Was There a Failure to Consider Clause 1.13 of the DCP?
33Three matters relevant to the determination of this ground of appeal were not in dispute. First, that cl 1.13 of the HDCP was a mandatory relevant consideration. This is undeniably correct when regard is had to s 79C(1)(a)(iii) of the EPAA and the subject matter of the development application involving, as it did, the demolition of contributory buildings in a heritage area. Second, there can also be no doubt when regard is had to the transcript of the proceedings before the Commissioner that the parties called evidence and addressed the Commissioner in relation to cl 1.13 of the HDCP. And third, there is no express reference whatsoever in the Commissioner's reasons to cl 1.13 of the HDCP.
34The appellant submitted that the Commissioner had erred in ignoring the mandatory consideration of cl 1.13 of the HDCP and substituting in its place the consideration of the appropriateness of the demolition of the existing contributory buildings pursuant to the planning principle in Helou . The error was compounded by the appellant having submitted to the Commissioner that the principles in Helou were not coincident with that clause, and were either irrelevant or, at the very least, less relevant than cl 1.13 of the HDCP.
35This submission was made notwithstanding that much of the conduct of the hearing before the Commissioner was directed to Helou and much of the evidence put before the Commissioner addressed the planning principle established by that case.
36The respondent, by contrast, asserted that when regard is had to the conduct of the proceedings before the Commissioner, including the emphasis given to the planning principle articulated in Helou , it is apparent that she took into account the substance of the relevant matters required by cl 1.13 of the HDCP, and having done so, she formed the necessary mental state mandated by that provision.
37While it is correct that the Commissioner did not specifically refer to the HDCP, she did refer to the relevant heritage provisions of the LEP, namely, the heritage aims contained in cl 22, the protection of the HCA and heritage streetscape contained in cl 23A and cl 24 concerning development within the vicinity of heritage items (at [14]-[18] and [54]). These clauses, the respondent submitted, demonstrate that she took into account the substance of the subject matter of c1.13 of the HDCP.
38But the fact that the Commissioner was specifically directed to the HDCP in contention 2 of the Amended Statement of Facts and Contentions, in oral submissions by both parties and in the respondent's written submissions cannot be ignored.
39The complete absence of reference to a matter that a decision-maker is obliged to take into consideration will give rise, absent sufficient evidence to the contrary, to an inference that it was not considered ( Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [10]-[11] and [27]).
40The question therefore arises as to whether there is sufficient evidence to repel the inference that the Commissioner did not consider cl 1.13 of the HDCP.
41The respondent submitted that upon a proper analysis of the Commissioner's findings it is evident that she formed the requisite state of mind contemplated by that clause inasmuch as she was not satisfied that the appellant had discharged its onus of demonstrating why the buildings "cannot be retained, taking into consideration" "the heritage significance of the item or contribution of the building or building elements to the heritage significance of the heritage conservation area or heritage streetscape" (cl 1.13 of the HDCP).
42As described above, the Commissioner held that insufficient consideration had been given by Mr Dickson to the option of extending or altering the development in a way that lessened any adverse effect on the integrity of the area as an alternative to demolition (at [69]). Further, having found that the two dwellings were important contributory items (at [78]) and that the evidence did not satisfy her that there were no other options available for the redevelopment and expansion of the site incorporating the existing buildings to justify demolition (at [79]), the Commissioner concluded that, first, demolition of the two dwellings was inappropriate, and second, that the proposed building was inappropriate (at [80]). In arriving at this conclusion, the Commissioner considered that although the zoning of the land permitted a greater development potential to that proposed, this needed to be balanced against the importance of the location of the development within a HCA and HSA (at [71]). The Commissioner also rejected the contention that demolition was to be preferred on economic grounds (at [70]).
43When these findings, albeit cast in the language of the planning principle in Helou , are contrasted against the content of cl 1.13 of the HDCP, it is, at first blush, difficult to see what matter of substance contained in cl 1.13 of the HDCP the Commissioner failed to take into account given that, first, the onus was on the appellant to demonstrate why the buildings could not be retained. Second, the heritage significance of the dwellings was plainly considered by the Commissioner. Third, the Commissioner had regard to the evidence of the parties with respect to the proposed demolition of the dwellings, including evidence that was squarely directed at "why the structure needs to be demolished" and "a statement from a quantity surveyor comparing the cost of demolition and the cost of retention". And fourth, having regard to the emphasis in cl 1.13 that "where possible and reasonable, built heritage should be retained".
44However, the appellant contends that the test for demolition in cl 1.13 of the HDCP was not coincident with the test in Helou insofar as, pursuant to the HDCP demolition was to be justified on the basis of a demolition report, a component of which concerned relevantly for present purposes, the heritage significance of the buildings to be demolished and which required demonstration that: first, the structure was not reasonably capable of retention; second, the buildings needed to be demolished; and third, "if demolition is recommended primarily on economic grounds" a statement from a quality surveyor "comparing the cost of demolition and cost of retention". The HDCP did not, by contrast, require a consideration of costings or of extension or alteration to achieve development aspirations or an analysis of the quality of any replacement building.
45The appellant further submitted that not only was this lack of coincidence expressly argued before the Commissioner, it was acknowledged by the respondent, and moreover, that Mr Wang and Mr Staas, the parties' respective heritage consultants, gave evidence, inter alia , premised on the requirements of cl 1.13 of the HDCP.
46The appellant's contentions in this regard are correct. In particular, the lack of coincidence was acknowledged by the respondent before the Commissioner in response to the submission by the appellant that, on the question of demolition, Helou was irrelevant. The respondent submitted that, far from disregarding Helou , the Court would be assisted by a consideration of the planning principle articulated in it.
47Although the substantial overlap in content between the principle espoused in Helou and cl 1.13 of the HDCP cannot be denied, cl 1.13 of the HDCP did not require consideration of whether there was any scope for extending or altering the buildings to achieve the development aspirations of the appellants in a way that would have a more minimal impact on the integrity of the conservation area than demolition ( Helou no 4), or contemplation of whether the cost of doing so was so unreasonably high that demolition should be permitted ( Helou no 5). Similarly, cl 1.13 of the HDCP did not specifically call for an examination of the quality of the replacement building in respect of its assimilation into the conservation area ( Helou no 6).
48I acknowledge that there is force in the respondent's contention that these considerations would have been implicit in any consideration of cl 1.13 and that it may therefore be inferred that "in substance" the Commissioner addressed the subject matter of the HDCP in her contemplation and application of Helou (North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 441 and Manly Council v BDSI Pty Limited [2010] NSWLEC 31 at [36]). Alternatively, the debate was framed this way, viz , to the extent that there was no unanimity of coincidence in the matters for consideration in Helou and cl 1.13 of the HDCP, the additional matters taken into account by the Commissioner ( Helou nos 4-6) were just that, additional, and did not result in the Commissioner failing to consider a material aspect of cl 1.13 of the HDCP.
49But upon closer examination, the additional matters considered by the Commissioner were, in my opinion, significant because they deflected attention from the requirements of cl 1.13 of the HDCP, which on any view imposed a less onerous burden on the appellant than satisfaction of the elements contained in Helou .
50I accept as correct the submission of the appellant that an unfavourable determination under Helou did not automatically mean an unfavourable determination under cl 1.13 of the HDCP. However, it appears that this is the assumption that both the Commissioner and the respondent have made.
51By exclusively focussing on, and applying, the planning principle in Helou , the Commissioner disregarded the less demanding requirements for permissible demolition contained in cl 1.13 of the HDCP. This is not to say that, contrary to the submissions of the appellant before the Commissioner, the planning principle in Helou was irrelevant. Plainly it was relevant. But this did not mean that the reasoning in Helou could simply supplant the mandatory matters for consideration contained in cl 1.13 of the HDCP.
52Yet the irresistible inference, having regard to the Commissioner's decision both in its totality, and to her specific findings (particularly, her finding that she had not been provided with sufficient evidence that there were no alternate options available for the redevelopment and expansion of the site to justify allowing demolition of the two dwellings: at [79]), is that this is precisely what occurred.
53Of course the question of the weight to be given to the matters contained in cl 1.13 of the HDCP or to those articulated in Helou was ultimately a matter for the Commissioner. However, even on a generous reading of the Commissioner's reasons, I cannot find any evidence, either explicit or implicit, that the Commissioner turned her mind to the actual substance of cl 1.13 of the HDCP, or that she considered the clause but proceed to give it no weight in light of the planning principle Helou . Had she engaged in either of these tasks no criticism could ensue.
54Because of the lesser threshold contained in cl 1.13 of the HDCP in respect of demolition, it was incumbent upon the Commissioner to have regard to the clause in order to consider whether it ought to apply to the development proposal, particularly the separate request to demolish the buildings, or whether it was appropriate to apply the principle contained in Helou . From a study of the form, structure and content of the Commissioner's reasons I am not sufficiently confident, and I am therefore unwilling, to draw an inference that this process occurred.
55To the extent that the respondent relied heavily on the decision in BDSI , I agree with the submission of the appellant that it is distinguishable from the facts of present case. In BDSI the Court found that the hearing was conducted on a merit basis without any reference to the terms of the relevant clause. The parties were bound by their conduct in this regard (at [39] and [40]). This is to be contrasted with the present situation. Unlike BDSI , cl 1.13 remained a live issue and the factual findings made by the Commissioner did not, in my opinion, demonstrate that the questions posed by it were addressed.
56Accordingly, I find that the Commissioner erred in law by failing to consider cl 1.13 of the HDCP.
57But does this error vitiate the Commissioner's decision? That is to say, is the error sufficiently material to the decision made that her decision must be set aside? In my opinion, this result is inevitable once it is accepted, as I do, that cl 1.13 of the HDCP and the planning principle in Helou upon which the decision was premised were not coincident and that the former required satisfaction of a different - and less demanding from the perspective of the appellant - mental state from the Commissioner. It therefore follows that the decision must be set aside.