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[2016] ACAT 41
General information, not legal advice.
ACT Civil and Administrative Tribunal
2016-05-13
Original judgment source is linked above.
NATIONAL TRUST of AUSTRALIA (ACT) v ACT HERITAGE COUNCIL & ANOR (Administrative Review) [2016] ACAT 41
Catchwords: ADMINISTRATIVE REVIEW -- statutory construction - section 40 of the the provisions of the Act must be read in the context of the Act as a whole heritage significance not the only or primary consideration at registration - multiple statutory obligations to be considered
Cases cited: In re The Municipal District of Lambton (No 2) [1899] NSWLawRp 91; (1899) 20 LR (NSW) 378
National Trust of Australia (ACT) v ACT Heritage Council [2015] ACAT 52
Project Blue Sky Inc v Australian Broadcast Authority (1998) 194 CLR 355
Tasker v Fullwood [1978] 1 NSWLR 20
Papers/Texts Cited: Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011)
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 97/ 2015
1. The reasons below explain why the Tribunal has confirmed the decision under review.
2. The Tribunal has concluded that, firstly, in construing section 40 of the Heritage Act 2004 ('the Act') by reference to sections 139, 140, and 141 of the Legislation Act 2001 ('the Legislation Act') and reading the Act as a whole, the Heritage Council is not limited to considering only heritage concerns in identification of heritage significance or that heritage concerns are to be the primary focus at the time of registration. The Tribunal has concluded the Council is required to balance the multiple objectives required of it under the Act at the time of registration, namely
3. Secondly, the Tribunal is satisfied that the Council followed the correct procedure in making the decision on 19 November 2015.
4. In the reasons below, a reference to 'ACAT' or 'tribunal' refers to the ACT Civil and Administrative Tribunal generally, whereas 'Tribunal' refers to the members who heard the application.
5. The applicant is the National Trust of Australia (ACT) which shall be referred to as 'the applicant' throughout these reasons; the respondent, the ACT Heritage Council, shall be referred to as 'the respondent' or 'the Council' and the party joined, Conrad Gargett Ancher Mortlock Woolley, shall be referred to as 'the party joined'.
6. The relevant republication of the Heritage Act 2004 ('the Act') that applies to these proceedings is Republication 20.
7. The applicant has applied to the Tribunal for review of a decision of the Council taken on 19 November 2015 to register the Northbourne Housing Precinct Representative Sample ('the representative sample')[1] for the purposes of section 40 of the Act.
8. The original designer of the Northbourne Housing Precinct in 1959 - 1960s, was Sydney Ancher, from the Sydney architectural practice of Ancher, Mortlock and Murray. This practice subsequently became Conrad Gargett | Ancher Mortlock Woolley. By order of the Tribunal on 10 February 2016, Conrad Gargett Ancher Mortlock Woolley was made a party joined in these proceedings.
9. The contentions of the applicant and the party joined were similar. Essentially, they say that instead of deciding to register a representative sample, the Council should have registered the entire Northbourne Housing Precinct.
10. The Council's contentions were that the decision of 19 November 2015 to register a representative sample, namely 17 of the 62 buildings comprising the Northbourne Housing Precinct, was a proper exercise of the discretion vested in it under the Act and that the decision under review should be confirmed.
11. The Northbourne Housing Precinct was a public housing initiative of the National Capital Development Commission between 1959 and 1962.[2] The precinct occupies about half of the Northbourne Avenue frontages between Macarthur Avenue and Wakefield Avenue (at the southern end), and Murdoch and Morphett streets (at the northern end). On the western side it consists of block 8 section 51 Lyneham. On the eastern side it is made up of blocks 40-41 section 6, block 1 section 12[3] and block 4 section 2 Dickson.
12. Within the Northbourne Housing Precinct there were 62 buildings (of which two have now been demolished), of five building types. The decision under review registered 17 of the 62 buildings and included a sample of each of the five building types. The five types are (1) the four storey Bachelor Flats (otherwise known as Bedsitter Flats) at the northern end of the precinct on both sides of Northbourne Avenue (named the Lyneham and Dickson flats), (2) the Pair Houses (between the western side of Northbourne Avenue and De Burgh Street Lyneham), (3) the three storey flats (named the Owen Flats) between the western side of Northbourne Avenue and Owen Crescent Lyneham, (4) the three storey Maisonettes between the eastern side of Northbourne Avenue and Karuah Street Dickson, and (5) the Garden Flats (otherwise known as Courtyard houses) between Karuah and Dooring streets Dickson.
13. The Council decided to provisionally register the entire Northbourne Housing Precinct under section 33 of the Act[4] on 18 September 2014.
14. By this time the Council was aware of development application DA 201425880 (referred to as 'the first DA'), which the Tribunal understands was submitted by Indesco Pty Ltd on behalf of the Land Development Agency ('LDA') on 3 July 2014. This sought approval for the first stage of demolition of existing buildings in the precinct and related to the three bachelor flats on the Dickson side of Northbourne Avenue on blocks 40 and 41 section 6 Dickson, structures and pavement, associated landscaping, paving and other site works.[5] The Council was consulted under part 10 of the Act and section 148(1) of the Planning and Development Act 2007. It gave written 'heritage advice' to the ACT Planning and Land Authority ('ACTPLA') on 29 July 2014 in relation to the first DA. In its advice the Council sought further information in relation to the potential for upgrading the existing buildings for adaptive re-use.[6]
15. At the time of the first DA, and the Council's response[7] to ACTPLA on 29 July 2014, the heritage status of the Northbourne Housing Precinct was that it had been nominated under section 28 of the Act for registration, but had not yet been assessed by the Council. By the time of the first of the two amendments to the first DA on 8 October 2014, the (entire) precinct had been provisionally registered on 18 September 2014.
16. The Council provided written heritage advice for each of the proposed amendments on 29 October 2014 and 12 December 2014. In the 29 October 2014 advice the Council referred to the additional information it had sought in relation to the first DA. It advised inter alia that, having received and considered that information, the proposed development would have a detrimental impact upon the heritage significance of the Northbourne Housing Precinct and that if the demolition was to proceed there was no way of avoiding or minimising the impact of the development on the precinct.
17. By the time the advice for the second amendment was provided on 12 December 2014 the Council had completed the public consultation about the provisional registration of the (entire) precinct. In response to that consultation the Council recommended reducing the boundary for the final registration of the precinct to include only the northern block of (bachelor) flats in Dickson and not to include the central and southern blocks of (bachelor) flats. On that basis, the Council advised the LDA it did not object to the demolition of the central and southern blocks of flats and that "the proposed development is unlikely to detrimentally impact upon the heritage value of the place."[8]
18. On 17 December 2014 the first DA, as amended, was partially approved and partially refused, so as to exclude the northernmost bachelor flat tower in Dickson and regulated trees.
19. The Council made a decision[9] to register a sample of the Northbourne Housing Precinct on 12 February 2015, under section 40 of the Act.
20. On 6 March 2015 the applicant lodged an appeal with the Tribunal seeking review of the Council's decision.
21. On 22 May 2015 the tribunal determined that it lacked jurisdiction to hear the applicant's appeal and the application was dismissed.[10]
22. On 16 March 2015 ACTPLA issued a decision on reconsideration of DA201425880 (the first DA, as amended up to that date) allowing the demolition of all except the northernmost block of Dickson Flats and the removal of four of the regulated trees and of associated landscaping and paving on blocks 40 and 41. In that decision ACTPLA referred to the earlier advices from the Council dated 29 July 2014, 29 October 2014, 12 December 2014 and to further advice from the Council dated 5 February 2015 stating:
... the proposed reconsideration of the partial refusal is unlikely to detrimentally impact upon the heritage values of the place, noting that the Heritage Council did not object to the removal of the trees in its advice on the original application.[11]
23. On 9 June 2015 DA201527481 ('the second DA')[12] was lodged by Indesco Pty Ltd for the demolition of existing buildings, structures and pavements in the entire precinct (with the exception of two of the bachelor flats at the northern end of the precinct, one in Dickson and one in Lyneham, and one group of nine blocks of pair houses between De Burgh Street and Northbourne Avenue on the Lyneham side).
24. The Council provided its advice and 'heritage impact assessment' on the second DA to ACTPLA on 30 June 2015.[13] It said that the proposed development would have a detrimental impact on the heritage values of the place on the basis of the heritage assessment and would have a significant adverse impact under section 124A of the Planning and Development Act 2007.
25. On 16 July 2015 the applicant sought judicial review in the ACT Supreme Court. On 30 July 2015, with the consent of the parties, the Council's decision of 12 February 2015 was set aside by the ACT Supreme Court. As a consequence, the Council's provisional registration of 18 September 2014 expired and the place had no heritage status due to the provisions of the Act at that time.[14]
26. The applicant nominated the entire precinct for registration on 13 August 2015.
27. On 3 September 2015 the Council made a decision to provisionally register the Northbourne Housing Precinct Representative Sample under section 33 of the Act.[15]
28. On 9 September 2015 the second DA was amended to seek approval to demolish the buildings that were not covered by the Council's decision to provisionally register the 17 buildings in the representative sample.
29. On 7 October 2015 the Council advised ACTPLA that the development proposed by the second amended DA was now unlikely to detrimentally impact upon the heritage values of the place.[16] The Council reiterated its previous advice in the heritage assessment of 30 June 2015 and requested the retention of the existing network of pathways and plantings within each building curtilage to reinforce the original planning layout and building siting arrangements.
30. On 19 November 2015 the Council made a decision to register the Northbourne Housing Precinct Representative Sample under section 40 of the Act.[17] It is this decision of 19 November 2015 that is the subject of review.
31. An image of the Registered Northbourne Housing Precinct Representative Sample Registration Boundary was Exhibit R6.
32. The further amended second DA was given conditional approval by the Minister on 24 November 2015, providing for demolition of all buildings save for the 17 buildings registered by the decision under review, and effectively replacing the first DA.[18] Demolition of two of the bachelor flats took place from 24 February 2016 under the approved second DA.[19]
33. On 22 December 2015 the applicant lodged an application to review the Council's decision of 19 November 2015.
34. The hearing took place over three days commencing 29 March 2016.
35. The applicant was represented by Mr Richard Arthur of counsel, instructed by Mr Eric Martin, and called on the written and oral evidence of Mr Graeme Trickett as an expert witness. The party joined was represented by Mr Andrew Freer and also relied on the statement of Mr Trickett. The respondent was represented by Mr Robert Clynes of counsel, instructed by Mr Leszek Stawsky of the ACT Government Solicitor, and called upon the written and oral evidence of Mr David Flannery, Chair of the ACT Heritage Council.
36. On 22 March 2016 the respondent Council filed an application for orders seeking to exclude the evidence proposed to be adduced from Mr Trickett on the basis that he is a sessional member of the tribunal. It was submitted there were grounds for apprehended bias that might prevent the Tribunal, however it was constituted, from demonstrating natural justice and procedural fairness in its deliberations.
37. This application was dealt with at the commencement of the hearing on 29 March 2015. After receiving submissions from all parties, and considering the issues and the authorities, the Tribunal reserved its decision. On 30 March 2016 the Tribunal delivered oral reasons and decided, in dismissing the application, that a case of apprehended bias had not been made out and the evidence should not be excluded.
38. The substantive hearing commenced on 30 March 2015 with opening submissions from the parties followed by a site inspection, during which the Tribunal was shown the five building types and the spatial configuration and relationships among the various elements The hearing continued on 30 and 31 March 2015 with examination of witnesses and submissions and concluded with the Tribunal reserving its decision.
39. The long title of the Heritage Act 2004 is:
An Act to provide for the recognition, registration and conservation of places and objects of natural and cultural significance, and for other purposes.
40. The objects of the Act are stated in section 3, namely:
(a) to establish a system for the recognition, registration and conservation of the following:
(i) places and objects that have natural heritage significance;
(ii) places and objects that have cultural heritage significance;
(c) to provide for heritage agreements to encourage the conservation of heritage places and objects;
(d) to establish enforcement and offence provisions to provide greater protection for heritage places and objects;
(e) to provide a system integrated with land planning and development to consider development applications having regard to the heritage significance of places and heritage guidelines.
41. Section 3A refers to the exercise of functions under the Act and states:
(1) A function under this Act must be exercised in a way that, as far as practicable, achieves the following:
(i) places and objects with heritage significance; and
_(b) the maximisation of the community's ability to benefit from the places and objects, without adversely affecting - _
(i) the ongoing conservation of the places and objects; and
(ii) any thing that forms an important part of the heritage significance of the place or thing.
_(2) However, if the exercise of a function would result in harm to a place or object with heritage significance, or an Aboriginal place or object, the function may be exercised only if the entity or person exercising the function - _
(a) is satisfied that it is not reasonably practicable to exercise the function in a way that avoids the harm; and
(b) identifies all reasonable steps that must be taken to minimise the extent
42. The functions of the Council are set out in section 18 which states:
(a) to identify, assess, conserve and promote places and objects in the ACT with natural and cultural heritage significance;
(b) to encourage the registration of heritage places and objects;
(c) to work within the land planning and development system to achieve appropriate conservation of the ACT's natural and cultural heritage places and objects, including Aboriginal places and objects;
(d) to advise the Minister about issues affecting the management and promotion of heritage;
(e) to encourage and assist in appropriate management of heritage places and objects;
(f) to encourage public interest in, and understanding of, issues relevant to the conservation of heritage places and objects;
(g) to encourage and provide public education about heritage places and objects;
(h) to assist in the promotion of tourism in relation to heritage places and objects;
(i) to keep adequate records, and encourage others to keep adequate records, in relation to heritage places and objects;
(j) any other function given to it under this Act or another Territory law.
43. Pursuant to section 40 of the Heritage Act the Council may register a place if satisfied, on reasonable grounds, that it has heritage significance. Section 10 of the Heritage Act defines heritage significance. The parties have agreed that the Northbourne Housing Precinct meets the following heritage criteria in section 10:
(a) it demonstrates a high degree of technical or creative achievement (or both), by showing qualities of innovation, discovery, invention or an exceptionally fine level of application of existing techniques or approaches;
(b) it exhibits outstanding design or aesthetic qualities valued by the community or a cultural group;
(d) it is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations;
(f) it is a rare or unique example of its kind, or is rare or unique in its comparative intactness; and
(h) it has strong or special associations with a person, group, event, development or cultural phase in local or national history;
44. Section 35 refers to the period of provisional registration and for an extension of that period. Relevantly for this decision subsections (1) and (2) state:
_(1) The period of provisional registration of a place or object begins on the day the place or object is provisionally registered under section 33 (the "provisional registration day") and ends - _
(a) for a precinct - 9 months after the provisional registration day; or
(b) in any other case - 5 months after the provisional registration day.
_(2) A period mentioned in subsection (1) (the initial period) is extended for an additional period (an "extension"), not more than 3 months, if - _
(a) the council is required to resolve complex issues in relation to the place or object provisionally registered and the council is satisfied on reasonable grounds that the initial period will end before it is able to resolve the issues; and
(b) the council, at least 25 working days before the end of the initial period, takes reasonable steps to tell each interested person for the place or object that the council seeks an extension_; and_
(c) the council, at least 25 working days before the end of the initial period, gives the Minister written notice (an extension _notice) stating - _
(ii) the length of the extension sought, including the beginning and end dates of the extension_; and_
(d) the Minister does not, within 10 working days after receiving an extension notice, tell the council in writing that the extension is opposed.
45. Division 6.2 of the Act refers to registration. Section 37 refers to public consultation about registration and states:
37_. Public consultation about registration of place or object_
(1) A notice under section 34 (Notice of decision about provisional registration) must include an invitation to make comments about the registration of the place or object to the council within 4 weeks after the day the notice is notified under the Legislation Act (the public consultation period ).
Note Section 117 deals with giving documents to the council.
_(2) In deciding whether to register a place or object under this division, the council - _
(a) must consider any comments made to the council about the registration before the end of the public consultation period; and
(b) may consider any comments made to the council about the registration after the end of the public consultation period.
46. Section 40 refers to registration and states:
_(1) If a place or object is provisionally registered the council must either - _
_(a) decide to register the place or object under this division by - _
(i) entering the registration details for the place or object in the register; and
(ii) removing the indication that registration is provisional; and
(iii) preparing written notice of the decision; or
_(b) decide not to register the place or object under this division by preparing a written notice stating - _
(ii) the date the decision takes effect (the cancellation date).
(2) The cancellation date must not be a date before the end of the period an interested person may apply to the ACAT for a review of the decision.
(b) must be notified under the Legislation Act within 5 working days after the day the decision is made; and
(i) the registration details of the place or object;
(iii) for a decision to register a place or object - the date registration takes effect; and
(4) The council must, as soon as practicable, give additional public notice of the notice under subsection (3).
Note Public notice means notice on an ACT government website or in a daily newspaper circulating in the ACT (see Legislation Act, dict, pt 1). The requirement in s (4) is in addition to the requirement for notification on the legislation register as a notifiable instrument.
(5) The council must take reasonable steps to give a copy of the notice to each interested person within 15 working days after the day the decision is made.
Note Interested person _ - see_ s 13.
_(6) However, any decision of the council under this section may only be made if - _
(a) the council is satisfied on reasonable grounds that the place or object has heritage significance; and
(b) the council has complied with any direction given by the Minister under section 39.
47. Part 10 of the Act refers to land development applications. Section 60 of the Act relates to advice about the effect of development on heritage significance and states:
60. Advice about effect of development on heritage significance
(1) This section applies if the council is satisfied on reasonable grounds that a development _would affect - _
(a) the heritage significance of a registered place or object; or
Note A registered place or object includes a provisionally registered place or object (see s 11).
(b) a nominated place or object that, in the opinion of the council, is likely to have heritage significance.
(2) The council may give the planning and land authority written advice in accordance with section 61 about its decision.
Note 1 If the planning and land authority refers a development application to the council under the Planning and Development Act 2007, s 148, the council must, not later than 15 working days after being given the application, give the planning and land authority its advice in relation to the development application (see Planning and Development Act 2007, s 149).
Note 2 The council may apply to the ACAT for review of the planning and land authority's decision to approve a development _application if the council - _
(a) made a representation about the proposal under the Planning and Development Act 2007, s 156; and
(b) is an eligible entity under that Act, ch 13 (Review of decisions) (see Planning and Development Act 2007 , s 408 and s 419, and sch 1, item 4 and item 6).
48. Section 61 sets out the requirements for the Council's advice about development and states:
Requirements for council's advice about development
_(1) This section applies if the council gives advice - _
(a) under section 60 about the effect of a development on a place or object that has, or is likely to have, heritage significance; or
(b) under the Planning and Development Act 2007 section 149 in relation to a development application.
(2) The council's advice must include the following:
(a) an outline of the effect of the development on the heritage significance of the place or object;
(b) advice about ways of avoiding or minimising the impact of the development on the heritage significance of the place or object.
(3) Without limiting subsection (2), the advice may set out proposed conditions on any approval of the development_, including conditions requiring compliance with 1 or more of the following:_
(a) if it is not reasonably practicable for the development to avoid harming the place or object - the reasonable steps that must be taken to minimise the extent of the harm;
(b) conservation requirements under applicable heritage guidelines;
(c) a conservation management plan approved by the council.
49. Guidance to the approach to construction of all legislation is contained in the ACT Legislation Act 2001. Relevantly, sections 139, 140, 141 and 146 state:
139 Interpretation best achieving Act's purpose
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) This section applies whether or not the Act's purpose is expressly stated in the Act.
Note The Human Rights Act 2004, s 30 (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.
1 The long title of an Act provides that it is an Act to give certain benefits to the holders of pensioner cards. Section 4 provides 'This Act applies to a holder of a pensioner card'. Section 22 provides that the commissioner may grant 'a person_' an exemption from payment of rates._ The Act does not contain a definition of 'person'. Section 22 must be read in the context of the Act as a whole so that the commissioner may only grant exemptions to people who are holders of pensioner cards.
2 The Drug Testing Regulation 2001 (made under the Drug Testing Act 2000 (hypothetical)), s 6 contains the following heading: 6 Corresponding law_ - Act, s 100, def **"**corresponding law"_
The heading indicates that the section has been made for the definition of corresponding law in the Drug Testing Act 2000, s 100.
3 Section 12 (1) of a subordinate law refers to 'a non-conviction order under the Crimes (Sentencing) Act 2005'. No other kind of order is mentioned in the section and the word 'order' is not otherwise defined in the subordinate law. Subsections (2), (4), (7) and (9) of the same section, which only refer to 'the order', are to be understood as referring to the order mentioned in s (1).
Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).
(1) In working out the meaning of an Act, material not forming part of the Act may be considered.
Note 1 See s 146 for the meaning of may and must .
Note 2 See s 126 and s 127 for material that is, or is not, part of an Act or statutory instrument.
Note 3 See s 142 for material that may be considered in working out the meaning of an Act or statutory instrument.
(2) In deciding whether material not forming part of an Act should be considered in working out the meaning of the Act, and the weight to be given to the material, the following matters must be taken into account:
(a) the desirability of being able to rely on the ordinary meaning of the Act, having regard to the purpose of the Act and the provisions of the Act read in the context of the Act as a whole;
(b) the undesirability of prolonging proceedings without compensating advantage;
(c) the accessibility of the material to the public.
(3) Subsection (2) does not limit the matters that may be taken into account.
(4) For subsection (2) (c), material in the register is taken to be accessible to the public.
Note The register is the ACT legislation register (see dict, pt 2, def register).
(1) In an Act or statutory instrument, the word "may", or a similar term, used in relation to a function indicates that the function may be exercised or not exercised, at discretion.
Note Function is defined in the dictionary, pt 1 to include authority, duty and power.
(2) In an Act or statutory instrument, the word "must", or a similar term, used in relation to a function indicates that the function is required to be exercised.
(3) This section is a determinative provision so far as it applies to an applicable law or an applicable provision_._
Note See s 5 for the meaning of determinative provisions, and s 6 for their displacement.
"applicable law" means an Act enacted, or statutory instrument made, after the application date_._
"applicable provision" means a provision inserted after the application date into an Act or statutory instrument that is not an applicable law_._
(a) for an Act, subordinate law or disallowable instrument - 1 January 2000; and
(b) for any other statutory instrument - 1 January 2006.
"inserted", for a provision, includes inserted in substitution for another provision.
50. It was agreed by the parties that the application turns on:
(a) interpretation of the provisions of the Act relating to the decision of the Council pursuant to section 40 of the Act to register (or not to register); and
(b) whether in doing so it has the power to define a place in a way that does not contain all of the area it has found to have heritage significance; and
(c) whether the requirements for the Council to consider issues other than heritage significance should comprise a separate stage after registration; or
(d) alternatively, may be exercised in such a way as to influence the form of the registration decision itself.
The contentions of the applicant and party joined
52. The applicant contended that the Northbourne Housing Precinct as a whole has heritage significance as defined by section 10 of the Act and:
In accordance with section 3A of the Act the Respondent must register to the fullest extent a place which has been nominated and which has heritage significance so as to maintain the potential for the ongoing conservation of the place.[22]
53. The applicant submitted that registration is a critical function of the Council under the Act, and that the only consideration at the stage of registration is heritage significance, that no other consideration required by the Act should influence the registration decision, and that, in effect, the Council has only two options: to register a place exactly as its boundary and extent had been defined at the time of nomination or provisional registration, or not to register the place at all.
54. The applicant recognised that the Act requires the Council to take other matters into account, but submitted that these find their expression through provisions of the Act other than registration. The applicant submitted that the representative sample was deficient and did not represent all relevant attributes of the heritage significance of the precinct.
55. The applicant contended that the correct or preferable decision in accordance with section 3A of the Act is to set aside the Council's decision under review and to substitute a decision to register the whole of the Northbourne Housing Precinct.[23]
56. The party joined also contended that the heritage significance of the entire precinct was not adequately demonstrated in the representative sample, and in doing so relied on the evidence of the applicant's expert witness and adopted parts of the applicant's statement of facts and contentions. [24]
...One of the tested schemes through this process was the retention of a "Representative Example" of each original housing type. This method of conservation was proven by our designers and conservation consultants to be detrimental to the clearly defined aspects of the site's cultural significance and strongly opposed as a misrepresentation of the scheme.
We write to you now to reiterate this stance, as the schemes original designers, that the methodology to retain only a representative sample of the Northbourne Housing Precinct does not retain the features intrinsic to the heritage significance of the place ...
58. The party joined also submitted[26] that the Council's rationale for a representative sample used in reaching the decision under review, namely:
The combination of buildings provides a representation of the original precinct. It does not constitute a 'precinct' as defined in the Heritage Act 2004 Dictionary due to fragmentation, expected development and encroachment of development
is contrary to the operation of the Act.[27]
59. The respondent rejected the applicant's interpretation[28] of section 3A of the Act and contended that the applicant's view misrepresents the requirements of section 3A, and that the section must be read in the context of the other provisions of the Act. The respondent contended that there is no mandatory obligation in making a registration decision under section 40, to register the entirety of the place the subject of the relevant nomination and/or provisional registration; that there is a discretion as to how much of any particular 'place' nominated for registration should be registered for the purposes of section 40; and that in the exercise of this discretion the Council may decide to register either the whole or part of the place so nominated, or a place of different extent than that nominated or provisionally registered. If this were not the case, the public comment provisions of the Act would be constrained, and the Council could not demonstrate it was balancing the multiple objectives required of it in the Act.[29]
60. The respondent submitted that the Act required all of its provisions to be read in conjunction, and therefore, the other requirements in the Act must be taken into account at the time of considering a decision as to registration. It was said that the decision of 19 November 2015 was, in all the circumstances, a proper exercise of the discretion vested in it under the Act.[30]
61. The respondent seeks an order that the decision under review be confirmed.[31]
62. The expert witness for the applicant, Mr Graeme Trickett, holds a Bachelor of Science in Architecture and Bachelor of Architecture from the University of Newcastle. He is a Fellow of the Australian Institute of Architects ('AIA'), and a registered architect. He has been a member and/or chair of several of the AIA ACT Chapter professional committees including the ACT chapter heritage committee and the National Heritage Committee and he chaired the National Heritage Taskforce. He tendered a detailed written report[32] in which he outlines his analysis of the spatial relationships underpinning the layout of the whole precinct, as well as the buildings and their arrangements into groups, and why he believes the entire precinct has heritage significance, particularly because of the particular spatial arrangements of the parts at several scales. Mr Trickett also provided a witness statement in reply to the statement of Mr Flannery.[33]
63. In evidence, Mr Trickett was taken to several points in his statement[34] in relation to the phrase "highly resolved site planning", which is also used in the statement of significance. He insisted that his several statements using this phrase referred to the whole precinct. Mr Trickett explained that particular geometric proportions appear to have been used at many scales, to design elements within each housing type, to position them relative to their neighbours, to arrange the groups relative to one another, and that these proportional principles also related to the design of the paving and spacing between the buildings as well as of the buildings themselves. In his oral evidence, and during the field inspection, he gave the particular example of the long rectilinear internal space within the total grouping of the courtyard housing (otherwise known as the garden flats)[35], only a part of which was included within the representative sample, as being based on the same geometric design principles.
64. In relation to the Owen Flats, Mr Trickett reiterated the view that "The one building cannot represent the relationship the five buildings have to the overall proportional framework of the total precinct plan" [36] and he referred to the diagram showing his analysis of the geometric proportions between the four blocks of the Owen Flats. [37]
65. Similarly, when he was asked about the groups of paired housing on the western side of Northbourne Avenue, north of the Owen Flats, Mr Trickett explained his conclusion[38] by reference to the diagrams[39] in his witness statement, showing that there was a consistent spatial arrangement of the two types of paired houses, and of the groups, with similar spatial arrangements of the spaces between them. Mr Trickett went on to explain that the spaces between the groups of paired houses was also based on the Radburn planning principles, in which there was a deliberate alternation of spaces provided for vehicles, with public and semi-private open spaces. The Radburn planning principles were later adopted at a suburb scale in various parts of Canberra (e.g. Curtin), but the Northbourne Avenue Housing precinct was the first example in Canberra.
66. Mr Trickett made similar comments about the bachelor flats and the maisonettes; namely that the small samples of these proposed for retention did not adequately represent their spatial arrangements.
67. Mr Trickett also explained that the same geometric proportions were evident in the layout of the entire precinct[40] and in its relationships to Northbourne Avenue, and that the architect, Sydney Ancher, was able to adjust the layout for various things happening on the site. He was unable to say whether the architect had used the geometric principles consciously or unconsciously.
68. In cross-examination, Mr Trickett was asked about the Visitor Information Centre which interrupts the precinct on the eastern side of Northbourne Avenue. He explained the background, in which that part of the precinct had been allocated to a visitor centre and so could not be incorporated into the housing precinct. He nevertheless insisted that the architect had worked around it, and had based his overall layout on the geometric design principles: "the proportions of the site or the location of each of these groups of buildings has taken that into account".[41]
69. Mr Trickett was also questioned about some of the differences of obligations on the Council under the Act, compared with members of the AIA (as individuals or in an organisational capacity), who may be assessing or nominating places for heritage registration. Mr Trickett conceded there were notable differences, in that the Act did not specifically refer to guidelines (such as the Burra Charter) used by the Institute, the AIA's heritage policies did not link to the Act or the ACT planning system and that organisations such as the AIA were not subject to the various requirements of the Act to consider other specified matters or to incorporate public comment into its deliberations.
70. In his witness statement in reply to Mr Flannery's witness statement Mr Trickett noted the reasons for decision[42] as including an aspect of the significance being compromised by introduced courtyard walls and other changes,[43] but argued that the Burra Charter addressed such introductions, and did not detract from the heritage significance of a place.[44] In any case, he argued, many of the altered elements were capable of being reinstated. He also took issue with the conclusion of the Council[45] that the spatial connections had been compromised. Mr Trickett considered that his analysis showed that the spatial relationships were intact, and could not be adequately represented by the proposed sample.[46]
71. Mr Trickett responded to claims in the witness statement of Mr Flannery[47] relating to a media release from the AIA, that the statement in question predated the decision under review, and that the position of the Institute was more properly taken from more recent correspondence which had consistently sought registration of the entire precinct.[48]
72. Mr Trickett took a different view from Mr Flannery on how the Burra Charter principles should be applied. Consistent with the general argument put by the applicant, he considered that the decision on significance should precede and be quite separate from any considerations of policy or management or other considerations.[49]
73. The party joined did not call any evidence. It relied on the evidence of Mr Trickett.
74. The witness for the respondent, Mr David Flannery, is Chair of the ACT Heritage Council. He was appointed as Chair on 2 March 2015. He was previously a council member for two years between 2003 and 2005. He holds professional qualifications in Architecture from the University of Sydney, and postgraduate qualifications in Architectural Conservation from the University of York. He is a Fellow of the AIA, a member of the Planning Institute of Australia, and a registered architect. He tendered a detailed written report[50] in which he outlined the functions, procedures and policies of the ACT Heritage Council, and explained the chronology, context and reasoning behind the decision under review. He also commented on the written evidence of Mr Trickett.[51]
75. Mr Flannery stated[52] that the Council's reasons for deciding not to register the entire precinct and to register 17 of the original buildings within the precinct to preserve the identified heritage significance were:
(a) the Northbourne Housing Precinct has heritage significance;
(b) there are active development pressures affecting its future; and
(c) the heritage significance of the overall Northbourne Housing Precinct has been compromised over the decades since it was designed and constructed with an impairment of the original through, among other things, the introduction of courtyard walls, loss of timber screens and pergolas.
76. The Council had made this decision after consulting with key stakeholders and following a series of broader public consultation processes. Mr Flannery stated[53] that the Council considered the spatial connections of the precinct as a whole have been compromised by the later northward movement of what was once the northern gateway to the city, which has detracted from the intactness of the subject housing group.
77. He also said[54] the Council believes that the representative sample provided the best representation of the aspects of identified heritage significance through inclusion of:
(a) two (2) towers (four storey bedsitter bachelor flats), one on each side of Northbourne Avenue, as a recognition of the architectural statement of gateway to the city;
(b) a group of nine (9) De Burgh Street pair houses as an intact group clustered around one of the De Burgh cul-de-sacs;
(c) at least one of each of the five types of buildings originally contained in the precinct demonstrating the application of Post-War International style architecture;
(d) relationships within and between the types of buildings and their arrangement in groups and inter-relationships within sub-precincts;
(e) the existing rectilinear planning layout and building siting arrangements including networks of pathways and a variety of common open spaces addressing Northbourne Avenue;
(f) the separation of vehicle and pedestrian movement and the restriction of vehicle access to secondary roads within the five buildings types; and
(g) examples of the landscape design of the precinct, including the early pattern of mature landscaping along Northbourne Avenue frontages and the common courtyards, rear streets and cul-de-sacs.
78. Mr Flannery said[55] the Council considered that a registration of any less than the 17 buildings together with the landscape elements and relationships within and between them would not have heritage significance, as the identified heritage significance of the precinct would not be sufficiently demonstrated and would not achieve conservation of heritage significance as required under section 3A of the Act.
79. Likewise, the Council did not consider it necessary that the registration included more than 17 buildings as that would not materially add to the heritage significance being conserved and it would be unlikely to withstand a test of the development pressures taking into account the Government's publicly stated position on the Northbourne Housing Precinct. In his evidence he told the Tribunal that he was referring to the Government's publicly stated position in two articles in the Canberra Times[56] dated 18 February 2015 'Andrew Barr criticises Heritage Council over Northbourne decision on run-down housing estate' and 21 May 2015 'Andrew Barr ready to fight over Northbourne Avenue demolitions'. He told the Tribunal that these articles had been talked about at the Heritage Council meetings. He described his understanding of the reported comments as "a direct threat to the ongoing preservation of any buildings on the site."[57]
80. Mr Flannery also referred to an earlier Canberra Times article 'Corridor of uncertainty: Northbourne gets heritage nod' dated 10 October 2014 and told the Tribunal:[58]
...the clear point I would like to make is that with all of this discussion there really was a direct threat coming from members of the government and in the case of the other executive, Emma Thomas particularly, those sorts of comments really put the wind up me and the council in that there was a threat that we were going to lose all or almost all of the precinct, the Northbourne housing precinct, that there was talk, clear talk that only one or two buildings at the most at this stage would be retained. There was some talk of a house museum in one of the towers but that's all they were going to keep. I had seen a number of concept drawings by firms of architects, Cox architecture in particular where --
What time are you talking about?---This is at the time I was just about to join the council. I had seen some of the documentation and it was at the time of the first full registration and it was clear at that stage that the government's objective was to demolish all or almost all of the precinct. The concern was, my concern was that there was never going to be an attitude coming from the government that all could be protected, that there had to be struck a medium position, otherwise we would lose the lot or almost all the buildings in the precinct.
81. Mr Flannery said that not only were the development applications very much alive at the time the Council was tasked with making this decision but, as required by the Act, the Council had to consider the comments received during the public consultation periods. Of the 39 comments received following the 18 September 2014 decision to provisionally register the entire precinct, 29 comments opposed the decision, whereas only three comments, one of which opposed the decision, were received in relation to the current registration. Mr Flannery told the Tribunal that, as well as the broad notification required under the Act, all of the respondents to the 18 September 2014 decision had been directly notified of the later decision. He described the response to the later decision as 'muted'.
82. The first DA originally sought the demolition and removal of the three bachelor flat buildings ('the Dickson Flats') and associated landscaping and a number of trees on blocks 40 and 41 section 6 Dickson. Upon notification of the DA the Council provided written advice on 29 July 2014 to ACTPLA requesting information to address why the upgrading of the buildings for adaptive re-use was not prudent and feasible, the associated works, the impact the works would have on precinct's significance and the comparative cost of upgrading compared to new buildings. This further information was provided on 10 August 2014. On 29 October 2014 the Council provided further advice to ACTPLA that the proposed demolition of the Dickson Flats will have a substantial detrimental impact on the heritage significance of the Northbourne Housing Precinct and if the demolition was to proceed there was no way of avoiding or minimising the impact of the demolition on the precinct. This letter then stated:[59]
With reference to section 61(3) of the Act, the Heritage Council would like the opportunity to seek further discussion with the Land Development Agency (LDA) to explore feasible and prudent alternatives to maximise the retention of the heritage significance of the Northbourne Housing Precinct in the context of the LDA's desire to achieve greater development on the site. This may include reconsideration of the 2010 Master Plan for the Northbourne Housing Precinct.
83. On 4 December 2014 further information was provided as 'a S 165 Amendment' for DA20142580 and the Council provided further advice to ACTPLA which superseded the advice given in the letter dated 29 October 2014. In this letter dated 12 December 2014 the Council advised ACTPLA that the proposed development is unlikely to detrimentally impact upon the heritage value of the place and in the notes endorsed on this advice referred to the Council's decision to provisionally register the whole precinct on 18 September 2014 and to the outcome of the public consultation in accordance with section 37 of the ACT. Relevantly this advice stated:[60]
In response to the public consultation, the Council is recommending a reduced boundary for the final Registration of the Precinct. In relation to Block 40 section 6 Dickson, the boundary recommended for the final registration includes only the northern block of flats and does not include the central and southern blocks of flats on that block.
In consideration of the boundary of the Precinct recommended for final registration of the Precinct, the Council does not object to the demolition of the central and southern blocks of flats proposed for demolition in DA 20145880. The Council understands that the northern block of flats will be conserved.
The Council seeks to continue discussions with the LDA on the location and form of future development within the area of the Precinct as shown in the provisional registration. The Council is hopeful that the discussions will lead to the Minister for Planning entering into a Heritage Agreement with the LDA on this future development.
84. On 17 December 2014 the DA 201425880 was partially approved and partially refused so as to exclude the northern most tower and regulated trees. When reconsideration of this decision was sought the Council gave advice on 3 February 2015 to ACTPLA. This advice, as well as the three written advices from the Council in relation to the original development application, were detailed in the reconsideration decision of 16 March 2015. The reconsideration decision approved, subject to conditions, the proposal for the demolition of southern and central blocks of flats and structures on Block 41, removal of other regulated trees; removal of associated landscaping and paving on Blocks 40 and 41.[61] The effect of this decision was that the northern most tower remained.
85. The second DA lodged on 9 June 2015 was for the demolition of all buildings on the site save for two of the towers, the northern most one on the Dickson side and the tower on the Lyneham side plus a group of nine paired houses backing on to De Burgh Street. Mr Flannery said that the Council provided advice and the heritage impact assessment on 30 June 2015 to ACTPLA that the proposed development will have a detrimental impact on the heritage values of the place and will have a significant adverse impact under section 124A of the Planning and Development Act 2007.[62] In the heritage impact assessment[63] the Council stated:
While the retention of these elements [the towers in Dickson and Lyneham and paired houses] is appreciated, the buildings being conserved do not correspond to the representative sample identified within the registration. The proposed demolition of the buildings within the Precinct will significantly impact upon the original layout and siting of the buildings types within the Precinct and will result in the loss of three of the five representative housing types evident in this Precinct.
The extent of demolition proposed by the current development application will significantly and irreversibly impact upon the significance of the Northbourne Housing Precinct and is not supported by the Council.
86. Mr Flannery told the Tribunal that at its meeting on 30 July 2015, which he had chaired, the Council considered the Northbourne Housing Precinct and:
agreed in principle to provisionally register a representative sample of the precinct with a revised boundary and directed the registered taskforce prepare a provisional registration citation. The final boundary will be subject to discussion with the LDA with the intention that the sample group will include examples of each of the five housing types and recognise any significant landscape components.[64]
87. Mr Flannery said that at that meeting there was discussion about the proposal and about taking forward discussions with the LDA. He said:
...the registered taskforce[65]and the Heritage Council were both keen that I, as their representative, go forward and a meeting be organised with the Land Development Agency to see if we could get them to amend their development application to a point where it matched the configuration of buildings that the council sought.[66]
88. After this meeting the registered taskforce and the Council had considered a new arrangement of buildings in a new representative sample and two site plans or concept plans were worked up ('Option 1' and 'Option 2').
89. On 14 August 2015 Mr Flannery, together with Ms Fiona Moore Acting Secretary of the Council and Mr Tony Carmichael, Executive Director, Strategic Planning of the Directorate Environmental and Planning Directorate, had met with the Chief Executive of the LDA, Mr David Dawes, and the Deputy Chief Executive, Mr Ben Ponton, to seek the LDA's agreement with the Council's draft Northbourne Housing Precinct Representative Sample. Mr Flannery said that the two site plans (referred to in the previous paragraph) were taken to the meeting and discussed. He was concerned about protecting the Garden Flats from overshadowing from a taller building being built to the north and favoured Option 2 which had the conserved Garden Flats on a corner of the bend in Karuah Street where there would be no future development to the north of that block.
90. Mr Flannery said he was given a verbal assurance at this meeting that the LDA would support this decision (for Option 2) and amend the current DA once provisional registration of the representative sample had been agreed by Council. On 3 September 2015 the Council provisionally registered the Northbourne Housing Precinct Representative Sample, Dickson and Lyneham and the second DA was subsequently amended to retain the provisionally registered buildings in accordance with the Council's decision.
91. The second DA had originally provided for the retention of 11 buildings and as the result of the agreement, the Representative Sample which was Option 2 secured the protection of an additional six buildings, bringing the total of buildings protected to 17 which included one of each of the five main building types.
92. He also said that when the Council's advice was sought in relation to the amended second DA the Council advised on 7 October 2015 that:
...the proposed development is unlikely to detrimentally impact upon the heritage values of the place subject to the consideration of the following concerns
The Council observes that demolition of existing pavement, fencing and landscaping is proposed within the curtilage of each of the building samplesection As such Council reiterates its previous advice of 30 June 2015 and requests the retention of the existing network of pathways and plantings within each building curtilage to reinforce the original planning layout and building siting arrangements.
93. Mr Flannery told the Tribunal the retention of existing network of pathways and plantings within each building and curtilage had been an issue of concern for the Council and that was why it was stated in this advice.
94. The provisional registration went through its public consultation stage. On 2 November 2015 the LDA prepared a further amended DA 201527481B. On 19 November 2015 the Council resolved to permanently register the provisional registration and on 24 November 2015 the Planning Minister, Mr Mick Gentleman, pursuant to section 162 of the Planning and Development Act 2007, conditionally approved DA 201527481B using ministerial call-in powers. The Minister's decision was subject to Conditions of Approval set out in Part 1 being satisfied which included[67]:
(iii) the network of footpaths and plantings within the curtilage of the registered heritage buildings to be retained or replaced...
95. Mr Flannery told the Tribunal that, as far as the Council was concerned the assurance that it had been given by the LDA was given full force and effect by the LDA and by the Minister's decision.
96. In relation to subsection 3A(2)(a) and (b) of the Act, Mr Flannery said the Council addressed these provisions when it made its decision on 19 November 2015; it was clearly aware of the threat to the site in terms of the live development applications and the extent of the demolition included in these applications and it was also aware of the government view as reported to be have been expressed by the Chief Minister. He said most of the site appeared to be under the threat of demolition. In terms of identifying all reasonable steps to be taken to minimise the extent of the harm[68] the Council's collaboration, negotiation and consultation with the Government's development arm, the LDA, was at the heart of the matter.[69]
97. In relation to subsection 3A(1)(b) of the Act Mr Flannery said in his view the Council has implemented a strategy which accommodates the maximisation of the community's ability to benefit from the place without affecting the ongoing conservation or anything that forms an important part of the heritage significance of the place. He said:[70]
The debate in this city amongst the community and the government has been long and sometimes very vexed and it's been - the best word to describe it would be polarised. There have been those in the community that have wanted all the buildings demolished because in their view, and we've seen some of the quotes[71], that the buildings are ugly and should be pulled down in total. On the other hand, there are those in the community that want all of the buildings protected into the future with no redevelopment at all. I think the Council's decision, at the end of the day, which we've been able to bring the LDA towards our position, and it's a mediated position admittedly, but I think it's the best of both worlds. We've been able to protect enough of the buildings on site. 17 out of 62 is a good quantum at the end of the day I feel, so it should placate those that don't want the buildings demolished in total yet at the same time it allows for the government to create some more up to date and modern building stock in that part of the city in line with its plans for the redevelopment of that rail corridor.
98. Mr Flannery said that the Council considered that registration of the full precinct was likely to result in further community discord and potential loss of all heritage values through a desire by the ACT Government to redevelop the entire precinct. The Council had worked within the ACT land planning and development system, taken into account heritage significance and engaged proactively with the key stakeholders. In this regard, notwithstanding the Council inviting the applicant to participate in detailed discussions in letters dated 9 September 2015 and 1 October 2015, the invitations were not accepted.
99. He variously described[72] the Council's decision 'as a mediated and agreed position for appropriate conservation and management of the place'; 'a pragmatic response to heritage significance and active development pressures, providing clarity and certainty for continued conservation outcomes into the future' and 'in accordance with the provisions of the Act, particularly section 3A and section 18.'
100. Under cross examination, while agreeing that retaining one of each of the building types did not show the siting arrangement of all of the buildings, he said that it showed the siting of each one that is included in the representative sample and that it also showed the relationship of each retained building to the other retained buildings in the formal notice. The strong rectilinear composition of buildings and spaces had been included in the representative sample; the buildings in the representative sample were still evidence of the original precinct showing that the buildings were aligned with each other rectilinearly. While not all spaces were retained in the representative sample, spaces were retained between the group of nine De Burgh paired houses and the group of four Garden Flats was retaining the arrangement of those buildings with one another. He said:
We have retained a representative sample which shows enough of the evidence of the former precinct to satisfy the need to keep enough evidence of this former precinct for future generations.[73]
101. When asked about the reference to the words 'all of which' in the statement of significance that 'all of which are included in the representative sample' Mr Flannery said these words referred to:
the component parts as listed above (in the Statement of Significance) that we've got five different building types. The siting arrangements, to the extent of the buildings being retained, are still evidence. Internal roads and service networks, there's still evidence retained.[74]
102. When it was put to Mr Flannery that the correct thing to do would have been to list the whole of the precinct in the final decision and then talk to the LDA about what was reasonably practicable, he said[75]:
The process that the Council has gone through to register this place has been in accordance with the Act and as it's been pointed out already in this inquiry, one of the key obligations of the council in administering the Act is to work closely with the planning and development system in this Territory and we have aligned our decision making not only with the significance of the building, but also with that obligation that we should work with the planning and development system of the Territory.
The council chose to align the two obligations that we've got under the legislation so we worked with the planning and development system in the Territory as we made the decision. We've actually gone through the processes of analysis of the heritage significance of the site, of the place, at length and we've looked at it very carefully. We've not only analysed the architectural significance but we've looked at the history, the social history of the site and the important role that the site has played in the planning of the city through the early use of the NCDC era. We've looked at that analysis very, very carefully and that's been undertaken at length.
103. In re-examination, when asked what he believed the outcome might have been if the Council had followed the path suggested by the applicant and deferred any discussions with the LDA until after the decision of 19 November 2015, he said:[76]
We would have not got the outcome that we've got in this instance. We would have had, I am sure, a quite ... violent reaction, a quite outspoken reaction ... which would have caused a very detrimental outcome to the retention of any buildings on this site.
(a) Statutory Interpretation of the provisions of the Act relating to the decision of the Council pursuant to section 40 of the Act.
104. The ambit of the dispute is essentially a statutory construction issue as to the proper construction of section 40 of the Act in the context of its antecedent provisions.
105. The Legislation Act 2001 ('the Legislation Act') provides clear guidance as to the approach to the construction of all legislation. In working out the meaning of an Act section 139 of the Legislation Act provides that the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation[77] whether or not the Act's purpose is expressly stated in the Act.[78] Section 140 of the Legislation Act states that in working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.
106. The respondent referred the Tribunal to the following statements in 'Statutory Interpretation in Australia'[79] by Pearce & Geddes:
The starting point to the understanding of any document is that it must be read in its entirety. A writer will not expect an audience to read only selected passages and will therefore make different passages dependent upon one another.
In the Australian Capital Territory, section 140 of the Legislation Act 2001 gives statutory recognition to the requirement of reading provisions in the context of the Act as a whole.
107. The central point of difference between the parties concerns the functions of the Heritage Council and whether they are prioritised in the Act. The applicant's position is that registration is a distinct point in the process and a distinct function of the Council; that there is only one consideration, namely heritage significance, and other considerations such as economic considerations are not appropriate at the time of registration.
108. The applicant supports these contentions by submitting that the object of the Act is to establish a system for the recognition, registration and conservation of places that have heritage significance and to provide a system integrated with land planning and development to consider development applications having regard to the heritage significance of places. The applicant urges the Tribunal not to ignore the carefully structured systems that the legislature has put in place, namely that the provision for the recognition of heritage significance is found in Part 4, heritage register; Part 6 registration of places and objects and Part 7 cancellation of registration of the Act. The provision for providing a system integrated with land planning and development is found in Part 10 (land development applications), Part 10A (tree damaging activity), Part 10B (permissions and approvals) and Part 15 (heritage agreements).
109. Relying on section 141 of the Legislation Act which provides that in working out the meaning of an Act, material not forming part of the Act may be considered, Mr Arthur took the Tribunal to the Explanatory Statements to the Heritage Legislation Amendment Bill 2013, and in particular paragraph 28 dealing with clause 40, new part 7A in the Third or Supplementary Explanatory Statement. Paragraph 28 states:
The Heritage Council has adopted the nationally accepted principle of separating the identification and registration of heritage places from decisions about their conservation and management. The model now proposed will enable the Council to continue to implement this practice, focussing their attention solely on heritage significance at the time of decisions about registration, but will allow scope for a broader perspective - from both the Council and the Minister - at the time of any proposed works or developments.
This is a clear statement which the Tribunal is entitled to regard as a definitive statement of the intention of the legislature in relation to the matters to be taken into account in the taking or making of a registration decision...[80]
111. The Council contends[81] there is no such obligation on the Council as sought by the applicant in [106] and [107] above as that would give primacy rather than equality over the balancing of the, at times, conflicting obligations that the Council has pursuant to section 3(a)(ii) of the Act to provide a system for the recognition, registration and conservation of places and objects that have cultural heritage significance and pursuant to section 3(e) of the Act to provide a system integrated with land planning and development to consider development applications having regard to their heritage significance.
112. Rather, the Council contends that in construing section 40 of the Act which requires the Council to make a decision about registration, the Tribunal should take account of the scheme of the legislation reflected by the long title of the Act, and the Act as a whole, and find:
on a fair reading of the Act, five obligations arise on the part of the Council - to respect:
(a) The system of recognition, registration and conservation of places having cultural heritage significance in subsection 3(a), subsection 3A(1)(a)(i), subsection 3(1)(b)(i) and (ii); subsection 3(2) (a) and (b) and subsection 18(a) and (b);
(b) The need to provide a system integrated with land planning and development to consider development applications in subsection 3(e), subsection 3A(1)(b)(i) and (ii) and subsection 18(c);
(c) Subject to the conditions there stated in subsection 3A(b), the need to maximise 'the community's ability to benefit from the places and objects' in contemplation for registration;
(d) Comments obtained during the process of public consultation about registration of a place or object in subsection 37(1) and (2) and section 38; and
(e) Any direction given by the Minister pursuant to subsection 39(1) and (2) and subsection 60(6)(b)'[82]
113. Mr Clynes contends, in relation to the applicant's submissions in relation to the use of the Explanatory Statement and the nationally accepted principle referred to:[83]
There is nothing in that point in that plainly it can be said that that's what the Heritage Council has done here. It has made a decision as to registration but it has not, at this point, got to the question of conservation management plans or statements of heritage significance or guidelines.
114. The Tribunal has carefully considered the competing contentions of both Counsel.
115. In considering Mr Arthur's contention the Tribunal notes subsection 141(2)(a) of the Legislation Act provides that in deciding whether material such as the Explanatory Statement should be considered in working out the meaning of the Act, and the weight to be given to the material, the Tribunal must take into account, inter alia, the desirability of being able to rely on the ordinary meaning of the Act, having regard to the purpose of the Act and the provisions of the Act read in the context of the Act as a whole.
116. The Tribunal rejects the applicant's submissions. It is satisfied having regard to the purpose of the Act as reflected by the long title and the relevant provisions of the Act in this matter, referred to in [111], read in the context of the Act as a whole, that the meaning of the Act is clear. The Tribunal is not satisfied that a need to resort to extrinsic material, such as the Explanatory Statement, has been established.
117. The Tribunal notes that the comments in the Explanatory Statement about the separation of the identification and registration of heritage places from decisions about their conservation and management were comments about a provision, a call-in power, which did not make it into the Act. Further these comments were an explanation as to the new part 7A which does not include section 40. Section 40 is in part 6.2 of the Act. The Tribunal is also not satisfied, for these reasons, that the comments are relevant.
118. The Tribunal accepts Mr Clynes' submission that the Council's decision is a decision about registration. It has not gotten to the question of conservation management plans or statements of heritage significance guidelines.
119. The Tribunal notes that the wording of subsection 3A(1) of the Act mandates the Council to exercise a function under this Act in a way that, as far as practicable, achieves both the conservation of places and objects with heritage significance and the maximisation of the community's ability to benefit from the places and objects without adversely affecting the ongoing conservation of the places and objects and anything that forms an important part of the heritage significance of the place or thing.
120. Subsection 3A(2), however, recognises that if the exercise of a function would result in harm to a place or object with heritage significance, the function may be exercised only if the entity or person exercising the function is satisfied that it is not reasonably practicable to exercise the function in a way that avoids the harm and identifies all reasonable steps that must be taken to minimise the extent of the harm.
121. The Tribunal is satisfied that the legislature has seen fit to empower the Council to weigh the competing considerations each against the other as is contemplated by subsections 3A(1) and (2) in the Act.
122. Further, the Tribunal notes the respondent's submissions and is satisfied that subsection 35(2)(a) of the Act recognises that the Council may be required from time to time to resolve complex issues in relation to a place provisionally registered and gives the right to seek an extension of time allocated for consideration of a place beyond provisional registration to final registration.
123. The Tribunal is satisfied on reading of the Act as a whole, that while it is structured as highlighted by Mr Arthur, it does not rank or prioritise the requirements imposed on the Council. The Tribunal agrees with Mr Clynes that upon a fair reading of the Act the five obligations referred to above[84] arise on the part of the Council.
124. There is no issue that the Council has an obligation (the first obligation identified by Mr Clynes) to respect the system of recognition and conservation of places with cultural heritage significance. The Tribunal is satisfied from the evidence that the Council has met this obligation. While Mr Arthur contends that this is a primary focus for the Council, the Tribunal is not satisfied that this is borne out when the Act is read as a whole. Notwithstanding that the words 'heritage significance' are first mentioned at certain points in the Act, when the provisions of the Act are read in the context of the entire Act, the Tribunal is also not satisfied that an order of precedence is created in the Act.
125. In relation to the second, third and fourth obligations identified by Mr Clynes the Council is obliged, pursuant to section 18(c) of the Act, to work within the land planning and development system to achieve appropriate conservation of the ACT's natural and cultural heritage places and under the objects of the Act in subsection 3(e), to provide a system integrated with land planning and development to consider development applications. The Council is also obliged, subject to the conditions in subsection 3A(1)(b) of the Act, to maximise the community's ability to benefit from the places and objects without adversely affecting the ongoing conservation of the place or object and anything that forms an important part of the heritage significance of the place. Additionally the Council is obliged to notify the provisional registration decision and invite comments about the registration and to consider those comments in deciding whether to register a place or object.
126. The fifth obligation to pay proper regard to the direction of the Minister under sections 39 and 40(6)(b) of the Act was not a factor in this matter.
127. For these reasons the Tribunal rejects the applicant's contentions, which were supported by the party joined, that in identification of heritage significance, only heritage concerns are relevant.
128. It follows, for the reasons set out above, in relation to issues (c) and (d) that:
(a) the Tribunal is also not satisfied the requirements for the Council to consider issues other than heritage significance should comprise a separate stage after registration; and
(b) the Tribunal is satisfied the requirements for the Council to consider issues other than heritage significance may be exercised in such a way as to influence the form of the registration itself.
129. The Tribunal now turns to the remaining issue (b) does the Council have the power to define a place in a way that does not contain all of the area it has found to have heritage significance?
130. The applicant and the party joined contend that the Council does not have such a power. They contend that in accordance with section 3A of the Act the Council must register to the fullest extent a place that has been nominated and which has heritage significance so as to maintain the potential for the ongoing conservation of the place. The applicant and party joined also contend that while subsection 3A(2) limits the 'function' by the need to maximise the community's ability to benefit from a place so long as there is no adverse effect on anything that forms an important part of the heritage significance of the place, registration cannot harm the place and the identified heritage significance is to be conserved. The Council disagreed with these contentions.
131. It is true that the registration provisions, sections 32 and 40 of the Act, mandate the Council to decide whether or not to register a place and subsection 32(2) of the Act provides that the Council may only provisionally register a place if it is satisfied that the place has heritage significance. Mr Arthur submitted that:
...what isn't clear [about the provisions] is whether, having come to the conclusion that the place has heritage significance, the Council can, for other reasons, or simply because it couldn't be bothered, is it able to simply cease the process at that stage and move on? The answer is partly in the requirement that it must make a decision. It can't just not do anything. [85]
132. The applicant contends that in considering this issue neither the Legislation Act nor the registration provisions themselves provide a guide and the Tribunal, therefore, must decide the matter in the light of the purpose of the Act. [86] Mr Arthur referred the Tribunal to the decisions of the High Court in Project Blue Sky Inc v Australian Broadcast Authority[87] ('Project Blue Sky') and the NSW Supreme Court in In re The Municipal District of Lambton (No 2)[88]('Lambton') in relation to mandatory and discretionary powers. In Lambton a provision in the Local Government Act provided that the council may strike a levy and the court said where the public interest would be thwarted by not striking a levy, then it is obligatory on the council to strike a levy. The headnote in Lambton observes that when a statute directs the doing of a thing for the sake of justice or the public good, the word 'may' should be read as 'shall'.
133. The joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky observed in relation to mandatory and directive provisions in a statute in relation to determining validity:
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute.[89]
the primary purpose of the Act is plainly the recognition and registration of heritage significance. To this end the Council has a primary function to identify, assess, conserve and promote places with heritage significance, Not to register a place or part of a place which has heritage significance runs contrary to that purpose. [90]
135. Section 3A mandates that a function under the Act be exercised in a way that, as far as practicable, achieves both the conservation of places and objects with heritage significance; and the maximisation of the community's ability to benefit from the places and objects without adversely affecting the ongoing conservation of the places and objects and anything that forms an important part of the heritage significance of the place or thing. Subsection 3A(2) gives the Council a discretion, if exercising a function which would result in harm to a place or object, to only exercise the function if satisfied that it is not reasonably practicable to exercise the function in a way that avoids the harm and identifies all reasonable steps that must be taken to minimise the extent of the harm.
136. The Tribunal does not accept the applicant's and party joined's submission that pursuant to section 3A of the Act the Council must register to the fullest extent a place that has been nominated and which has heritage significance so as to maintain the potential for the ongoing conservation of the place.
137. The several provisions of the Act need to be read together. The Council's statutory obligation under section 40 of the Act is not solely or primarily determined by section 3A of the Act. The Tribunal concurs with the Council's contentions[91] that - the true extent of the statutory obligation upon the respondent when making a decision under section 40 to effect registration of a place or object for the purposes of the Heritage Act, can only be ascertained by an analysis of the whole of the Act including by reference to each of :
138. It is not in dispute that the Northbourne Housing Precinct as a whole has heritage significance as defined by section 10 of the Act.
139. However, this is not the only factor for the Council to consider. There are other factors to be considered when deciding to register a place or object under section 40 of the Act.
140. Having established that certain attributes of a place have heritage significance, the Council is required to exercise discretion as to whether, in the light of the other requirements of the legislation and the comments made during the public comment process, there are reasonable grounds to reconfigure the boundary and extent of the place as proposed at nomination or provisional registration, so as to better reflect the balance among the several requirements defined in the Act.
141. The Tribunal is not satisfied, having considered all of the evidence and submissions, that, on a proper construction of the Act there is a mandatory obligation on the Council under section 40 to register the entirety of the place the subject of nomination or provisional registration.
142. The Tribunal notes that one of the many balances expected of the Council in the several provisions of the Act is discretion about whether the degree of heritage significance is sufficient to meet the criteria. Since it is also the case that there may be spatial variability in the degree to which the criteria are met, and in many cases differences in which criteria might be evident in which parts of the place, it is fundamental that the Council exercise discretion about the most appropriate spatial extent of any place it has found to have heritage significance. It is of little relevance to this case whether the representative sample meets the definition of a precinct, as long as it meets the definition of a place in section 8 of the Act, which the Tribunal agrees it does.
143. The Tribunal agrees with the Council, that by reference to the matters in [134] above, the Council is at all times vested with a discretion as to how much of a particular place it should register for the purposes of section 40 of the Act. It follows that the Tribunal is satisfied that the Council may decide to register either the whole or a part of the place nominated.[92]
144. Section 68(2) of the ACT Civil and Administrative Tribunal Act 2008 provides for the purposes of these proceedings the Tribunal exercises the functions of the Council.
145. The Tribunal is satisfied that in coming to the correct or preferable decision it has to consider each of the obligations in [114] above and the relevant sections of the Act. Mr Clynes submits[93] and the Tribunal agrees when analysing and giving appropriate weighting to each of the five disparate obligations, the entirely proper conclusion is that the decision of 19 November 2015 to maintain the registration of the Representative Sample as foreshadowed by the provisional registration of those elements on 3 September 2015, is a legitimate and appropriate outcome.
146. The Tribunal accepts Mr Clynes' conclusions[94] that the Council's decision balances all of the factors so that:
(a) it achieves recognition, registration and conservation of 'places' being the Representative Sample as places having cultural heritage significance, albeit at a less comprehensive level than the applicant contends;
(b) it reflected the workings of a system integrated with land planning and development to consider development applications having regard to heritage significance of the places in question;
(c) it maximises the community's ability to benefit from the places by:
(i) conserving the 17 buildings as reflected in the Representative Sample in the manner contemplated in the decision of 19 November 2015; and
(ii) at the same time freeing up for development as contemplated by the government;
(d) it respects the comments obtained during public consultation; and
(e) it pays proper regard to the direction of the Minister under section 39 of the Act.
147. The Tribunal is satisfied and accepts Mr Clynes submission,[95] that pursuant to section 40(1)(a) and section 12 of the Act the Council made the decision to register the place by:
148. The Tribunal is satisfied that the registration details of 19 November 2015 are from the provisional registration of 3 September 2015. Apart from the addition of the words 'Heritage Assessment Policy' under 'Assessment Against the Heritage Significance Criteria' in the 19 November 2015 registration, the details are identical.
149. The Tribunal is further satisfied that the Council, in making its decision on 19 November 2015, took responsibility for its charter under the legislation. There was no evidence before the Tribunal that anything had occurred between the provisional registration on 3 September 2015 and final registration on 19 November 2015 which required it to vary the registration details.
150. The Tribunal is satisfied that the correct decision is to confirm the decision under review.
[1] Exhibit R8, Notifiable Instrument NI2015-660, 19 November 2015
[2] Exhibit R8, page 5 (statement of heritage significance) at [1]
[3] Block 1 section 12 Dickson adjoins block 4 section 2, but it faces Karuah and Dooring streets and does not have frontage onto Northbourne Avenue
[4] Notifiable Instrument NI2015-458, 18 September 2014, appended to the applicant's statement of facts and contentions ('ASFC')
[5] Exhibit R3, document 1; DA 201425880 was originally submitted on 03 July 2014, but was amended on 08 October 2014 and again 04 December 2015
[6] Exhibit R3 document 2 dated 29 July 2014, pages 2 and 3
[7] Exhibit R3, document 2, dated 29 July 2014, of 3 pages; the Council's response to the amendments to the first DA are at exhibit R3, document 3 (29 October 2014) and exhibit R3, document 4 (12 December 2014)
[8] Exhibit R3, document 4, pages 1 and 2
[10] National Trust of Australia (ACT) v ACT Heritage Council [2015] ACAT 52
[12] Exhibit R3, document 5; DA 201527481 was subsequently amended as DA 201527481S144A on 09 September 2015 and again on 30 October 2015
[13] Exhibit R3, document 6, dated 30 June 2015
[14] Witness Statement of David Flannery dated 11 March 2016 at [45]
[15] Notifiable instrument NI2015-516, 03 September 2015, appended to the ASFC
[16] Exhibit R3, document 7, dated 07 October 2015, of one page
[17] Exhibit R8, Notifiable Instrument NI2015-660 19 November 2015
[18] Exhibit R5, witness statement of Mr David Flannery, dated 11 March 2016, at [52] and [53]; exhibit R2, document 6, notice of decision under Part 7 of the Planning and Development Act 2007 DA 201527481, 24 November 2015
[20] Exhibit A2**,** undated, but agreed by the parties around the first day of the hearing and formally tendered as an exhibit on 31 March 2015
[21] There was disagreement as to whether the full precinct met criteria (c), (e), or (g), but that is of little consequence for the issues under review, since it is sufficient to enable registration for at least one criterion to have been met, and there is no requirement for several or all criteria to be satisfied
[24] Paragraphs 1-5 and 8-12 of the applicant's statement of facts and contentions
[25] PJSFC at [12]. The letter was not tabled in these proceedings and the recipient was not identified
[26] PJFSC at [10] - The quote in paragraph 10 of the PJSFC referred to the wording of the reasons for decision dated 3 September 2015, but practically identical words were also used in the decision under review (in the description of the place, at the bottom of page 4 of the notifiable instrument), so the point made by the party joined is still relevant
[28] As outlined in the ASFC at [10], and quoted at [51] of this decision
[29] Respondent's amended statement of facts and contentions, 30 May 2016 at [10(c)]
[30] Respondent's amended statement of facts and Contentions at [13]
[31] Respondent's amended statement of facts and contentions at [13(b)]
[32] Exhibit A4, witness statement of Mr Graeme Trickett, dated 5 February 2015
[33] Exhibit A3, witness statement in reply of Mr Graeme Trickett, dated 18 March 2015
[41] Transcript of Proceedings 30 March 2016, page 64, lines 40-42
[50] Exhibit R5, witness statement of Mr David Flannery, dated 11 March 2016
[52] At [61] of his witness statement
[53] Witness Statement of David Flannery at [63]
[54] Witness Statement of David Flannery at [64]
[55] Witness Statement of David Flannery at [67]-[68]
[57] Transcript of Proceedings 30 March 2016 page 98, lines 10-11
[58] Transcript of Proceedings 30 March 2016 page 99, lines 14 - 32
[61] Exhibit R2, document 5, attachment A
[62] A significant adverse environmental impact
[63] Exhibit R2, document 6, pages 4 and 5
[64] Transcript of Proceedings 31 March 2016 page 112, lines 25-31
[65] Being a subcommittee of members of council
[66] Transcript of Proceedings 31 March 2016 page 113, lines 2-5
[68] As required by sections 18(c) and 3A
[69] Transcript of Proceedings 31 March 2016 page 125, lines 32-33
[70] Transcript of Proceedings 31 March 2016 page 125, lines 41-45 and page 126, lines 1-11
[71] In the public consultation submissions - Exhibit R7
[72] Witness Statement of David Flannery at [71]-[73]
[73] Transcript of Proceedings 31 March 2016 page 133, lines 9-11
[74] Transcript of Proceedings 31 March 2016 page 133, lines 19-22
[75] Transcript of Proceedings 31 March 2016 page 134, lines 40 -45; page 135 lines 1-5 and lines 28-32
[76] Transcript of Proceedings 31 March 2016 page138, lines 27-32
[79] 7th ed. page 116 at [4.2] and page 118 at [4.3]
[80] Transcript of Proceedings 31 March 2016 page 165, lines 13 - 16
[81] Respondent's closing submissions at [1.5]
[82] Respondent's closing submissions at [4.1]
[83] Transcript of Proceedings 31 March 2016 page 175, lines 36 - 40
[85] Transcript of Proceedings 31 March 2016 page 152, lines 32-37
[86] Applicant's outline of submissions on statutory construction, page 1
[87] (1998) HCA 28, 194 CLR 355 at [91] - [93]
[89] Tasker v Fullwood [1978] 1 NSWLR 20, 24 at [93]
[90] Applicant's outline of submissions on statutory construction, page 1
[93] Respondent's closing submissions at [6.1]
[94] Respondent's closing submissions at [6.2]
[95] Respondent's closing submissions at [7.4]
NATIONAL TRUST of AUSTRALIA (ACT)
ACT HERITAGE COUNCIL & ANOR
(1998) 194 CLR 355