Rajendran v Tonkin [2002] VSC 585

Supreme Court of Victoria|2002-12-20|Before: SMITH J

Historic Buildings - registered building - application for permit to demolish part - relevant considerations. Judicial Review - apprehended bias - failure to consider relevant matters - refusal to allow evidence to be adduced.

The applicants, Adrian Rajendran and Maria Joanne Rajendran, have brought proceedings by order nisi and by originating motion seeking judicial review of a decision of the Permit Committee of the Heritage Council handed down on 25 June 2002. In its decision the Committee confirmed the decision of the first respondent, Mr Tonkin, the executive director of the Council, not to grant a permit for redevelopment of a property on the Victorian Heritage Register known as the former Robin Boyd house at 664-666 Riversdale Road Camberwell.

The present proceedings have been brought against Mr Tonkin, the Council and the Permit Committee members.

I do not propose to detail the history of the design and building of the Robin Boyd house, its ownership and use, and the earlier history of dealings between the applicants, Mr Tonkin and the Heritage Council. These are, to a very large extent, set out in the reasons for judgment of Balmford J in the matter of Tonkin v Rajendran.[1] In that case, Mr Tonkin sought orders for restoration of parts of the premises.

The heritage significance of the Robin Boyd house was described in a "Statement of Significance" noted at the time the property was registered. That statement was as follows:

"The former Robin Boyd house at 664-666 Riversdale Road, Camberwell (previously known as 158 Riversdale Road) was built in 1946-7. It has historical and architectural significance for the following reasons: the house is the earliest known extant residence designed by the renowned Australian architect Robin Boyd. It is unique in being a house that Boyd designed for his personal use and occupied and extended over a period of twelve years. This strong association with Boyd is particularly significant because Boyd was an important architect and a prominent social critic and commentator. He played a major role in the development of architecture and architectural thinking in Victoria for four decades. The house through its alteration is important in that it demonstrates the architectural development of Robin Boyd, from the early period of his career in the 1940s when he expounded his Theories on 'Victorian Regionalism', to the emerging 'internationalism' of the 1950s the building is a seminal work which can be regarded as the prototype of the post war modern Victorian house. It extended the leading architecture of its time and strongly influenced an emerging group of architects the house is of architectural significance in that it demonstrates innovative design with regard to response to site, informality in planning, flowing spatial arrangements, innovative use of materials and incorporation of built-in features. These are all aspects of domestic design which have now become common."[2]

The italicised passage refers to extensions added by Robin Boyd in 1952 to the north and south of the 1947 structure.

For the purpose of this application, it is sufficient to note that on 2 October 2001 Mrs Rajendran lodged an application for a permit for extensions to the Robin Boyd house which involved amongst other things the demolition of extensions added to the original house in 1952. It also involved the erection of extensive new buildings to be connected to the original house.

The application was considered but refused by the Executive Director, Mr Tonkin on 29 January 2002. In his reasons he stated the following:

"1. It is considered that the 1952 extension is an integral component of the significance of the registered place for a number of reasons including the following: * it was designed by Robin Boyd for his family's use, * it illustrates his philosophy at the time regarding planning small homes for growth, * it illustrates his interest in new technology to overcome the problems associated with difficult ground conditions. Demolition of this component is assessed as having a high degree of adverse effect on the heritage significance of the registered place. 2. From the information provided the proposed extension would tend to subsume the former Robin Boyd house. It would be out of scale with the registered building and have an adverse visual effect on the setting of the registered place. 3. The proposal is not supported ahead of the retention and reinstatement of the 1952 extension."

As to paragraph 3, it should be noted that, at the time Mr Tonkin handed down his decision, the situation was that the plaintiffs had removed the roof from portion of the 1952 extension, which actions gave rise to the proceeding before Balmford J.

On 14 February 2002 Mrs Rajendran appealed to the Heritage Council from the decision of Mr Tonkin. This was done pursuant to s 75 of the Heritage Act 1995. The matter came on for hearing before a Permit Committee of the Heritage Council on 23 May 2002. It was adjourned for further hearing to 20 June 2002. As noted above, on 25 June 2002 the Committee confirmed the decision of the Executive Director to refuse the permit application.

The applicants in their order nisi and originating motion have sought to raise a number of issues.

For example, the applicants criticised the Committee for saying that

"For the appeal to succeed the Committee would need to be persuaded that the development proposed in its entirety should be permitted."[3]

Counsel for the applicants submitted that the Committee should have viewed the application as an ambit claim and have considered specifically whether a permit should have been granted to permit demolition of the northern section of the 1952 extension - the section from which the roof had been removed by the applicants. As I understand what occurred, the Committee was not asked to proceed in that way and was correct in its view that it had to consider the application before it as presented which was to consider whether a permit should be given for the development proposed - in its entirety. This posed a problem for the applicants because of the large scale of the proposed development compared with the scale of what it was proposed to leave of the Robin Boyd house - namely the original 1947 structure.

In the end, the issues raised by the applicants which it is necessary to consider are the following:-

1. Whether the Chairman of the Committee should have disqualified himself on the grounds of apprehended bias.

2. Whether the applicants had been denied a fair hearing because they were not permitted to call evidence concerning the degree of heritage significance attaching to the 1952 extensions.

3. Whether the Committee took the view that it was not open to it to consider the issue of the degree of heritage significance other than that described in the Statement of Significance and, if so, whether that constituted an error of law.

Counsel who appeared for the applicants before the Committee, Mr Porter, raised at the outset of the Committee hearing an issue of apprehended bias directed to all members of the Committee. So far as is relevant to these proceedings, it is relevant to refer only to the application directed to the Chairman. This related to the Chairman's connections with the National Trust.

Counsel relied on the "apprehension of bias" principle and referred the Committee to Ebner v Official Trustee in Bankruptcy[4]. He submitted that the Executive Director, who was a party to the appeal relied, in materials he had placed before the Committee, in part on the fact of support for his decision from the National Trust. Counsel then commented on the fact that the Chairman had been the President of the National Trust of Australia (Victoria) and invited the Chairman to indicate the extent of his association with the National Trust.

The Chairman took up the invitation of Mr Porter and in substance said that his involvement in the National Trust was common knowledge and referred to his entry in Who's Who in Australia which included the following:

"Emeritus President, National Trust Aust. Vic. since 2000; current Member, Emeritus Council, National Trust Aust. (Vic.); Honorary Member, since 1999; Vice President, 1992-8 and 1985-6; President 1987-1992; Deputy Chairman 1986-87; Trust Council, 1982-1997; Board Member, Australian Council, National Trust, 1987-1997."

The Chairman stated that the National Trust was not a party to the appeal and that he did not intend to disqualify himself. Counsel for the applicants submitted that, whether the National Trust was a party or not, it had lodged an objection to the proposal and the objection was an attachment to the submissions of the Executive Director. He further submitted that the National Trust had directly involved itself in the consideration of all applications made by the appellants in respect of the heritage place and it did not matter whether it was a party. He repeated that the Executive Director was relying on the objection of the National Trust. The Committee retired to consider the issue. On its return, the Chairman announced that they had decided that no-one needed to disqualify himself on the grounds of apprehended bias.

In Ebner v Official Trustee in Bankruptcy[5], the High Court re-emphasised the fundamental importance of judges being independent and impartial both in reality and in appearance[6]. It also noted that as a matter of principle:

"There is no reason to limit the concept of interest (in the outcome of a proceeding) to financial interests, and there may be cases where an indirect interest is at least as destructive of the appearance of impartiality as a direct interest.[7]

The majority went on to refer to Pinochet No 2[8] as an example where concepts of interest and association can overlap.[9] After referring to the fact that a variety of forms of association might occur, for example, between a judge and a bank it emphasised the need to articulate the connection before apprehended bias can be established. The majority stated[10]:

"As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an 'association' will not suffice to answer the relevant question. Having a mortgage with a bank, or knowing a party's lawyer, may (and in many cases will) have no logical connection with the disposition of the case on its merits."

I accept that these principles apply in the present case to the Committee and its members as does the test of apprehended bias stated by the majority of the High Court in Ebner[11] namely:

"... whether a fairminded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide."

Counsel for the applicants relied on these principles and submitted further that the case was analagous with R v Bow Street Stipendary Magistrate and Others, Ex parte Pinochet Ugarte (No 2)[12] where the House of Lords held that Lord Hoffman was disqualified from hearing an appeal on the grounds of apprehended bias because of his association as unpaid director and chairman of a subsidiary, AIC Ltd., controlled by, and involved in the work of Amnesty International. The House of Lords treated Lord Hoffman's position as being that of a judge who was judge in his own cause. In the present case, counsel for the applicant submitted that the Chairman's long involvement with the National Trust at the highest level pointed to a close association with the National Trust, a body which while not a party to the proceeding was nonetheless known to the Committee to be supporting the position of the Executive Director.

It was submitted for the respondents that a fairminded lay observed would not reasonably apprehend that the Chairman might not, as a matter of real and not remote possibility, bring an impartial mind to the resolution of the appeal. It was argued that there was no suggestion that he had any interest in the outcome of the appeal but was merely associated with a party that had made submissions opposing the application. Counsel submitted that the applicants had not sufficiently articulated how the association, as a real not remote possibility, might have diverted the Chairman from deciding the appeal on its merits. It was further submitted that there was no reason to believe that the Chairman held the same views as the National Trust on the merits of the appeal and that neither he nor the National Trust could obtain any sort of benefit from a refusal of the appeal.

As is pointed out in the authorities, benefit is not the only issue. The National Trust in this instance was supporting the decision being challenged on appeal. It would be apparent to a fairminded lay observer that the Committee would have been aware that it was the wish of the National Trust that the appeal be dismissed and that the Chairman had for many years been active at a senior level in the National Trust and was likely to share its views.

It was also submitted for the respondents that the only interest the National Trust had in the Boyd house was an interest in the protection of those aspects it considered of heritage value. It was argued that this was a matter that the Heritage Council was obliged to consider in determining the appeal and something, therefore, that the Committee had to consider[13].

This submission is correct up to a point. The problem is, however, that the Heritage Act requires the consideration of matters which support arguments against protecting the heritage value. Section 73 provides in relation to applications to the Executive Director as follows:

"73. Matters to be considered in determining applications (1) In determining an application for a permit, the Executive Director must consider - (a) the extent to which the application, if approved, would affect the cultural heritage significance of the registered place or object; and (b) the extent to which the application, if refused, would affect the reasonable or economic use of the registered place or object, or cause undue financial hardship to the owner in relation to that place or object; and ..."

It was common ground that the s 73 matters had to be considered in an appeal to a Committee of the Heritage Council from a decision of the Executive Director in relation to an application for a permit.

Finally, and this was the principal argument advanced for the respondents, it was put that the "apprehended bias" principle must be considered in the context of the statute concerned; for the statute shapes the content and extent of the principle in particular cases.

Counsel argued that the Act contemplates that persons with associations with the National Trust "may be involved in such appeals". In support of this argument, counsel referred to s 7 of the Act which sets out the constitution and membership of the Heritage Council. It provides that there should be ten members and one of those ten must be appointed on the nomination of the Minister from a list of three names submitted by the National Trust of Australia (Victoria)[14]. Reference was also made to the requirement that three members must have demonstrated "understanding expertise or interest in Victoria' heritage or in the management of heritage places".[15] Counsel also noted that s 69 of the Act envisages that any person may make submissions in respect of a permit application and that must, he argued, include the National Trust. Finally, counsel noted that s 76 of the Act requires the Heritage Council to conduct a hearing into an appeal if requested by the National Trust and must give the Trust an opportunity to be heard at any hearing it requests.

It was submitted, in light of the above provisions, that the statutory scheme envisaged that the Council would have as its members persons who were members of the National Trust and that it was envisaged that all members would be able to perform all functions. It was put that it must, therefore, have been the legislative intention that National Trust members participate in all the Heritage Council activities including the hearing of appeals.

Counsel's attention was drawn to s 12 of the Act which permits the Heritage Council to delegate its functions to members of committees. In response, counsel pointed out that at the relevant time, the Council had delegated the appeals function to all members[16]. I note, however, that of the some 11 committees, only two involved delegations to all members. The other delegations ranged from one member to seven of the ten members. It was common ground that the selection of the committee to hear an appeal was made by the Chairman of the Council, Ms Heggen. Thus the legislation also envisaged that if a National Trust member was on the Heritage Council, he or she would not necessarily be involved in all activities and decisions.

The respondents do not argue necessity. Rather, in essence, the statutory argument is that the legislation envisaged that some at least of the Heritage Council could and would be members of the National Trust. It does not follow from that, however, that a member of the Council, who is a member of the National Trust, is, therefore, entitled to sit on an appeal where the National Trust has been involved in supporting one of the parties to the appeal. There is nothing in the Act which on its face purports in any way to modify the common law rules relating to apprehended bias and natural justice. The power to delegate enables the Council to set up committees to hear appeals with members who do not have any association with any of the parties.[17] Further, it seems to me that there is a strong case for saying that when a person is appointed to the Heritage Council that person should cease to be a member of, or have any connection with, any organisation which may have an interest in the outcome of any matters that come before it particularly registration applications or permit appeals.

Returning to the question in issue, I am satisfied that there was more than a bare association between the Chairman and The National Trust. He had obviously been closely involved at a high level in the Trusts' affairs and was likely therefore, to have over the years strongly identified with it and its objectives and causes. A fair minded observer, would be aware that the Trust was supporting the Executive Director in the appeal before the Committee. In those circumstances, a fair minded observer would reasonably apprehend that the Chairman might not bring an impartial mind to the resolution of the matter.

If I be wrong in my analysis, there is a further matter to consider and that is the Committee's own reasons for dismissing the objection. It supplied to the applicants and other interested parties prompt, detailed, closely argued and comprehensive reasons.

In dismissing the objection to the Chairman, the Committee stated that:

". . . the Committee considered that having regard to the purposes, provisions and structure of the Heritage Act 1995, there was no basis for a requirement that Heritage Council members should not take part in the consideration and determination of the permit appeal, nor any ground for a reasonable apprehension of bias."

"The Committee as it was carrying out its functions under the Act could, under s 11(1), have consulted with the National Trust had it wished to do so. The first main purpose of the Heritage Act is 'to provide for the protection and conservation of places and objects of cultural heritage significance and the registration of such places and objects (s 1).' The Heritage Council is established for that purpose and carries out its functions under the Act for that purpose. The mission of the National Trust coincides with the main purpose of the Heritage Act, which in turn makes provision for the National Trust to have a unique role in the processes which it contains to achieve its purposes."

"Experience and understanding of Victoria's heritage and in the management of heritage places gained through membership of the Council of the National Trust is a qualification for membership of the Heritage Council, not a disqualification."

It then returned to its original point, namely, a similarity of purposes stating:

"An association with the National Trust does not bring into play purposes or objectives other than those which the Heritage Council itself has under the Act. An association with a body which seeks the conservation of Victoria's heritage could not give rise to a reasonable apprehension of bias on the part of a member of the Heritage Council when he discharges functions under the Heritage Act, including the hearing and determination of a Permit Appeal under s 75 and 76."

Thus the Committee appears to have been of the view that because the Council's functions, purposes and objects were so aligned with those of the National Trust, the issue of apprehended bias did not arise. The Committee reasons, however, did not, in the context of this issue, address the fact that the Heritage Council, and its Permit Appeal Committees, are discharging statutory functions in which competing claims have to be determined being commonly, on the one hand, those of bodies such as the National Trust, and, on the other, applicants for permits. The Heritage Council and the Permit Appeal Committees, have to determine where to strike the balance between competing considerations. There was no express acknowledgment of this statutory role. Rather the Committee's perception of a close alignment between the objects and purposes of the Heritage Act, Heritage Council and the National Trust was emphasised. As a result, independently of any consideration of the association between the Chairman of the Committee and the National Trust, it appears to me, that a fairminded bystander on reading the Committee's own reasons, might reasonably apprehend that the Chairman (and the Committee) might not bring an impartial mind to the resolution of the appeal.

In considering this and other issues I have borne in mind, amongst other things, the cautionary words of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[18] about the need to avoid overzealous scrutiny of the words used by bodies such as the committee in making decisions. Care must also be taken not to attach too much significance to omissions in reasons. I am satisfied, however, that the foregoing is a fair analysis of the reasons advanced by the Committee.

I emphasise that nothing I have said should be construed as suggesting that there was any actual bias. I have regrettably, however, come to the conclusion that the case was one where the Chairman should have disqualified himself.[19] The justification offered by the Committee appears to me to have only exacerbated the situation.

For these reasons I am satisfied that the first challenge is made out.

The remaining issues are related. As noted above, the applicants allege they were denied a fair hearing because of their inability to call evidence going to the degree of heritage significance of the 1952 extensions. In addition, they argue that the Committee erred in law in proceeding on the basis that evidence should not be received as to the degree of heritage significance attaching to the 1952 extensions. The applicants argue that the reason the Committee refused to allow the calling of the above evidence was its view of the relevance of the issue to which it related.

So far as the evidence is concerned, counsel for the applicants wished to call Dr Goad, an architectural heritage expert, on the question of a cultural heritage significance of the 1952 extensions. The Committee in relation to that noted:

"The Committee was of the view that it could not reconsider the Statement of Significance."[20]

The Committee also stated that, it would not permit him to be called, no statement having been provided in accordance with its procedural protocol, and because of the issue to which Dr Goad was going to be asked to speak - the heritage significance of the 1952 extensions. I am satisfied, however, that if the procedural protocol had been satisfied, the Committee would not have permitted him to be called because it was of the view that it "could not reconsider the Statement of Significance".[21] For similar reasons, Mr Rippon, the architect who had prepared the details of the application for the permit, was not permitted to develop arguments

"directed at challenging the cultural heritage significance of the 1952 extension".[22]

I note as to Dr Goad's evidence, that he is an architectural historian who could give expert evidence about the work of Robin Boyd. It is not known what he would have said because he refused to provide a statement and refused to speak to the lawyers representing the applicants before giving evidence. It was for this reason that the applicants were unable to comply with the procedural protocol. Notwithstanding that they had not been able to confer with Dr Goad, the applicants wished to call him on the issue and permission was refused.

On 20 June 2000, the second day of the hearing, the Committee asked counsel for the applicants whether Dr Goad was being called as a witness. Enquiries were made as to his availability but he was not available and, in any event, the Committee's limitation remained as to the scope of the evidence he could give.

The first issue to consider is whether the Committee took the view that evidence should not be received as to the degree of heritage significance that attached to the 1952 extension and, if so, whether it erred in law in taking that approach.

Looking at the applicants' arguments before the Committee, they were put with a force and substance that did go to the question of whether the 1952 extensions had any significance. They were not seeking, however, to argue that the 1952 extensions should not have been placed on the register. The applicants sought to qualify or quantify the significance of the property and its parts, something not done by the Statement of Significance. A more detailed analysis might well have placed the property or parts of it in the highest echelons of cultural heritage significance. On the other hand, it may be that a further examination of the material, or additional evidence, would suggest that, while they were of sufficient cultural heritage significance to be placed on the register, they were not of major significance. I note also that a Conservation Management Plan developed by the Council prior to the hearing, accepted that there were degrees of significance and that, in this case, the structures were described as not of "exceptional significance" but of "considerable significance".[23]

Counsel for the respondents submitted that the applicants' challenge before this court was in effect a challenge to the decision on the merits. It was put that what the Committee in substance said was that, in the circumstances of the case, it was appropriate to accept the Statement of Significance as defining the matters of significance it had to consider.[24] In my view this was not the approach taken by the Committee and the applicant's challenge is not a challenge to the merits of the decision.

It is true that in considering the arguments on the issues referred to in s 73(1)(a), it stated that:

"It is appropriate to accept . . . as defining that significance the Statement of Significance which is set out above"[25]

It did so in addressing the applicant's arguments "to the extent that Mr Porter's submissions sought to challenge the cultural heritage of the registered place". It stated that it should proceed on the basis that it had heritage significance and that it was "appropriate" to accept the statements "defining that significance". The statement was made, however, in the context of its earlier statement in explaining its position on the calling of Dr Goad:

"The Committee was of the view that it could not reconsider the Statement of Significance."[26]

Later, the Committee took counsel to task saying that the submission attempted to separate the 1952 extensions from the 1947 house and to argue against the significance of the extensions when separately considered. The Committee took the view that this was incorrect in that the registered building was the house as extended. It concluded

"the Committee had no doubt as to the significance of the house as extended and did not regard it as legitimate to consider the extensions as if they stood apart as separate structures".[27]

In my view, the Committee proceeded on the basis that all were bound by the Statement of Significance and that the issue of the significance of the house and its extension could not be revisited.

The Committee appeared to give the Statement of Significance special status. The Statement of Significance is important. It apparently comes into existence with the nomination of a place or object for inclusion in the Heritage Register. The Executive Director, if he or she recommends to the Heritage Council that a place or object be included in the Heritage Register, must give a statement complying with s 34 to the owner of the place or object and other people. That statement has to be in writing and include "a brief statement of the cultural heritage significance of the place or object". I was informed that sometimes the Council in considering the application for registration will change the statement. Counsel were unable to direct me, however, to any statutory or regulatory provision which bound the Executive Director or the Permit Appeal Committee to the terms of that Statement in applying the provisions of s 73 of the Act. It plainly provides evidence, however, of the reasons why the building was placed on the Register.

Further, and in any event, what was being sought by the applicants was the opportunity to lead evidence concerning, inter alia, the degree of significance that attached, not to the whole building, but to the 1952 extensions and the 1947 building without them. An examination of the Statement of Significance reveals that the degree of significance attaching to these extensions was not in fact articulated in it. In addition, the Statement of Significance did not address the issue of the significance of the structure without the extensions. Thus the evidence sought to be led would not directly challenge the statement so much as add to it or qualify it.

Alternatively, if the Committee did not proceed on the basis that all were bound by the Statement of Significance but decided that it was not "appropriate" to consider the degree of significance of the extensions, it seems to me that it denied the appellant the opportunity to call evidence and make submissions as to the extent to which the application if approved would affect the cultural heritage significance of the registered place or object - that is, it denied that appellant the opportunity to address the first matter listed in s 73(1) of the Act as a matter that must be considered.

The application involved consideration of the 1952 extensions; for the permit application in part was to demolish those extensions. Therefore, it seems to me that it was necessary to consider the cultural heritage significance of the property with the extensions and without the extensions and only by doing that could a view be formed under s 73(1)(a) as to the extent to which the application, if approved would affect the cultural heritage significance of the registered place.

This is not the occasion to explore in detail the circumstances in which it would be appropriate, or not appropriate, to reconsider a Statement of Significance. It would be surprising, however, if it was intended to be the only material on heritage significance referred to in determining a permit application on appeal bearing in mind that any permit application will occur, after the registration of the premises. Many years could elapse and in that time there could be significant changes in the circumstances of the property, accepted views as to the significance of the history of premises, their architecture or of the architect concerned.

From a practical point of view, the Statement of Significance will normally be the starting point for any assessment of the significance of the premises at the time of any application and any applicant for a permit who wishes to suggest a redefinition of the significance would need to advance evidence and argument to suggest that something had been overlooked originally or had changed since the property went on the Register. Thus to allow parties seeking permits to revisit the Statement of Significance should not be a matter of major practical concern. In any event, as I have said, the Act requires the issue to be considered as at the date of the application for the permit.

One must be careful not to read too much into the reasons of the Committee. They are, however, as I have noted, detailed and obviously prepared with care. Viewed as a whole I am satisfied that the Committee was expressing the view that it should not entertain evidence that might in any way or to any degree qualify what appeared in the Statement of Significance. In my view, in taking this position the Committee erred in law. The Committee was obliged to allow the applicants to lead evidence as to the degrees of significance of the registered place, and any parts of it, the subject of the permit application, if they were to be heard on the issues raised by s 73(1) of the Act. As a result there was also a denial of natural justice that resulted from that error.

Anyone reading the material in this case would have great sympathy for the Committee. The applicants had largely ignored the protocols which the Council had put in place to enable the efficient handling of these matters and were seeking to re-open matters that had been considered previously to varying degrees. Further, the proposal, while put forward ostensibly to build on the Conservation Management Plan, largely ignored it. That plan had been prepared at the expense of the Heritage Council in an attempt to provide a practical solution to the issues that had arisen between the Executive Director and the applicants and which remained to be resolved. In all the circumstances, the Committee showed remarkable forbearance and patience in its handling of the matter. Nonetheless, I have come to the conclusion that, in its understandable efforts to bring some order and structure to the proceedings, it misdirected itself as to what matters should be considered.

For the above reasons I am satisfied that the three principal arguments of the applicant have been made out.

So far as discretionary matters are concerned, the respondents ultimately relied upon submissions that the applicants can always make another application before a different Committee and, therefore, will be no worse off if the relief sought is not granted. Counsel submitted further that it might be suggested that the applicants would be better off in starting again and complying with the protocols and presenting the matter in accordance with the protocols. A case would then be presented in a better and a more persuasive way.

I do not find this argument persuasive. What is suggested is that the applicants would not be disadvantaged in presenting the same application to another Committee in circumstances where the previous Committee's decision still stands. Forensically, they would obviously be seriously disadvantaged in that situation before the second Committee.

I have considered whether to grant the applications would be futile in the sense that the same result is likely. I am not persuaded, however, that a conclusion can be reached about the likely outcome of a reconsideration of the application on relevant issues and evidence.

Finally I note that the applicants have filed a further permit application which does not involve demolition of the 1952 extensions . This would appear to be an alternative to the present application should the present application, if re-heard, be unsuccessful.

I am satisfied that the Court's discretion should be exercised to quash the decision.

[17] In the respondent's written submission the argument was put higher than was put orally in suggesting that the statutory scheme would be frustrated without people with an association with the National Trust hearing appeals at which the National Trust itself made submissions. No evidence has been placed before me, however, that there has ever been a situation where so many members of the Heritage Council were members of the National Trust that it would not be possible to carry out appeals without having members of the National Trust involved.

[19] It is in fact very difficult to distinguish this case from the Pinochet case.

[24] If it is, then it came to that conclusion in ignorance of the evidence that could have been given by Dr Goad and Mr Rippon.

At a glance

Court

Decision date

Before

Source

Judgment (99 paragraphs)

Parties

Cases Cited (1)