Stamford Property Services Pty Ltd v Mulpha Australia Ltd

Court of Appeal (NSW)|2019-05-06|Before: Leeming JA, McCallum JA, Molesworth AJ

Background

There are no contested facts. The appellant, Stamford Property Services Pty Ltd, is the owner of land at the corner of Macquarie and Albert Streets in central Sydney, known as Lot 1, DP 839564. On the north-eastern corner of that land is a building known as the "Old Health Department Building". It stands on a small minority of the lot adjacent to the street corner. A more modern building has been erected on much of the balance of the lot. The evidence suggests that, internally, the hotel business which is conducted on the appellant's land (the main entrance to which is under the red awning on the photograph below) uses both buildings.

The text and syntax of section 57(1)

Section 57(1) of the Heritage Act 1977 (NSW) provides: "(1) When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3: (a) demolish the building or work, (b) damage or despoil the place, precinct or land, or any part of the place, precinct or land, (c) move, damage or destroy the relic or moveable object, (d) excavate any land for the purpose of exposing or moving the relic, (e) carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct, (f) alter the building, work, relic or moveable object, (g) display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct, (h) damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land."
The most important part of the statute is s 57(1)(e) itself, and the starting point is the parsing of that section together with the defined terms and the words which bear a relation to other key concepts from the statute. The section is quite complex, especially when it is read with the statutory definitions of "item" and "development".
Although it does not explicitly appear in s 57(1), the term "item" is central to that provision and to the Act as a whole. Section 4 provides that "item means a place, building, work, relic, moveable object or precinct". That definition is exhaustive. I have found it convenient to refer to the definition of "item" as comprising six things, which are distinct from the seven things (those six together with "land") in the opening words of s 57(1).
Each of "place", "relic" and "precinct" is likewise defined exhaustively in s 4: 1. "place means an area of land, with or without improvements"; 2. "relic means any deposit, artefact, object or material evidence that (a) relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement, and (b) is of State or local heritage significance"; 3. "precinct means an area, a part of an area, or any other part of the State".
"Building" is not in terms defined, but it is stated to include "a part of a building, a structure or a part of a structure" (hence the appropriateness of the reference to the Old Health Department Building and the more modern structure both as buildings, despite their being connected). "Work" is not defined in the Act.
"Area", which term is included in the definitions of relic and precinct, "has the same meaning as it has in the Local Government Act 1993". That in turn picks up (via the Dictionary to the Act and the process in Part 1 of Chapter 9) the method of identifying local government areas considered in Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government (2017) 224 LGERA 1; [2017] NSWCA 188.
Section 4 contains two definitions which relate to "development". First, it provides, once again, exhaustively, that: "development, in relation to land, means: (a) the erection of a building on that land, (b) the carrying out of a work in, on, over or under that land, (c) the use of that land or of a building or work on that land, and (d) the subdivision of that land, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition."
To anticipate what will follow, it may be seen that the four activities each bear a relationship to some land, and together exhaustively define "development".
It is also relevant to note that "harm" was defined similarly in s 4, namely: "harm means: (a) in relation to a building or work - demolish, or (b) in relation to a relic or moveable object - damage, despoil, move or alter, or (c) in relation to a place or precinct - damage, despoil or develop the land that comprises the place or is within the precinct or damage or destroy any tree or other vegetation on, or remove any tree or other vegetation from, the place or precinct."
Secondly, s 4(5) contains a series of paragraphs which guide how references to "development" and to the concepts which are defined to comprise it are to be understood elsewhere in the Act. The subsection provides: "(5) A reference in this Act to: (a) the erection of a building includes a reference to the rebuilding, enlargement or extension of a building or the placing or relocating of a building on land, (b) the alteration of a building or work is a reference to the making of changes to the internal or external fabric or appearance of that building or work whether or not involving: (i) the carrying out of structural work, or (ii) the repair or renovation, or the painting, plastering or other decoration, of that building or work, (c) the carrying out of a work includes a reference to the rebuilding, enlargement or extension of a work, (c1) a work includes a reference to any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act, (d) the subdivision of land is a reference to the subdivision of land as defined by section 4B of the Environmental Planning and Assessment Act 1979, (e) the demolition of a building or work is a reference to the damaging, defacing, destruction, pulling down or removal of that building or work, in whole or in part, and (f) the carrying out of development includes a reference to the erection of a building, the carrying out of a work, the use of land or of a building or work, or the subdivision of land, as the case may require."
Significantly, despite the references to "land" in s 57(1)(e) (once in the chapeau, thrice in the paragraph), indirectly in the definitions of "relic" and "precinct" and (repeatedly) "development", the term "land" is not itself defined. There is, as will be seen, good reason to take that course. "Land" is a term which is familiar in ordinary language, and which bears a number of quite distinct legal meanings. In Scully v Leichhardt Council (1994) 85 LGERA 109 at 110 Pearlman CJ noted that: "The word 'land' is a word of general meaning. It does not of itself suggest any specific limitation of size or measurement or any specifically identifiable area, such as is suggested by the word 'allotment'. It is necessary, then, to consider the context in which the word appears, and the scope and purpose of the relevant statutory provisions, in order to determine how the word 'land' is to be construed."
The primary judge cited that passage with approval. I respectfully agree with its aptness.
Bearing those definitions in mind, it is convenient at the outset to notice the following textual and structural features of s 57(1): 1. There is a twofold textual relationship between the chapeau (the opening words) of s 57(1) and the paragraphs which follow, which reflects the fact that the chapeau contains a main clause and a subordinate clause. The main clause (commencing "a person must not do ...") contains the prohibition. The subordinate clause (commencing "When an interim heritage order or listing ... ") specifies when the subsection applies. 2. The relationship between the prohibiting main clause and the paragraphs is explicit. The main clause prohibits a person from doing "any of the following things" without approval, and each of paragraphs (a)-(h) is one of those "following things". 3. The relationship between the subordinate clause and the paragraphs is more subtle. It focusses on the difference between the indefinite article in the chapeau and the definite article in the paragraphs which follow. 4. There are seven, rather than six, things listed in the subordinate clause with which subsection (1) commences. The first six (place, building, work, relic, moveable object and precinct) precisely correspond with the definition of "item". The seventh, "land", does not. Only when either an interim heritage order or a listing on the State Heritage Register "applies" to one or more of those seven things is the subsection to be engaged. Hence, one reads the paragraphs which follow bearing in mind the fact that an interim heritage order or a listing applies to one or more of those seven things. 5. All save one of the eight paragraphs in s 57(1) identify only some of the seven things to at least one of which either an interim heritage order or a listing on the State Heritage Register applies. The exception is paragraph (g), which identifies all seven. 6. In each case, one or more of the seven things identified in s 57(1) is, when it appears in one of the eight paragraphs, preceded by the definite article. 7. Save in the case of paragraphs (d) and (e), the reference to various of the seven things is preceded by the definite article "the". Thus "the building or work" in (a), "the place, precinct or land" in (b), "the relic or moveable object" in (c), "the building, work, relic or moveable object" in (f), and so on. Plainly enough, the definite article specifies "the" item or land picked up in the subordinate clause in the chapeau to which the interim heritage order or listing applies so as to engage the subsection. 8. The reason for writing at some length about the other paragraphs of s 57(1) is that in paragraphs (d) and (e) there is the potential for confusion, because the word "land" is used in an entirely different way. In those two paragraphs, "land" is not used to pick up the seventh thing in the subordinate clause in the chapeau which engages the subsection. Rather, "land" is used in order to frame the statutory prohibition. 9. The simpler example is paragraph (d): "excavate any land for the purpose of exposing or moving the relic". The operation of that paragraph is clear. One first identifies a relic which is the subject of an interim heritage order or a listing on the State Heritage Register, and then asks whether there is any excavation of "any land" with the proscribed purpose of exposing or moving "the" relic. It is clear that the reference to "any land" has no relationship to the possibility that "land" is one of the seven things identified in s 57(1). Rather, the necessary nexus with an interim heritage order or a listing on the State Heritage register comes exclusively through identification of "the" relic. 10. Paragraph (e) is more complex, but works in the same general way. It contains three references to land. As a matter of ordinary syntax the phrase "in relation to" applies distributively to each of those three references. That is to say, the syntactical structure of the paragraph is: "carry out any development in relation to: (i) the land on which the building, work or relic is situated, (ii) the land that comprises the place, or (iii) land within the precinct." When the complexity of the paragraph is understood in that way, it becomes plain that no differently from the other paragraphs, paragraph (e) requires attention first to be given to "the" building, work or relic, or "the" place, or "the" precinct, being five of the seven things which engage the operation of the subsection. (I am conscious of the absence of definite article in the words "land within the precinct" but that does not detract from the point, having regard to the fact that in each case the reference to land is subordinate to "the" building, work or relic, or "the" place, or "the" precinct.)
In short, s 57(1) invariably operates by identifying to which of the seven things listed in the opening words of s 57(1) the interim order or the listing applies, and then framing each of the prohibitions in paragraphs (a)-(h) by reference to that thing where it is relevant. Thus, if the listing applies to a moveable object, the prohibitions in paragraphs (c), (f) and (g) are relevant, so that a person must not (i) move, damage or destroy the object, (ii) alter the object or (iii) display any notice or advertisement on the object.
Relevantly for present purposes, paragraph (e) only is picked up by the prohibition where an interim heritage order or listing applies to a "building". Paragraph (e) is not picked up when an interim heritage order or listing applies to "land", even though there are three references to "land" in the paragraph.
I return to the provisions in s 4 dealing with "development". The prohibition in s 57(1)(e) fastens upon the carrying out of development. That term bears its defined meaning in s 4, and both parties entirely correctly observed that the defined term was "development". However, the definition was a limited one, insofar as the definition was only given where there was development in relation to some land. The same approach is adopted elsewhere in s 4 (see the (three) definitions of "harm" in relation to (i) a building or work, (ii) a relic or moveable object and (iii) a place or precinct) or the definition of "affected owner or occupier", which proceeds on the basis that there is an interim heritage order or a listing on the State Heritage Register (see below).
The significance of the definition of "development" contemplating a relationship with land is that when s 57(1)(e) picks up the defined term and seeks to apply it to five of the seven matters which engage the subsection, it is necessary, in relation to each of those five things, to identify the land which is going to be relevant to the proscribed development.

Other provisions bearing upon the construction of s 57

What is said below in relation to the remaining sections of the Act, and the parties' submissions, will perhaps be clearer if it is borne in mind that the listing which was gazetted on 9 October 2013 applies to two things: 1. the building known as the Old Health Department Building, and 2. the "curtilage or site" identified by reference to a plan in Schedule B.
That is to say the listing which is central to this appeal applies to a "building" and to some "land" (being the first and seventh of the things which engage the operation of the section). The building is an "item"; the site or curtilage is not.
The prohibitions in s 57(1) do not apply where there is an approval. Division 3 within Part 4 deals with applications for approval. Section 62 provides: "62 Matters for consideration In determining an application for approval in respect of an item or land, the approval body shall take into consideration: (a) the extent to which that application, if approved, would affect the significance of any item as an item of the environmental heritage, (b) the representations, if any, made with respect to that application under section 61 (3), (c) such matters relating to the conservation of that item or land as to it seem relevant, and (c1) any applicable conservation management plan (within the meaning of section 38A) endorsed by the Heritage Council, and (d) such other matters as to it seem relevant."
It will be seen that s 62 proceeds on the same assumption as s 57(1), namely, that a listing may apply either to an "item" or to "land".
The premise of s 57(1) is that either an interim heritage order or a listing on the State Heritage Register applies to one of the seven things mentioned in the subsection's opening words. It is of course necessary to construe s 57 in light of the provisions which confer powers the exercise of which causes s 57 to be engaged. Further, when dealing with the power actually exercised by the Minister that led to the gazettal, it will be seen how there came to be gazetted both a building and some land (being its curtilage or site).
The power to make an interim heritage order is found in Part 3. The power to make a listing is found in Part 3A.

Interim heritage orders under Part 3

Within Part 3, s 24(1) provides that: "The Minister may make an interim heritage order for a place, building, work, relic, moveable object or precinct that the Minister considers may, on further inquiry or investigation, be found to be of State or local heritage significance."
Section 25 authorises local councils to make interim heritage orders for items in the council's area. Section 25(2) extends to "a place, building, work, relic, moveable object or precinct". Thus both sections extend to all six things which comprise the definition of "item" but do not apply to "land".
Section 26 provides that there is no obligation to notify any person affected by the interim heritage order, while s 28 provides for notification of all persons who appear to the Minister or the council "to be an affected owner or occupier". Affected owners or occupies have a right of appeal under s 30, but in any event an interim heritage order can remain in force for no longer than 12 months.
Section 27 is the remaining provision in Part 3, and is of some significance. It provides: "27 Application of interim heritage orders to curtilage and site An interim heritage order made in respect of an item may be expressed to apply (and if so expressed does apply) to: (a) if the item is a building - the curtilage of that building or the site of that building, being the curtilage or site specified or described in the order, or (b) if the item is a work or a relic that is attached to or forms part of land - the site specified or described in the order for that work or relic."
Neither "curtilage" nor "site" is defined. However, the term "affected owner or occupier" is defined in s 4(1): "affected owner or occupier, in relation to an interim heritage order or to listing on the State Heritage Register, means: (a) in the case of an order or listing applicable to a place - the owner or any occupier of land that comprises the place, or (b) in the case of an order or listing applicable to a building, work or relic (being a relic that is attached to or forms part of land) - the owner or any occupier of land on which the building, work or relic is situated, or (c) in the case of an order or listing applicable to a relic that is not attached to or does not form part of land or is applicable to a moveable object - the owner of the relic or moveable object, or (d) in the case of an order or listing applicable to a precinct - the owners or occupiers of land in the precinct."

Listing on the State Heritage Register under Part 3A

Sections 31 and 32 deal with the State Heritage Register and the Minister's power to direct the listing of "items" upon it: "31 State Heritage Register to be kept by Heritage Council (1) There is to be a register called the State Heritage Register kept by the Heritage Council. The Register is to be kept in such form and manner as the Heritage Council determines. (2) Items can only be listed on or removed from the State Heritage Register at the direction of the Minister, as provided by this Part. 32 Minister can direct listing on State Heritage Register (1) The Minister may direct the listing on the State Heritage Register of a place, building, work, relic, moveable object or precinct that the Minister considers is of State heritage significance, but only if the Heritage Council has recommended that the item be listed and the Minister has considered the following: (a) the recommendation of the Heritage Council that the item should be listed, (b) whether the long-term conservation of the item is necessary, (c) whether the listing would render the item incapable of reasonable or economic use, (d) whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated. (2) The Heritage Council may make a recommendation to the Minister that an item be listed on the State Heritage Register at the request of the Minister, on the Heritage Council's own initiative or at the request of the owner of the item concerned or the council of the area in which the item is situated. (3) A listing in respect of an item can be expressed to apply (and if so expressed does apply) to: (a) if the item is a building - the curtilage of that building or the site of that building, being the curtilage or site specified or described in the listing, or (b) if the item is a work or a relic that is attached to or forms part of land - the site specified or described in the listing of that work or relic."
Listing may only occur after a notice of intention to do so is given by the Heritage Council "to each person that it considers to be an affected owner or occupier", providing an opportunity for submissions, which are to be considered before the Heritage Council decides to recommend the listing (subsections 33(1) and (2)). Subsection 33(4) provides: "Without limiting any other matter it may consider in determining whether to make a recommendation, the Heritage Council may consider the following (whether or not any submissions are made under subsection (2)): (a) whether the long-term conservation of the item is necessary, (b) whether the listing would render the item incapable of reasonable or economic use, (c) whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated."
Section 34 empowers the Minister to request a review of a recommended listing by the Independent Panning Commission, at which the following people are entitled (among others) to be heard: "an owner, mortgagee or lessee of land to which the proposed listing will apply or of land on which is situated the building, work or relic (being a relic that is attached to or forms part of land) that will be subject to the proposed listing": s 36(1)(a)."

The meaning of "land" where it first appears in s 57(1) following the six "items"

It will be seen that s 32(3)(a) corresponds with s 27(a), and s 32(3)(b) corresponds with s 27(b). Where there is the power to make either an interim heritage order or a listing in respect of an item which is a building, then by either s 27(a) or s 32(3)(a) there is power to express the listing to apply to the curtilage or site of that building as specified or described. The bracketed words in each section make it clear (probably out of an abundance of caution) that if so expressed, then the listing applies not merely to the building, but also to the curtilage or land so specified or described.
Quite a deal turns on those provisions.
First, they make it clear beyond argument that "building" and "land" are not used in their ordinary sense of the law of property. Buildings are part of the land. Thus, it ordinarily does not make sense to speak of the owner of land as opposed to the owner of a building. (The fact that for some artificial purpose - for example, depreciation for accounting or taxation purposes - one might speak of the separate assets of the land as opposed to the buildings is confirmatory of the ordinary position.) But the separate provision made in s 57(1) between buildings and land, corresponding with the separate provision made in s 27(a) and s 32(3)(a), makes it plain that the building is regarded as something separate from the land on which it is erected.
Secondly, these provisions give content to the otherwise unexplained disparity between the six things comprising the exhaustive definition of "item" and the seven things in the opening words of s 57(1). Land is not an item, and land cannot be listed on the State Heritage Register (save in the presently irrelevant sense that a precinct can be listed). But the opening words of s 57(1) make it clear that a listing can apply to "land" as well as to the six species of items. The way that comes about is through the exercise of the powers under s 27(a) or s 32(3)(a) to express the interim heritage order or listing to apply to the building's site or curtilage. (It may also come about through the similar power under s 27(b) or s 32(3)(b) in cases of a work or relic.)
Thirdly, the Minister in fact exercised the power in s 32(3)(a) at the time the Old Health Department building was listed. That is the force of Schedule B in the gazettal. Hence the listing applies to two of the seven things in s 57(1): the building in Schedule A (considered as a structure distinct from the land on which it is attached) and the land in Schedule B being the site or curtilage defined by reference to a plan.
Fourthly, insofar as the land in Schedule B is protected by the listing, it attracts the prohibitions in s 57(1)(b), (g) and (h). Those are the only three paragraphs in s 57(1) which are applicable to cases where s 57(1) applied because a listing applies to land. (To reiterate what was said in 28 and (10) above, s 57(1)(d) imposes a prohibition upon excavating "any land", but that prohibition is confined to excavations for a purpose related to a relic; accordingly, s 57(1)(d) only applies where an interim heritage order or listing applies to a relic. Further, s 57(1)(e) is replete with references to "land". However, as I have sought already to demonstrate, s 57(1)(e) only applies where an interim heritage order or listing applies to a building, work or relic, or place, or a precinct" - this is the force of "the building, work or relic is situated", "that comprises the place" and "within the precinct".)
This appeal turns on s 57(1)(e), and so the "land" (being the site or curtilage) to which the gazettal applies is not directly relevant. However, the reason for the extensive analysis of the two ways in which the gazettal is capable of applying is not merely academic. The fact that s 57 itself, and ss 27 and 32 with which s 57 is so closely connected, refer in such detail separately to buildings and the site or curtilage of buildings, is an important consideration in construing the problematic word in s 57(1)(e), "land". Section 57(1)(e) is complicated enough. There is little hope of giving legal meaning to the three uses of "land" in paragraph (e) without a clear understanding of the reference to "land" in the opening words of s 57(1).

Remaining provisions of the Act

The parties made reference to other provisions in the Act which bear upon "land", although these are more peripheral. Part 3B deals with heritage agreements, which are agreements between the owner of a listed item and the Minister with respect to the conservation of the item. A heritage agreement may include provisions relating to, inter alia: "the review of the valuation of the item or the land on which it is situated" and "the restriction on the use of the item or the land on which it is situated": s 40(c) and (d). By reason of s 45, the Minister can provide financial assistance out of the Heritage Incentive Fund to "the owner of an item or land that is the subject of a heritage agreement".
Part 6 deals with "Other measures for the conservation of the environmental heritage". Division 6 within the part is titled "Rating and taxing". That Division contains a definition of "land", albeit one that applies "in this Division", in s 123: "land includes stratum within the meaning of the Valuation of Land Act 1916". The Division introduces a concept of a "heritage valuation" which will supersede the ordinary valuation to be used by rating or taxing authorities (see s 127). Heritage valuation is defined in s 123: "heritage valuation, in relation to land, means a valuation of that land obtained by adding to or by deducting from a valuation for rating or taxing purposes of that land any allowance determined as a consequence of making the following assumptions with respect to that land, namely: (a) that that land may be used only for the purpose, if any, for which it was used at the relevant date, (b) that all improvements on that land as at the relevant date may be continued and maintained in order that the use of that land as referred to in paragraph (a) may be continued, (b1) that all improvements referred to in paragraph (b) on that land are new (without any deduction being made because of their actual condition), (c) that no improvements, other than those referred to in paragraph (b), may be made to or on that land, (d) that the cost of construction of improvements on that land has no effect on its land value, with the result that there is to be no reduction in land value because of any difference between the cost of construction of the improvements referred to in paragraph (b) as new improvements and the cost of construction of other improvements used as a basis for comparison in the determination of land value."
Section 125 requires a person who makes a valuation of land for rating or taxing purposes to make a heritage valuation "where that land is subject to a listing on the State Heritage Register".
Division 3 of Part 7 is headed "Offences". Section 156 makes it an offence, speaking generally, to breach any of the prohibitions in the Act. It was common ground that this extended to s 57. Section 157 provides that the maximum penalty is 10,000 penalty units or 6 months' imprisonment.

The meaning of "in relation to" in s 57(1)(e)

How do the definitions relating to "development" and "carrying out of development" apply to s 57(1)(e)? Some of Mulpha's written and oral submissions suggested that there was a choice between applying the definitions in s 4(1) as opposed to s 4(5)(f), upon which something turned. Naturally, the definition of "development" in s 4(1) is to be read harmoniously with the provision which is made in s 4(5)(f). It is evident that there is a close link between the two provisions. Each refers to the fourfold categorisation of the erection of a building, the carrying out of a work, the use of land or a building or work, and the subdivision of land. That is to say, the definitions constitute a useful abbreviation whereby four otherwise distinct activities (erecting a building, carrying out work, use and subdivision) are all picked up by the same terms. Paragraph 4(5)(f) makes it plain that more than one of the four activities may be applicable.
The principal difference between the definition of "development" in s 4(1) and the direction in s 4(5)(f) as to how references to "carrying out of development" are to be read is that the former makes explicit provision as to the relationship between each of the four classes of activities comprising development and land involved. The latter is expressed more abstractly, and refers for the most part only to the activities, unconnected with the land to which each relates (with the exception of subdivision, there is no mention of "land" in s 4(5)(f)).
But what is plain beyond argument is that "development" is a term which in this Act compendiously contains four distinct activities. This is the key to approaching the construction of s 57(1)(e).
It is for this reason that the term "development" is defined "in relation to land" in s 4(1). It will be seen that the use of the term "development" picks up (a) the erection of building on land, (b) the carrying out of a work in, on, over or under land, (c) the use of land or the use of a building or work on land or (d) the subdivision of land. The variety of prepositions emphasised in the previous sentence illustrates the range of relationships between the activities which are regulated and the land to which those activities relate. That range of relationships is comprehended in the general language "in relation to land" in the definition. It picks up each of those more precise relationships. (Were this not clear, the demonstrative pronoun "that" which recurs in each of the four limbs of the definition confirms that "that land" in each paragraph is the land in relation to which the development is being defined.)
At the level of text, s 57(1)(e) refers both to "carry out development" and "development in relation to the land". That textual consideration gives rise to the choice between the definitions in s 4(1) and s 4(5)(f). But it is to my mind perfectly plain how those definitions are to be applied once the careful structure of the definitions and of s 57(1) are borne in mind. The reference to carrying out development in s 57(1)(e) is not some abstract reference to development unconnected with land. It is the opposite of that. The basal structure of s 57(1) is to identify one of the seven things (an item or "land") and then apply the relevant paragraphs which relate to that thing. In the case of a listed building, the relevant paragraphs are (a), (e) and (g). The prohibition in paragraph (e) in its application to a listed building requires attention to be given to the "land on which the building is situated", and then the prohibition applies to all forms of carrying out of development in relation to that land.
The textual identicality between s 4(1) and s 57(1)(e) to "development in relation to the land" reflects the significance in the statutory scheme of the prohibitions turning upon the relationship of land to the relevant item (or land being the curtilage or site expressed in the listing) which is the subject of the listing which engages s 57(1) in the first place.
The analysis above shows that the Act has been quite precisely and carefully drafted. In particular, I have in mind the references to the six things which are defined exhaustively to be an "item" and the careful way in which elsewhere the Act refers to those six things and land in light of the power to make an interim heritage order or a listing apply to land. There is no reason to doubt that the words "in relation to" in s 57(1)(e) have been used because they are precisely the words employed in the definition of development in s 4(1). That is the natural way by which each of the four activities (erecting a building, carrying out a work, using land, and subdivision) may be picked up in the prohibition in s 57(1)(e).
Put differently, when s 4(1) expressly defined "development" by reference to the four activities each of which bears its own relationship to land, why would the words "development in relation to the land" in s 57(1)(e) not bear the same meaning, imposing a prohibition on each of the four activities insofar as each relates to the land in the ways defined? The identicality of language is striking. The evident purpose is in a single paragraph to prevent unapproved erections of buildings and carrying out of works and uses and subdivisions of land to land.
Mulpha's submission was to the contrary. It was put thus orally: "the means by which our learned friends come to their construction is really by transposing the words 'in relation to land' from the definition of 'development', and saying that 'development' only means development if it's used together with the words 'in relation to land'. So in other words, they've taken a definition and created a new definition. One can see that if one has regard to s 4(5)(f), and then transposing that to s 57, as we would have it, 'carry out any development' includes a reference to the erection of a building, the carrying out of a work, the use of land. We just say it says 57, (e) and (f) is the erection of a building in relation to the land on which the building is situated."
I disagree. It seems to me that the key to construing s 57(1)(e) read with the definitions pertaining to development is to observe that: 1. the point of the definitions was to extend the operation of the prohibition to the four classes of activities which are "development"; 2. each of those activities bears a relationship to land; and 3. the defined term uses more general words of connection, "in relation to", to comprehend all of the particular relationships with the land connoted by those four activities.
It follows that when the prohibition in s 57(1)(e) is unpacked so as to apply to the particular activities, the question is not whether activity is "in relation to" any land, but whether there is the erection of a building on the land, or the carrying out of a work in, on, over or under the land etc. There is no erroneous transposition. Rather, I respectfully consider that Stamford's construction respects the careful use of language in the statutory definitions.
The proposition can also be addressed conversely. In my view, it would be wrong to construe the words "in relation to" in s 57(1)(e) as though they were part of the prohibition imposed by s 57(1), rather than part of the defined term. They are to be construed in light of the fact that the statute defined development, in relation to land, in a very precise way. As Gageler J observed in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [77], a statutory definition is ordinarily framed in language chosen for the grammatical meaning it conveys. It is generally accepted that the proper course is to "read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome": Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103]. Sometimes qualifications are necessary: see Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [13]-[20] and [54]. But there is no occasion here to displace the conventional approach. When that is done, the words "in relation to" drop out.
As ever, it can be clearer to be concrete rather than abstract. How do these provisions apply to the particular gazettal published on 9 October 2013 and the particular development proposed by Stamford?
The relevant item is the listed building which is the Old Health Department Building, and there is no question of subdivision proposed by Stamford. Stamford proposes demolishing an existing building and erecting another, and then using the latter (as well as using the Old Health Department Building). Each of the demolition, the erection and the use amount to "development". Unpacking the legal content of the words "development in relation to the land" in accordance with s 4(1) to the three relevant activities (building erection, carrying out work and use), and confining the paragraph to the only relevant item (namely, the listed building), the prohibition in s 57(1)(e) applies as follows: "Stamford must not: (a) erect a building on the land on which the former Health Department Building is situated; (b) carry out a work in, on, over or under the land on which the former Health Department Building is situated; or (c) use the land, or use a building or work on the land, on which the former Health Department Building is situated."
It will be seen that when the relevant three classes of activity which constitute development are inserted appropriately in s 57(1)(e), the words "in relation to" disappear. That is because the words "in relation to" are not themselves elements of the prohibition in s 57(1)(e). Rather, they are the words used to describe compendiously the relationship between all four activities which amount to development of the land.
This means that I must respectfully disagree with the construction upheld by the primary judge. That construction turned on the words "in relation to", but disregarded the fact that they are words whose purpose is to pick up concisely the four classes of activities which relate to land which are exhaustively defined by development in s 4. "In relation to" in s 57(1)(e) does not require a determination of a sufficient "nexus" between the development and the listed item. To be fair, the primary judge does not appear to have enjoyed full submissions on the parsing of the subsection, that in itself perhaps reflecting that the construction favoured by his Honour was neither side's primary submission.
Those textual considerations are so powerful that only if the result was a meaning properly regarded as capricious or awkward would it be displaced by other considerations. But contextual matters are confirmatory of what flows directly from the text, once it has been properly parsed, and tell against the construction upheld by the primary judge. In particular, while it may be plain that there is the requisite relationship between the tall modern block proposed by Stamford immediately to the south and west of the listed building, it is easy to contemplate examples which are less clearcut. What of a tall modern building on Mulpha's land to the south of Lot 1? It is easy to think of other contestable examples. The fact that the prohibition carries criminal sanctions, and the legislation requires notification and authorises rights of submission and of appeal, all favour a construction which gives clearcut answers to what development is prevented absent an approval.

The construction of "land" in s 57(1)(e)

The word "land" in s 57(1)(e) occurs three times. But "the land that comprises the place" and "land within the precinct" are used in quite different senses from the use of the word "land" that matters for the purposes of this appeal, "the land on which the building, work or relic is situated". Only in relation to the presently relevant use of "land" is there a constructional choice between land as the lot or cadastral parcel, as opposed to land as the footprint or physical area on which the building has been erected.
By a notice of contention which was prudently left undeveloped in oral submissions, Mulpha relied on what was said to be a definition of land in s 21 of the Interpretation Act as its "cadastral or conveyancing sense". This is a reference to the following provision: "land includes messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein."
That inclusive definition - which dates back to Brougham's first Interpretation Act (see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [7]) - does not assist to the difficulties posed by the three varying uses of "land" in s 57(1)(e).
I did not understand there to be any dispute between the parties that the legal meaning of the first use of "land" was unaffected by the second and third uses of "land" in the same paragraph, where the immediate context is quite different. In any event, I regard that as clear beyond argument. "Land" is highly contextual, and the words "comprises" in relation to a "place" and "within" in relation to a "precinct" provide a materially different context. The larger geographical areas necessarily refer to physical areas rather than parcels owned by a particular person.
Accordingly, removing the distracting words which are inapplicable where an interim heritage order or listing applies to a building, and dealing with the three relevant limbs of the definition of development, the paragraph provides: "A person must not: (a) erect a building on the land on which the listed building is situated; (b) carry out a work in, on, over or under the land on which the listed building is situated; or (c) use the land, or use a building or work on the land, on which the listed building is situated."
Does "land" refer to the cadastral lot or the footprint? In my view, little turns on the provisions elsewhere in the Act dealing with heritage valuations. "Land" by no means necessarily bears the same meaning throughout the Act. As Pearlman CJ noted, "land" is highly contextual. The context - adjustment to the regime governing rating and taxing of land - is entirely different from the context of s 57(1)(e). Of course land is rated or taxed by reference to cadastral boundaries which define ownership. Further, the provisions use different language, namely, "where that land is subject to a listing". That is distinct from the items and the land to which a listing applies. "Apply" is the verb consistently used in ss 27, 32 and 57. The more general term "subject to" is apt to pick up the cadastral lot on which a relic is located or a building has been erected.
For similar reasons, little turns on the provisions dealing with owners, occupiers and mortgagees, contrary to paragraph 3 of Mulpha's notice of contention, which referred to s 32(1)(d) and s 33(1)(a). That immediate textual context, which once again squarely connotes ownership, is distinct from the uses of "land" in s 57(1)(e), where the word is invariably used in connection with the physical activities erecting a building, carrying out work, or using the land "on which the listed building is situated".
Further, it is clear that "situated" is used in a range of ways in the Act. For example, s 38(2) provides that: The Heritage Council may make such a recommendation to the Minister either at the request of the Minister, or on the Heritage Council's own initiative, or at the request of the owner of the item or of the council of the area in which the item is situated. In that subsection, "situated" is used to identify the local government area in which the item is located. The Minister is also given power in s 38(1)(b) to remove an item if "the listing causes undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated". The owner of the land on which the item is situated will plainly enough be someone who owns the cadastral parcel. However, the subsection refers both to the owner of the item and the owner of the land on which the item is situated. The owner of a building is the owner of the cadastral lot on which the building is erected. The owner of the land on which the building is situated is the same person, but the "land" may equally be a reference to the cadastral lot or the part of the lot on which the building is built. When one adds to that ambiguity the possibility that a curtilage has been specified together with the listed building, such that the listing applies to the land which is the curtilage, I would be reluctant to draw any conclusion from the way in which "land on which the item is situated" has been used in s 38(1)(b) and (2).
The key distinction to be seen is that sometimes the Act refers to property rights and ownership, in which case references to land tend to be references to cadastral parcels of land which may be owned or leased or mortgaged. Sometimes however the Act refers to physical activities which take place in the physical landscape. Subsection 57(1) is all about physical activities taking place in the physical landscape.
Take s 57(1)(b) or (d). In these paragraphs, the references to "land" are references to the curtilage or site of a building or work or relic (in the case of (d), it is necessarily a relic). The prohibition on damaging or despoiling the curtilage or site in paragraph (b) is necessarily confined to the geographical area specified as the site or curtilage. The prohibition on excavating "any land" is plainly a reference to the soil, subsoil and bedrock which might be dug up by hand or machine. It is scarcely to be read as a cadastral lot. Mulpha's notice of contention (paragraph 3 of which invoked consistency with paragraphs (b) and (d)) failed to appreciate that "land" in those paragraphs was used quite differently, as a curtilage or site, from the use of "land" in paragraph (e).
Likewise, the prohibition in (h) about damaging or destroying a tree or vegetation in the curtilage or site is necessarily about trees or vegetation growing in the specified curtilage or site. Insofar as the paragraph applies to "land", the reference cannot be a reference to the cadastral parcel.
I acknowledge that s 57(1)(e) is less clearcut than all other references to land, and in large measure that is because "land" in this paragraph is not used to refer to a curtilage or site. However, the "land on which the building is situated", when used in connection with a prohibition on erecting buildings, carrying out works or use, and in one of eight paragraphs directed to physical activities, seems apt to identify the part of the land on which the physical structure is erected, rather than the whole lot.
Slightly more assistance is derived from s 59, which deals with the making of applications for approval so as to avoid the prohibition in s 57. it provides: "59 Making of application An application for approval may be made by: (a) the owner of the item or land the subject of the application, or (b) any person with the consent in writing of that owner, or (c) if the item or land is situated on or comprises Crown land as defined in the Crown Land Management Act 2016, the lawful occupier of the Crown land."
Paragraphs (a) and (b) refer to owner. But "land", as opposed to an "item", may only be the subject of the application if it is an application seeking relief from the prohibition upon acts affecting the curtilage (perhaps, cutting down an ageing tree on the curtilage of a listed building). An owner of the land that is the curtilage is apt to be a reference to the owner of the cadastral lot which contains the curtilage specified in the listing. But paragraph (c) is more enlightening.
If the item is a building, then paragraph (c) asks whether the building is situated on Crown land (a building cannot comprise Crown land). To my mind, "situated on" in s 59(c) most naturally refers to the footprint of the building, rather than the title boundary of the relevant parcel of Crown land.
I also think that considerations based on purpose do not materially assist. Perhaps it is the case that the more extensive the prohibition in s 57(1), the greater the protection which is afforded to items which are of sufficient heritage value to attract an interim heritage order or a listing. (It is far from self-evident to me that that is so. It is an empirical statement, after all, and if prohibitions are too far-reaching, then it is quite possible that exemptions will be given all the more readily and perhaps with less thought, and it is also possible that there may be a greater reticence to recommend listing in the first place.) But it would be quite wrong to hypothesise a purpose and then to reason that because another meaning of "land" might be more consonant with that purpose, that meaning might be preferred. That is, or is at least akin to, the reasoning deprecated in Independent Commission Against Corruption v Cunneen at [33]-[35]. One thing that is plain is that the Act seeks to strike a balance between the protection of heritage and the property rights of landowners. Just as it is trite that while the purpose of a tax act is to collect revenue, every provision in a tax act is not to be construed so as to maximise the revenue collected, so too s 57(1)(e) is not to be construed so as to maximise the protection given to items with heritage values. Cf Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [51], approving Gleeson CJ's statement in Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [6]. No legislation strives to achieve its purposes at all costs. No differently from the cases mentioned in Olefines Pty Ltd v Valuer-General of New South Wales [2018] NSWCA 265 at [11], this provision is one which turns on "close attention to the text and structure".
Examples are not necessarily a safe guide to meaning, but consider the building which is a listed farmhouse on a large cadastral parcel of land. It seems strange that the erection of a shed or the building of a dam or the use of a spare building for accommodation, even though the shed or dam or spare building are hundreds of metres from the listed farmhouse albeit on the same lot, should be targeted by s 57(1)(e).
Further, as Stamford pointed out, quite elaborate provision is made in ss 27, 32 and 57 for the additional application of interim heritage orders and listings to land being the "site" or "curtilage" of a building. In substance, the argument is one of a specific express provision being inconsistent with a more general construction. Why would "land" mean the whole of the cadastral lot on which the listed building has been erected when the statutory scheme makes express and precise provision for protecting part of that land, namely, the site or curtilage which is specified in the listing?
Mulpha pointed to what it said was the unreality of the Act confining the attention of the Heritage Council to the footprint of a listed building, as opposed to the lot. On analysis, I think that this submission carries little weight. First, it does not attend to the power to extend a listing so that it applies to a specified "site" or "curtilage". Secondly, insofar as it invokes improbability of result, no construction can be given to this legislation which does not yield some arguably capricious results. The construction for which Mulpha contends leaves in place the phenomenon, familiar in central Sydney, of historical terraces literally adjoining modern buildings ten times taller, but which are on separate parcels of land, as well as introducing other difficulties (such as the listed farmhouse on a large parcel of land mentioned above). Thirdly, it is to be borne steadily in mind that it is quite difficult to identify legislative purpose. The regime confers a veto power on an unelected body for actions to which s 57 applies. However, irrespective of the scope of that regime, activities which require development consent will still require approval from the relevant consent authority. Further, the heritage status of the listing is a mandatory relevant consideration, as is the advice from the Heritage Council, such as was in fact provided in this case, when the consent authority considers the application. I further bear in mind that judicial and merits review is provided by a specialist superior court of the decisions of the consent authority. It seems to me that attention needs to be given to the way the statute fits into the whole moderately complex statutory regime, and that when that is done, little assistance is given by considerations of "purpose" in construing the finely nuanced competing constructions which arise in this appeal.
I conclude that Stamford's construction is the legal meaning of the paragraph, that "land on which the building is situated" means the part of the lot on which the building has been built and not the whole of the cadastral lot. That construction best accords with the focus upon physical activities taking place in the physical landscape in s 57(1), as well as respecting the fact that specific provision is made for the protection of the "site" or "curtilage" of the listed building. It follows that the Heritage Council correctly proceeded on the basis that its approval was not required for activities proposed by Stamford on that part of Lot 1 DP 839564 other than the site and curtilage of the Old Health Department Building.

Orders

For those reasons, the appeal should be allowed, the relief ordered by the Land and Environment Court set aside, and in lieu thereof Mulpha's proceedings dismissed. No submissions were made against the proposition that costs should follow the event.
I propose these orders: 1. Appeal allowed. 2. Set aside orders 1, 2 and 3 made on 12 November 2018, and in lieu thereof, order that the proceedings be dismissed with costs. 3. The first respondent to pay the appellant's costs of the appeal.
McCALLUM JA: I have had the benefit of reading the judgments of Leeming JA and Emmett AJA in draft. With great respect to their Honours, I do not agree with the conclusion they have reached, for the following reasons.
The argument explored three possible constructions of s 57(1)(e) of the Heritage Act. None is entirely satisfactory. On either contention as to the meaning of the word "land" in the opening phrase of that section, the result can be made to appear inconvenient by reference to example. Stamford invoked the image of a remote heritage shack on a large rural property or a university campus crowded with buildings on a single title. Mulpha relies on the example of this case, involving a proposal to develop a 16-story residential tower physically abutting an important heritage building in the heart of Sydney, to illustrate the opposite argument.
The primary judge took the view that each of the competing interpretations contended for would promote the objects of the Heritage Act in some degree and accordingly that s 33 of the Interpretation Act was "not called upon": at [117]. But that is not to say promotion of the purposes of the Heritage Act must give way to the text and syntax of the section under consideration. The text must be considered in light of its context and purpose. In a discussion of the nature of that task, the High Court in Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 at [69] endorsed the observation of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27 that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".
The primary judge did not consider it necessary to determine the precise scope of the term "land" in s 57(1)(e) because his Honour took the view that the phrase "in relation to" did "the relevant work" (presumably, of affording protection to heritage listed items): primary judgment at [118]. His Honour determined that the term "land" did not have the fixed meaning contended for by either party but would instead be determined by reference to the circumstances of each individual case, requiring an evaluative assessment by the approval body as to whether the land proposed for development had the relevant nexus with the heritage listed item. I agree with Leeming JA and Emmett AJA that that is not the correct construction of the section. To leave a statutory provision that is determinative of the rights, obligations and potential criminal liability of a land-owner to take its meaning from the circumstances of the individual case (and the Heritage Council's assessment of those circumstances) would involve great uncertainty and would undermine the efficacy of the Act. Accordingly, grounds 1 and 2 are made out.
However, I respectfully disagree with Leeming JA and Emmett AJA that the term "the land on which the building … is situated" in s 57(1)(e) means the part of the lot on which the building has been built (the footprint). I would also reject the contention made in Stamford's third ground of appeal that the term "land" in that section means the land occupied by the precinct, place or building (including its identified curtilage) that was listed pursuant to s 32 of the Heritage Act.
Mulpha's notice of contention contends that the term "land" in s 57(1)(e) means land in its cadastral or conveyancing sense. The term "land" appears three times in that subsection; the argument was confined to its first use. The Court was not addressed as to whether it must necessarily have the same meaning throughout the subsection. In my view, that is contestable, having regard to the terms of s 32 (considered below). I would confine myself to hold that the term "land" in the phrase "the land on which the building, work or relic is situated" in s 57(1)(e) means the whole of the relevant lot or parcel.
Stamford submitted that statutes that are concerned with regulation of the use and development of land generally do so having regard to the functional extent of the use and occupation of the land as opposed to the cadastral boundaries. The submissions referred to this as a "general principle" from which the Heritage Act discloses no intention to depart. Two authorities were cited: People for the Plains Inc v Santos NSW (Eastern) Pty Ltd [2017] NSWCA 46; 220 LGERA 181 at [165]-[166] and [187] per Ward JA and [206]-[207] per Payne JA; and Pathold No 176 Pty Ltd v Minister for Transport Services [2005] NSWLEC 184. I do not think they support any such general principle. Each was concerned with a very different exercise (in the case of People for the Plains, the proper construction of a clause of an environment planning policy). The submission invites a wrong approach and must be rejected.
Justice Leeming has referred to the decision of Pearlman CJ in Scully v Leichhardt Council in which her Honour noted the generality of the word "land" in its ordinary meaning and the need to consider the context in which it appears and the scope and purpose of the relevant statutory provisions.
That task is complicated in the present case by the fact that the word "land" appears hundreds of times in the Heritage Act (nine times in s 57 alone) and in many different contexts. Central to Mulpha's argument is the proposition that the Act is variously concerned with, on the one hand, land identified in a topographical way (such as the curtilage or footprint of a building) and, on the other hand, land identified in the context of its ownership, where it was said to refer to the physical bounds of the relevant title (referred to during argument as a "cadastral parcel"). Part of the complexity of s 57 is that it concerns both concepts. It is directed to persons required to obtain approval under the statute to do certain things to items or land, which assumes ownership of title, but it also addresses what can be done physically to each item or to land.
There is complexity also arising from the fact that, of the six kinds of thing that can be the subject of an interim heritage order or listing on the State Heritage Register (a place, building, work, relic, moveable object or precinct), some comprise or include land, and so would enjoy the direct protection of the listing, whereas others are things that are not land but that are on land, in which case the protection of their heritage significance may require some regulation of the land they are on.
The premise of s 57 is that an interim heritage order or listing on the State Heritage Register can "apply" not only to each of the six things but also to "land". The word "land" there must be construed to mean something additional to the six things. The distinction between the six items and "land" is maintained throughout the section, even to the point of spelling out in s 57(1)(e) that the section applies to "the land that comprises the place". Interestingly, the section also refers to "land within the precinct", suggesting that a precinct may include parts that are not land, such as a shipping dock or a wharf.
The contemplation of land as a seventh thing to which a heritage listing "applies" acknowledges that the six items capable of enjoying the protection of a heritage listing will be connected with land in one way or another and that the protection of the item will need to extend in one way or another to the land with which it is connected. The only item that, by definition, would never have a connection with land is a "moveable object" and that is the one item not addressed in the provision concerned with development, which of course is s 57(1)(e). The language of s 57(1) evinces an intention to capture that variety of connectedness in a broad and comprehensive way.
That of course does not determine whether the word "land" in the first phrase of s 57(1)(e) means the footprint or the whole of the cadastral lot. However, in opening with the identification of "land" as a separate thing to which the application of an interim heritage order or heritage listing may extend, the section contemplates the existence of land the separate protection of which will support the protection of the listed item.
As Leeming JA has explained, the scheme of the Act makes plain that a building is regarded as something separate from the land on which it is built. In the present case, the heritage listing was expressed to apply to the land that comprised the footprint of the building, as allowed by s 32(3). I accept that it is open to conclude that the Act's separate treatment (in that section and elsewhere) of buildings and the site or curtilage of buildings resolves the disparity between the six things that can be items as defined in s 4 and the inclusion of the seventh, "land", in the opening words of s 57, for the reasons Leeming JA has explained.
In my view, however, a different interpretation is also open, as argued by Mulpha. Considering the text of s 57 alone, shorn of context, in my view the phrase "the land on which the building … is situated" would ordinarily be understood to refer to the relevant parcel or lot rather than being confined to the footprint. The meaning contended for by Stamford emerges from a contextual analysis rather than from the meaning of the words.
Turning to contextual considerations, Mulpha submitted that the term "land" is used in the cadastral sense in a number of provisions that affect owners. The term "affected owner" is defined in s 4 as follows: "affected owner or occupier", in relation to an interim heritage order or to listing on the State Heritage Register, means: (a) in the case of an order or listing applicable to a place--the owner or any occupier of land that comprises the place, or (b) in the case of an order or listing applicable to a building, work or relic (being a relic that is attached to or forms part of land)--the owner or any occupier of land on which the building, work or relic is situated, or (c) in the case of an order or listing applicable to a relic that is not attached to or does not form part of land or is applicable to a moveable object--the owner of the relic or moveable object, or (d) in the case of an order or listing applicable to a precinct--the owners or occupiers of land in the precinct.
Mr Hutley SC, who appeared with Mr Ireland for Mulpha, submitted that the phrase "the owner or any occupier of land on which the building, work or relic is situated" in that definition should there be understood to refer to the owner of the cadastral parcel. I agree. It must be acknowledged that the text is nonetheless capable of bearing the meaning that the "land" referred to is the footprint of the relevant item (which would fall within the cadastral parcel held by the affected owner) but that would be a curious reading of those words. It is particularly curious to construe the section as referring to the owner or occupier of the footprint in the case of a relic.
Mr Hutley also noted the provisions of s 125, which is concerned with the valuation for rating or taxing purposes of land that is subject to a listing on the State Heritage Register. He submitted that could only refer to the land held on the title; it makes no sense to value a footprint. I agree.
As noted by Mulpha in its submissions before the primary judge (repeated in the appeal), s 57 uses language cognate with the definition of "affected owner" in s 4. Section 57 does not pick up the language of ss 27(b) and 32(3)(b) (the provisions that authorise the inclusion of the curtilage or site in the listing). Had it been intended to confine the prohibition in s 57(1)(e) to development in relation to the footprint of the building, work or relic, as contended by Stamford, the section could have been worded using the language of those provisions so as to prohibit development in relation to "the land that comprises the curtilage or site specified or described in the listing". The different language used in s 57(1)(e) in the phrase "the land on which the building, work or relic is situated" instead echoes the language of the definition of "affected owner" where it refers to "the owner or any occupier of land on which the building, work or relic is situated".
It makes sense not to have adopted the language of s 32(3) (curtilage or site) in the description of the relevant "land" in s 57(1)(e). Contrary to a submission put by Stamford, I do not accept that the identification of the curtilage or site at the time of listing should be understood to meet the interests of heritage protection. The scope and likely heritage impact of any future development could not be known at that time.
Section 36 provides further contextual support for the distinction contended for by Mulpha. That section identifies the persons entitled to appear at a review conducted by the Independent Planning Commission. Subsection (a) relevantly provides: (a) an owner, mortgagee or lessee of land to which the proposed listing will apply or of land on which is situated the building, work or relic (being a relic that is attached to or forms part of land) that will be subject to the proposed listing.
The natural meaning of the phrase "land on which is situated the building, work or relic" in that context is the cadastral parcel. As already indicated, I acknowledge that the footprint is a subset of the whole and accordingly that the owner of the land is also the owner of the footprint. But if that was the meaning intended, one would expect the section to say so explicitly.
Accordingly, while I accept that the construction contended for by Stamford finds some support in the text and context of s 57(1)(e), in my view the construction contended for by Mulpha is the more natural reading of the text and finds contextual support in the consistent use of the same phrase ("land on which the building, work or relic is situated") in provisions addressing the position of owners. I am not persuaded that there is any textual or contextual consideration that precludes Mulpha's construction.
The approach that might be taken where a question of construction raises a choice was reiterated by the High Court in SAS Trustee Corporation v Miles [2018] HCA 55 at [20]: "Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies." (citation omitted)
Mr Hutley submitted that Mulpha's construction is consistent with the Act's apparent concern for the effect of listings or orders on the owner of the land on which items of heritage significance are situated and its concern as to the use of such land and its likely effect on the relevant item of significance. He submitted that there was "a certain unreality" in the idea that the legislature would carve out the footprint or curtilage of a building as being the only matter with which the approval body is concerned rather than considering the whole of the cadastral parcel on which the item sits. As this case illustrates, the development of land within the cadastral parcel but outside a building's footprint or curtilage has the potential for significant impact on the conservation of the heritage significance of a listed building.
In my view, two potential meanings being open, Mulpha's construction best serves the objects of the Heritage Act and should be adopted.
For those reasons, the orders I propose are: 1. That the appeal be dismissed. 2. That the appellant pay the respondent's costs.
EMMETT AJA:

Introduction This appeal is concerned with proposed development on a parcel of land described as Lot 1 in DP 839564 (the Parcel), which is owned by the appellant, Stamford Property Services Pty Ltd (Stamford). The Parcel is located at the corner of Macquarie and Albert Streets, Sydney. The buildings presently erected on the Parcel are used as the Sir Stamford Hotel. One of those buildings is known as the former Health Department Building (the Building). The question in the appeal is whether the reuse of the Building and construction of a residential tower on the Parcel, adjacent to the Building, requires approval under Part 4 Div 3 Subdiv 1 of the Heritage Act 1977 (NSW) (the Heritage Act). That question depends upon the proper construction of s 57(1)(e) of the Heritage Act.

The Heritage Act

Section 57(1)(e) of the Heritage Act relevantly provides that, where an interim heritage order or a listing on the State Heritage Register (the Register) applies to a building, a person must not, except in pursuance of an approval granted under Part 4 Div 3 Subdiv 1 , carry out any development in relation to the land on which the building is situated. Under s 4(1), development in relation to land includes the erection of a building on that land and the subdivision of that land. The specific question is whether the development on the Parcel proposed by Stamford is development in relation to the land on which the Building is situated.
The objects of the Heritage Act include promoting an understanding and encouraging the conservation of the State's heritage, providing for the identification and registration of items of State heritage significance, providing for the interim protection of items of State heritage significance, constituting the Heritage Council of New South Wales (the Heritage Council) and conferring on it functions relating to the State's heritage. Under s 31 of the Heritage Act, the Heritage Council keeps the Register.
Under s 24 of the Heritage Act, the Minister may make an interim heritage order for, relevantly, a building that the Minister considers may, on further inquiry or investigation, be found to be of State or local heritage significance. Under s 27 of the Heritage Act, an interim heritage order made in respect of an item may be expressed to apply, and if so expressed does apply, to:

if the item is a building - the curtilage of that building or the site of that building, being the curtilage or site specified or described in the order, or
if the item is a work or a relic that is attached to or forms part of land - the site specified or described in the order for that work or relic.

Under s 32(1) of the Heritage Act, the Minister may direct the listing on the Register of, relevantly, a building that the Minister considers is of State heritage significance. Under s 32(3) a listing in respect of an item can be expressed to apply, and if so expressed does apply, to:

if the item is a building - the curtilage of that building or the site of that building, being the curtilage or site specified or described in the listing; or
if the item is a work or a relic that is attached to or forms part of land - the site specified or described in the listing of that work or relic.

The Heritage Commission and the Building

On 8 July 2012, the Minister made an interim heritage order (the Interim Order), in pursuance of s 24 of the Heritage Act, in respect of the item of environmental heritage specified and described in Schedule A to the Interim Order, and declared that the Interim Order would apply "to the curtilage or site" of that item, being the land described in Schedule B to the Interim Order. Schedule A to the Interim Order was in the following terms: "The property known as the former Health Department Building and Sir Stamford Hotel, situated 93-97 Macquarie Street, Sydney on the land described in Schedule B." Schedule B to the Interim Order was in the following terms: "All those pieces or parcels of land known as part of Lot 1 of DP 839564 … shown on the plan catalogued HC2542 in the branch of the Heritage Council …"
On 15 September 2013, the Minister gave to the Heritage Council a direction, pursuant to s 32(1) of the Heritage Act (the Direction), to list on the Register the item specified in Schedule A to the Direction. The Direction stated that the listing would apply "to the curtilage or site" of that item, being the land described in Schedule B to the direction. Schedule A to the Direction was in the following terms: "The item known as the Health Department Building (former), situated on the land described in Schedule B". Schedule B to the Direction was in the following terms: "All those pieces or parcels of land known as part of Lot 1 DP 839564 … shown on the plan catalogued HC 2583 in the office of the Heritage Council …"
In addition, by order under s 57(2) dated 15 September 2013 (the Order), the Minister also granted an exemption from s 57(1) of the Heritage Act in respect of the engaging in or carrying out of the activities described in Schedule C to the Order by the owner, mortgagee or lessee of the land described in Schedule B on the item described in Schedule A. Schedule A and Schedule B to the Order were in identical terms to Schedule A and Schedule B to the Direction. The detail of Schedule C to the Order is not presently relevant.
The evidence as to the Interim Order and the listing of the Building on the Register is curiously incomplete. Neither the plan catalogued HC 2542 in the branch of the Heritage Council, referred to in Schedule B to the Interim Order, nor the plan catalogued HC 2583 in the office of the Heritage Council, referred to in Schedule B to the Direction and the Order, was before the Court.
Attached to the Interim Order was a plan prepared by the Heritage Council that showed the boundaries of the Parcel together with parts of other parcels of land that adjoin the Parcel. On the plan, part of the Parcel was hatched and the endorsement "Former Health Department Building IHO No. Plan: 2542" appeared over the hatching. The legend to the plan indicated that the hatched part was "IHO Curtilage". There was no indication that it was the plan catalogued as HC 2542. A copy of the plan attached to the interim Heritage Order is set out in Appendix 1 to these reasons.
A plan was also attached to the Government Gazette of 9 October 2013, by which the Direction and the Order were publicly notified. That plan showed part of the Parcel and also showed parts of adjoining parcels "Royal Automobile Club", "Justice and Police Museum" and "Royal Botanic Gardens and Domain" as hatched. The same part of the Parcel was shown hatched as on the Interim Order plan, and across the hatched part was the endorsement "Former Health Department Building SHR: 01942 - Plan: 2583". However other parts of the plan, beyond the boundaries of the Parcel, were also hatched with endorsements of references to similarly named plans for "Royal Automobile Club", "Justice and Police Museum" and "Royal Botanic Gardens and Domain". The legend to the plan indicated that all of the hatched part was "SHR Curtilage".
There was nothing in the plan in the Government gazette to indicate that it was the plan catalogued HC 2583. Indeed, clearly it was not that plan since the plan referred to plans relating to the Royal Automobile Club, Justice and Police Museum and Royal Botanic Gardens and Domain. The plan attached to the Government Gazette of 9 October 2013 is set out in Appendix 2 to these reasons.
The references in the Interim Order, the Direction and the Order and in the plans to "curtilage" are also curious. The word "curtilage", as a matter of ordinary English, refers to a yard or piece of ground attached to a building and forming one enclosure with the building [1] . The evidence indicates that there was in fact no curtilage, in that sense, of the Building. The area hatched on the plans in Appendix 1 and Appendix 2 apparently indicates the whole of the part of the Parcel upon which the Building is erected. Thus, the author of the plans appears to have assumed that "curtilage" referred to the land on which a building is erected, rather than the ground surrounding a building so as to form a single enclosure with the building.

The Proceedings

The first respondent in the appeal, Mulpha Australia Ltd (Mulpha) commenced proceedings in the Land and Environment Court (the L&E Court) seeking judicial review of the actions of the second respondent in the appeal, the Central Sydney Planning Committee (the Committee), and the third respondent in the appeal, the Heritage Council. On 12 November 2018, for reasons published on that day, a judge of the L&E Court (the primary judge) ordered that the Committee be prohibited from determining Stamford's development application pending the provision of a lawful decision by the Heritage Council and ordered the Heritage Council to provide to Sydney City Council, the delegate of the Committee, a lawful decision under the Environmental Planning and Assessment Act 1979 (NSW) concerning the general terms of approval in relation to Stamford's development application, including whether or not it will grant an approval under s 63 of the Heritage Act.
By notice of appeal filed on 16 January 2019, Stamford appeals from the orders made by the primary judge on the ground that his Honour erred in holding that the extent of land that is within the "land" to which s 57(1)(e) of the Heritage Act applies is to be determined depending on whether the land proposed for development has a "relevant nexus" with the listed item, namely, the Building, and that his Honour erred in not holding that "land" means the land occupied by the Building. By notice of contention filed with leave during the course of the hearing of the appeal, Mulpha sought to support the decision of the primary judge on the ground that "land" in s 57(1)(e) of the Heritage Act refers to a lot or parcel of land in respect of which a separate title exists, namely, in the present case, the Parcel.

The Operation of s 57(1)

The Heritage Act applies not only to buildings but also to any "item", as defined in s 4. That term is defined in s 4 as meaning: "a place, building, work, relic, movable object or precinct." Section 57(1) refers to eight different activities that are proscribed. However, not each of those activities applies to every item. It is relevant that "land" as such is not an "item". However, s 57(1) includes a reference to "land" in addition to each of the six kinds of item.
The full terms of s 57(1) are as follows: (1) When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3: (a) demolish the building or work, (b) damage or despoil the place, precinct or land, or any part of the place, precinct or land, (c) move, damage or destroy the relic or moveable object, (d) excavate any land for the purpose of exposing or moving the relic, (e) carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct, (f) alter the building, work, relic or moveable object, (g) display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct, (h) damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land.
Thus, the paragraphs of s 57(1) refer to the various items, shown highlighted above, or to land, as follows:

(a) refers to a building or work;
(b) refers to a place, precinct or land, or any part of a place, precinct or land;
(c) refers to a relic or movable object;
(d) refers to a relic;
(e) refers to land on which a building, work or relic is situated, land that comprises a place or land within a precinct;
(f) refers to a building, work, relic or movable object;
(g) refers to a place, building, work, relic, movable object, land or precinct; and
(h) refers to a place, precinct, or land. In addition, several of the paragraphs refer to "land" in different respects. In some cases, the reference is to land to which an interim heritage order or a listing applies, such as paragraph (b), paragraph (g) and paragraph (h). On the other hand, the reference to "land" in paragraph (e) is a reference to land where an item is situated, as well as to land to which an order or listing applies. The relevant part of paragraph (e) for present purposes is concerned with the former use.

Section 24 of the Heritage Act authorises an interim heritage order only in respect of a place, building, work, relic, movable object or precinct. Each of those terms is an "item". Section 24 does not, in terms, authorise an interim heritage order in respect of land simpliciter, although land may be part of or have some relationship with an item. Thus, "precinct" is defined in s 4 as "an area, a part of an area or any other part of the State". Area is given the same meaning as in the Local Government Act 1993 (NSW), namely, "an area as constituted under Part 1 of Chapter 9". Part 1 of Ch 9 consists of ss 204 to 218F. Under s 204, the Government may constitute any part of New South Wales as "an area", which is to have the boundaries determined by the Governor. An area must be a single area of contiguous land. Section 205 provides rules for land that is to be taken to be included in "an area".
The term "place" is defined in s 4 of the Heritage Act as "an area of land, with or without improvements". It is difficult to see the distinction intended to be drawn between a "place" and a "precinct", in so far as the term "area" is defined in the Local Government Act as being a part of the State that is a single area of contiguous land. On the other hand, it may be possible to discern a distinction between the definition of place as an "area of land" as against a precinct being defined as merely an "area".
In so far as a building must be constructed on land, and by reason of the doctrine of fixtures, becomes part of the land on which it is constructed, a building has an immediate connection with land. That is recognised by s 57(1)(e), in so far as reference is made to "land on which the building, work or relic is situated…". Section 57(1)(e) also recognises that land comprises a place and that land will be within a precinct.
However, it is not entirely clear why the preamble of s 57(1) refers to "land" as being something to which an interim heritage order or a listing on the Register might apply, as well as referring to each of the things which fall within the definition of "item". A "curtilage" of a building or the "site" of a building will of course be land. To that extent, s 27 and s 32(3) authorise an interim heritage order or a listing to "apply" to land that constitutes curtilage or site of a building or land to which a work or relic is attached or land on which a work or relic forms a part. However, apart from s 27 and s 32(3), the Heritage Act does not appear to provide, in express terms, that an interim heritage order or a listing "applies" to an item as such.
Nevertheless, s 57 assumes that either an interim heritage order or a listing on the Register applies to each of the seven things mentioned in the subsection's opening words, being the six "items" plus land. Thus, it appears to follow from the scheme of the Heritage Act that, when an interim heritage order is made under s 24 "for" an item, or the Minister directs under s 32(1) the listing on the Register "of" an item, the relevant interim heritage order or listing "applies" to that item. In so far as that item consists of land, as indicated above, then the interim heritage order or listing applies to that land to that extent. However, it is only by the operation of s 27 or s 32(3) that an interim heritage order or a listing applies to land that is not an item, namely, a curtilage or site.

the lot identification of the land;
the ambit of the proposed development in question;
the scope of the listing; and
a combination of some or all of those factors.

His Honour considered that in determining the relevant nexus in all instances, there was "both a factual and qualitative assessment" involved in deciding whether the proposed development was "in relation to the land on which the building is situated". His Honour said that the "anchors in this task" were:

the relationship between the land and the development, which his Honour characterised as being more qualitative in determination; and
the land, which his Honour characterised as more factual in determination.

His Honour held that the "contextual setting" of the proposed development would inevitably be an important factor in determining whether that development was "in relation to" the land on which the listed building is situated.
Such a construction is inconsistent with the structure of the Heritage Act. The process of listing permits the Heritage Council to define the area, development of which is proscribed without approval. The impacts of a proposed development would be considered in assessing whether or not approval should be granted to the proposed development on the area defined by the listing process. Those impacts are to be considered in the assessment process in determining whether or not to grant approval. They are not considered in a preliminary step of making a determination as to whether approval should be required in the first place. Thus, the proscription is on any development at all on the relevant land. The proscription is not on development of a particular character, size or intensity. Any development at all in relation to the relevant land is proscribed without approval.
The Heritage Council is required to exercise a statutory discretion in two circumstances. The first is when it considers recommending the listing of an item, including the extent of the listing. The second is when an application is made for approval in respect of any of the things set out in s 57(1). The effect of the reasoning of the primary judge is that the Heritage Council is given a further discretion, implicitly it seems, by the use of the phrase "in relation to". In relation to the express discretion as conferred on the Heritage Council by the Heritage Act, express matters for consideration are set out, that is to say, both in relation to the listing and to the granting of approval. However, the Heritage Act does not make any provision as to the criteria for exercising the further discretion found by the primary judge, namely, to determine whether or not a particular development on land to which the interim heritage order or listing does not apply as such an impact on land to which the interim heritage order or listing does apply, so as to require approval to that development.
A further consequence of the construction adopted by the primary judge is that approval could be required for development on land that was not owned by the owner of the land on which a building was erected. An adjoining landowner might require approval if development of that owner's land would have a relevant impact on a listed item. Such a person would therefore be affected by the listing of the item, but there would be no requirement for that owner to be notified of the proposed listing. Section 33 of Heritage Act requires that, before making a recommendation for the listing of an item on the Register, the Heritage Council must follow a procedure, which involves giving notice that it is going to consider whether or not to recommend the listing of an item by written notice given to each person that it considers to be an affected owner or occupier, except in the case of a listing of a precinct. In the case of a listing of a precinct, the notice is to be given by notice published in at least one metropolitan newspaper and one local newspaper circulating in the precinct. That process does not require the giving of any notice, except in relation to a precinct, to the owner of adjacent land whose interest may be affected.

Conclusion

I have had the advantage of reading in draft form the proposed reasons of Leeming JA for concluding that the appeal should be allowed. Subject to what I have said, I agree with his Honour's reasons and with the orders he proposes.

Appendix 1 (116 KB, pdf) Appendix 2 (141 KB, pdf)

Endnote

See Shorter Oxford English Dictionary and Macquarie Dictionary.

Amendments 21 November 2019 - [6] - "Former Heritage Building" changed to "Former Health Building". [20] - "and 'moveable object' are" deleted and replaced with "is". [26] - "indirectly" inserted before "in the definitions of 'relic'". [31] - in (i), "the building" changed to "a building"; in (iii), "in relation to" deleted. [42] - "Pt 3A" changed to "Pt 3". [47] - in second sentence, "there is" inserted after "Where". [54] - in first sentence, "there" changed to "these". [57] - second sentence, "it" changed to "It". [59] - "carrying out development" changed to "carrying out of development". [61] - "in, or, over or under" changed to "in, on, over or under". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2019

Solicitors: Norton Rose Fulbright Australia (Appellant) Dentons Australia Ltd (First Respondent) File Number(s): 2018/376019 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2018] NSWLEC 179 Date of Decision: 12 November 2018 Before: Molesworth AJ File Number(s): 2018/144179

(2017) 220 LGERA 181

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