare the merits of listing a building against any established financial hardship consequences of so doing. The Minister cannot arrive at a clear understanding of this balancing exercise unless he compares the financial hardship caused to the owner by the listing, against the comparator, the benefits of the nominated heritage item being listed. Of course, if the Minister does not consider there to be any financial hardship, the consideration of the word "undue" is completely unnecessary. In fact, the Court's decision that the Minister misconstrued the meaning of the words "financial hardship" means that the Minister fell into legal error, such that his decision not to direct the listing of Sirius is invalid. Strictly, the Minister could not then correctly consider whether undue financial hardship would be caused by the listing of Sirius once he had erred in interpreting the meaning of the words financial hardship. Nevertheless, there is utility in understanding the implications of the word "undue" had the Minister not misdirected himself at the "starting blocks".
I am of the opinion that the matter of "undue financial hardship" cannot be properly considered if the Minister has not arrived at an understanding of the significance of the heritage building that may or may not be listed. Understanding the values of the heritage building is another way of understanding the significance of the heritage building. If the heritage building is listed, protective consequences (described as "restraining factors" in paragraph 135) will flow under the Heritage Act. It is the protection and conservation of the heritage building, with its identified values, that is the comparator against which the Minister must compare the financial hardship. So, in order for this process to have some veracity, the "values" of the heritage item must be understood in order to identify whether the costs of conserving that item will be "undue". As will be seen, my consideration of the word "undue" has relevance to my observations, which I will come to, with respect to the Applicant's second ground.
In support of their interpretation, the Respondents relied upon the decision of Lord Denning in Liberian Shipping Corp "Pegasus" v A King & Sons Ltd wherein his Lordship interpreted the meaning of "undue hardship" - albeit in an entirely different context. I find little merit in the Respondents' submissions regarding Liberian Shipping Corp "Pegasus" v A King & Sons Ltd, where Lord Denning held that undue hardship is best interpreted as "greater hardship than the circumstances warrant". On the contrary, Lord Denning's approach support's the Applicant's contentions on the effect of the word undue, as outlined in paragraph 43 of this judgment. So this Denning interpretation requires one to determine the "circumstances" relevant to the consideration of whether the hardship likely to be suffered is unwarranted. In the context of a recommendation that a building be listed on the Register, those particular circumstances must be considered. It is illogical to think that it is the mere fact of a recommendation that constitutes the circumstances needed to be considered. It must involve a consideration of the substance of that recommendation - and that necessarily includes the heritage significance of the nominated building. In short, Lord Denning was confirming that a comparative exercise was required - a yardstick needed to be found against which it could be considered whether the decision in question would bring about "undue hardship". One cannot consider whether hardship is unwarranted - the alleged "undue hardship" - unless it is compared against something - here, the heritage implications of the listing. This necessarily requires the values, and so significance, of the heritage item to be properly considered.
In the "normal course", where the first pathway described in paragraph 88 in this judgment is embarked upon, the consideration of undue financial hardship under s 32(1)(d) would have been preceded by the precondition, as I described it in paragraph 89, that the Minister considers the building in question to be of State heritage significance. Moreover, the Minister would be bound to consider the recommendation of the Heritage Council that the building be listed. As has been explained, the Minister, despite being of the mind under s 34(1) not to direct that Sirius be listed, adopted the unnecessary course of proceeding pursuant to s 32(1) by conducting his consideration and making his decision purportedly in accordance with that section. As counsel for the Respondent conceded, the Minister, having embarked upon that course, was bound to do so according to law.
Consequently, had the Minister correctly assessed financial hardship he was still required to consider whether the perceived financial hardship was "undue" and in so doing would have been required to consider the heritage significance of Sirius. The word "undue" necessarily requires the heritage context to be understood and considered. In essence, despite the pathway properly being the second pathway - s 34(1) to s 33(4)(c) - the Minister's choice to embark upon the s 32(1) pathway meant that he was obliged to give a contextual meaning to the word "undue" by establishing to his satisfaction the heritage significance of Sirius. Importantly, as explained in paragraph 91 above, the s 32(1) pathway obviously contemplates a preliminary decision as to whether the building is of State heritage significance, followed by an ultimate decision, whether to proceed with listing, after taking into account the considerations in limbs (a), (b), (c) and (d).
In short, by whatever path the Minister arrives at the consideration of "undue financial hardship", by virtue of the word "undue", it necessarily follows that the matter of whether the perceived financial hardship is "undue" requires the heritage context to be considered and crystallised. Even though the Minister commenced with a s 34(1) desire to direct that Sirius not be listed, he must arrive at an understanding of its heritage significance, which is tantamount to the exercise required for the pre-conditional preliminary decision required by s 32(1) that the building is considered to be of State heritage significance.
I have considered whether the duty of the Minister is simply to consider the possible State heritage significance of the building, as distinct from arriving at a concluded view. I have contemplated whether the contextual test of whether the implications of listing are "undue" can have much or any veracity if the heritage significance of the building has not crystallised in the mind of the Minister. I have concluded that the duty imposed on the Minister is more than just a consideration of the Heritage Council recommendation as the assessment of heritage significance requires a greater degree of certainty on the part of the Minister. A mere assumption by the Minister about the State heritage significance of the building is insufficient. How I ask, rhetorically, can one consider whether financial hardship is undue if the consideration of the heritage significance of the building has not crystallised. It is important to note that the Legislature has implicitly decided that it cannot be done in requiring, in the chapeau to s 32(1), the Minister to reach a concluded view. Without the Minister arriving at a more concluded view, including, in particular, an assessment of the components of the building which are of more critical significance which would warrant protection as distinct from components of the building of less or little significance which might be demolished, the Minister would never be able to contextually determine which of the "countervailing factors" might be available to offset the "restraining factors" (as described in paragraphs 132 and 133 of this judgment). As explained earlier, the consideration of such offsets can be relevant when determining whether possible financial hardship resulting from listing would be "undue".
On the face of the Minister's reasons for decision, I am of the opinion that the Minister did not properly consider, let alone arrive at a tentative conclusion, whether Sirius was of State heritage significance. The Minister's words in the last paragraph of his decision document: "…in this case whatever the heritage significance of the Building, even at its highest (including even if it reached a threshold for State heritage significance) …" are, in my opinion, not only revealing but determinative of this question. It is clear that the Minister side-stepped the required assessment. Even if the Minister needed to only arrive at a tentative conclusion short of a formal determination, he failed to do so. A ministerial assessment was not made on the State heritage significance of Sirius. Further, the preceding two paragraphs in the Minister's decision document do not alter my opinion. They are simply discursive, the Minister refers to observations drawn from the Heritage Council's recommendation and then simply notes countervailing observations. In both instances, the discursive nature of the observations in the paragraphs means that these observations do not purport to determine either the aesthetic values or historical values said to make up Sirius's heritage significance.
I am of the opinion that reasoning on the basis of "whatever the heritage significance" of Sirius, the Minister did not establish a relevant comparator to determine whether the alleged financial hardship caused by listing Sirius would be "undue". The Minister had a statutory responsibility which cannot be discharged by side-stepping the requirement to properly assess and understand the contextual heritage significance against which to address the question of whether listing Sirius would cause undue financial hardship.

The failure to determine the heritage significance of Sirius

In circumstances where I have decided that the Applicant has succeeded on its first ground, it is strictly unnecessary for me to determine the Applicant's second ground. However, given that one of my consequential orders is to direct the Minister to make a decision either to direct or not to direct the listing of the Sirius Apartment building on the State Heritage Register under s 34(1) of the Heritage Act according to law, I consider that there is utility in the Court setting out its conclusions regarding the Applicant's second ground.
On the basis of my analysis of "undue" in the context of "undue financial hardship" which was required in order to consider the Applicant's first ground, I consider that analysis is both instructive and apposite when considering the second ground and need not now be repeated. Once the Minister chose that he would make his decision pursuant to s 32(1), the Minister did fall into error by failing to fulfil the duty imposed on him by both s 32(1) and s 34(1), specifically by failing to reach a tentative conclusion as to whether Sirius was of State heritage significance.
The required tentative conclusion regarding the heritage significance of Sirius was akin to the pre-condition discussed in paragraph 89 of this judgment, when the steps in the s 32(1) "first pathway" are being followed in the normal course. As stated a number of times in this judgment with respect to Sirius, the normal path was not followed.
Had the Minister not embarked upon a pathway embracing s 32(1), he could have followed the second pathway, which is to be expected when a decision not to direct listing was within contemplation. As paragraph 106 in this judgment explains, if the second pathway from s 34(1) had been properly followed, the Minister's obligation would have been to (1) consider the matters raised with the Heritage Council in the submissions it received and (2) consider the matters the Heritage Council considered. The pathway chosen by the Minister via s 32(1) and his reliance upon the basis of "undue financial hardship" as it appears in 32(1)(d), meant that he elevated his obligation from that of considering Sirius's heritage significance to a duty to arrive at a tentative conclusion as to whether Sirius was of State heritage significance.
As explained in both paragraph 108 and 109 of this judgment, I do not agree with the reasoning of the Applicant that the Minister as a matter of course is required to determine the heritage significance of a building by dint of s 32(1) regardless of the Minister's ultimate decision. Nevertheless, by the reason of the pathway the Minister did in fact choose to follow, for the reasons explained above, I consider that the Minister erred in law by failing to arrive at a tentative decision as to whether Sirius was of State heritage significance.

ORDERS

For all of the reasons set out above, the Court concludes that the Minister's decision of 30 July 2016, pursuant to s 34(1) of the Heritage Act, not to direct the listing of the Sirius Apartment Building on the State Heritage Register involved legal errors and is, therefore invalid and of no legal effect. On this basis, the Court: 1. Declares that the decision of the Minister for Heritage, under s 34(1) of the Heritage Act, of 30 July 2016 not to direct the listing of the Sirius Apartment Building on the State Heritage Register is invalid and of no effect; 2. Orders the Minister for Heritage to make a decision either to direct or not to direct the listing of the Sirius Apartment Building on the State Heritage Register under s 34(1) of the Heritage Act according to law; and 3. Orders the First and Second Respondents to pay the Applicant's costs as agreed or assessed. 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. Decision last updated: 25 July 2017

(2011) 210 LGERA 375

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