Syncept Chatham Pty Ltd v City of Ryde Council

Land and Environment Court (NSW)|2019-10-17|Before: Duggan J, Mr J

Nature of proceedings

The Applicant in these proceedings is the owner of two adjoining parcels of land situated at 68-70 Chatham Road, Denistone (the Land). The Land is located in the Ryde Local Government Area. The Applicant lodged a development application with the Respondent (the Council) to redevelop the Land and, as part of that proposal, sought approval to demolish the two existing dwellings on the Land (the DA).
During the course of the consideration of the DA the Council resolved to place an Interim Heritage Order (IHO) on the Land.
The Applicant appealed the IHO in class 1 of the Court's jurisdiction. It raised the validity of the IHO in the class 1 proceedings. That issue was objected to by the Council as being outside the Court's class 1 jurisdiction. As a consequence the Applicant commenced these class 4 proceedings seeking to challenge the making of the IHO.
For the reasons indicated below I find that the IHO was not validly made, in that the Council failed to consider a preliminary heritage assessment of the item as required by paragraph 1(a) of the Minister's authority granted to the Council pursuant to s 25(1) of the Heritage Act 1977. I also find that in the exercise of my discretion it is appropriate that I make the declaration sought by the Applicant with respect to this finding.

Background facts

The relevant events relating to the making of the IHO are as follows: Council undertakes heritage study of proposed conservation area called "Outlook Estate" which included the two dwellings on 2004: the Land. Council resolves not to make conservation area but amends the Development Control Plan (DCP) to include the Outlook Estate as a character area under the DCP. Ministerial order authorising local councils to 12 July 2013: make Interim Heritage Orders under s 25 of the Heritage Act published in Government Gazette (the Authority). 28 November 2017: Council resolved to undertake a new comprehensive city wide heritage study. Development Application lodged with 3 December 2018: Respondent for the demolition of the dwellings and the redevelopment of the Land. The DA remains undetermined. 9 January 2019: DA referred to Council Heritage Advisor, Mr Michael Edwards for heritage assessment. 23 January 2019: Mr Edwards provides a written Heritage Referral Response (the Edwards Report). GML Heritage (GML) requested to provide 12 February 2019: heritage advice with respect to the DA and the prospect of an IHO. GML provides written report to Council 20 February 2019: including opinions relating to the proposed making of an IHO (the GML Report). Mr Govender, the Council's Manager, Urban Strategy, in company with Mr Edwards 22 February 2019: drafts Mayoral Minute to be considered at Council, recommending, inter alia, the making of an IHO relating to the Land. Draft Mayoral Minute emailed to the Mayor. Council meeting at which Council considers Mayoral Minute and Council resolved (the 27 February 2019: Council Resolution), inter alia: That Council delegate the (sic) General Manager to place an Interim Heritage Order over 68-70 Chatham Road, Denistone; and … IHO No. 5 published in Government Gazette which identified the Land in the following terms: 28 February 2019: All that parcel of land known as Lots 13-14 in DP 9166 (also known as 68 and 70, Denistone Road) shown edged heavy black on the plan catalogued Interim Heritage Order No. 5 in the office of the Council of the City of Ryde. Revocation of IHO No. 5 and making of IHO No. 6 published in Government Gazette. 1 March 2019: Apart from the reference to the IHO number and the street name, IHO No. 5 and IHO No. 6 (including the plan) were identical. After publication in the Gazette it became apparent to the Council that the street address had erroneously referred to the Land as being situated at Denistone Road 29 March 2019: instead of the correct street name, being Chatham Road. The balance of the IHO and the plan were accurate. The Council officers determined to revoke IHO No. 5 and replace it with a new IHO No. 6. 1 April 2019: Class 1 Appeal from IHO No. 6. 7 August 2019: Class 4 proceedings commenced. Department of Planning Industry and 9 August 2019: Environment grant Gateway determination to the Planning Proposal. Planning Proposal placed on exhibition with 11 September 2019: public consultation to conclude on 10 November 2019.

Who made the impugned decision?

There was initially some dispute as to who made the decision to make the IHO - either the Council or the General Manager under delegation contained in the Council Resolution or by his general delegation (Exhibit 2), or pursuant to his obligation to give effect to the Council resolution as required by s 335 of the Local Government Act 1993. The Council submitted that the Council was the decision maker, the decision being evidenced by the Council Resolution, and the General Manager was delegated the administrative function to give effect to the Council Resolution. The Applicant was content for the matter to be determined on this basis as the defects in the decision making were not particular to the identity of the decision maker as such defects, it is said, would apply equally to the Council or its delegate. I have proceeded to determine the matter on this basis.

Ground 2 - Was the IHO made consistent with the provisions of s 25 (2) and condition of authorisation 1(b)?

Ground 2 relates to the validity of the decision to make the IHO. Therefore it does not matter, for the purposes of Ground 2, which of the IHO's were made as, if the Applicant succeeds on this ground, the decision was flawed and the Council had no power to make either IHO. If this Ground is made out there is no need to determine Ground 1. I will deal with Ground 2 first.
Ground 2 raises for determination the following issues: 1. Did the Council consider a "preliminary heritage assessment" in accordance with paragraph 1(b) of the Authority? 2. If the answer to the question in (a) is "yes", what are the necessary opinions the Council is required to form for the purposes of paragraph 1(b) of the Authority? Did the Council form the necessary opinions? 3. If the answer to either question (a) or (b) is "no", is the non-compliance with the requirement of paragraph 1(b) of the Authority sufficient to give rise to invalidity of the IHO? 4. If the answer to (c) is "yes", should the Court, in the exercise of its discretion, decline to make the declaration and the relief sought?
For the purposes of considering Ground 2 both parties accept that applying paragraph 1(b) of the Authority to the facts of this case, the relevant 'item" as defined in the Heritage Act to which the IHO is said to relate is the Land (with its buildings and curtilage) not as individual heritage items but as an item in so far as the Land has the capacity to contribute to the local heritage significance of a precinct, being a proposed conservation area.
As the Applicant is the party asserting invalidity it must establish the asserted error/s on the balance of probabilities, in order to be entitled to the making of the declarations and relief sought: Parramatta City Council & Anor v Hale 47 LGERA 319 at 345; GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 at 667 [83].

Legislative provisions

The Minister is vested with the primary power to make an Interim Heritage Order pursuant to s 24 of the Heritage Act, which provides: 24 Minister can make interim heritage orders for items of State or local heritage significance (1) 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. (2) The Heritage Council is to provide advice to the Minister on the making of interim heritage orders, either at the request of the Minister or on its own initiative.
The Heritage Act then provides that the Minister may authorise a local council to make Interim Heritage Orders. Such an authority, when made, does not supplant the Minister's power but supplements it. The power to make an authority and the conditions of the exercise of an authority are contained in s 25 that provides: 25 Minister can authorise councils to make interim heritage orders for items of local heritage significance (1) The Minister may, by order published in the Gazette, authorise a council to make interim heritage orders for items in the council's area. (2) A council authorised under this section may make an interim heritage order for a place, building, work, relic, moveable object or precinct in the council's area that the council considers may, on further inquiry or investigation, be found to be of local heritage significance, and that the council considers is being or is likely to be harmed. (3) An interim heritage order made by a council is of no effect in so far as it applies to any of the following items: (a) an item to which an interim heritage order made by the Minister applies, (b) an item listed on the State Heritage Register. (4) An authorisation under this section can be given subject to conditions and a council cannot act in contravention of the conditions of its authorisation. (5) The Minister may at any time by notice published in the Gazette withdraw a council's authorisation or change the conditions of its authorisation. The withdrawal of a council's authorisation does not of itself affect any interim heritage order made before the authorisation was withdrawn.
Both parties accept that any authority made under s 25, by its terms, cannot exceed the power referred to in s 25(2) of the Heritage Act, under which such an authority is made.
By Order dated 22 April 2013, the Minister made an authority for local councils (including Ryde City Council) to make Interim Heritage Orders. The Authority was published in the Government Gazette on 12 July 2013.
Relevantly, the Minister stated that by order: 2. authorise the local council's identified in Schedule 1 to make Interim Heritage Orders for items in the local council's area in accordance with section 25 of the Heritage Act, 1977 and subject to the conditions listed in Schedule 2.
Schedule 2 then imposed certain "Conditions for Local Councils to make Interim Heritage Orders". Relevantly for the purposes of Ground 2 paragraph 1(b) provided: (1) A council must not make an Interim Heritage Order (IHO) unless: (a) … (b) it has considered a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the Council and considers that : (i) the item is likely to be found on further inquiry and investigation , to be of local heritage significance; (ii) the item is being or is likely to be harmed; (iii) the IHO confined to the item determined as being under threat; and (c) …
Ground 2 relates only to the requirements of condition (1)(b)(i), as the Applicant conceded in oral address that it accepted that the requirements of (1)(b)(ii) and (iii) were met in this case.
There is no definition of "a preliminary heritage assessment" in the Heritage Act or the Authority. The terms "local heritage significance" and "item" are defined in the Heritage Act as meaning: local heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item: (s 4A). item means a place, building, work, relic, moveable object or precinct: (s 4)

Evidence of the making of the decision to make the IHO

The evidence of the Council, in Exhibit B, indicates that the matter was presented to a meeting of the Council on 26 February 2019. The Council was presented with a report entitled "Mayoral Minute: MM5/19 Heritage Protection - 68-70 Chatham Road, Denistone - Mayor, Councillor Jerome Laxale. File Number: URB/08/1/10-BP19/104" (the Mayoral Minute). Page 3 of The Mayoral Minute noted that there were "no attachments for this report".
The Council read, without objection, a number of affidavits. However, the most relevant evidence relating to Ground 2 was contained in the affidavit of its Manager of Urban Strategy, Mr Govender, sworn 11 October 2019. In summary, with respect to Ground 2, Mr Govender attests that: 1. Mr Michael Edwards is, and has been, contracted as Council's Heritage Officer since October 2014: [13]; 2. Mr Edwards was referred the Development Application for his heritage comments on 9 January 2019 [12] and he provided those comments in writing on 23 January 2019: [15],[16]; 3. Mr Govender was requested by Council's Director of City Planning and Environment, Ms Coad, to obtain further heritage advice from Council's external heritage consultants, GML Heritage Consulting (GML) "given the comments provided by Mr Edwards as to the DA": [17(a)]; 4. Depending on the result of the advice from GML he was to draft, with the assistance of Mr Edwards, a Mayoral Minute that sought the making of an Interim Heritage Order: [17(b)]; 5. He sought the advice from GML on 12 February 2019: [18]. He received the GML advice on 20 February 2019: [19]; 6. Relying on the advice from Mr Edwards and GML, and with the assistance of Mr Edwards, he drafted a Mayoral Minute: [22]; 7. He forwarded the draft Mayoral Minute to the Mayor by email on 22 February 2019: [23]; 8. He and Mr Edwards attended the Council meeting on 26 February, 2019 and a Councillor briefing session prior to the meeting. Neither he, nor Mr Edwards, were asked any questions in relation to the Mayoral Minute: [26]-[30]; 9. In order to implement the resolution of the Council to prepare a planning proposal to include the properties in Schedule 5 of its LEP as being an item of local heritage significance, Council was "required to firstly undertake a detailed heritage assessment of the property": [39]. The assessment took place as part of the Council's comprehensive heritage review that had been approved by Council at a meeting on 28 November 2017: [42]. GML had been engaged in 2018 to undertake the comprehensive heritage review and it was completed in late August 2019: [44]. That review recommends the properties be listed as contributory items to a proposed Heritage Conservation Area [46]; 10. The Council resolved on 23 July 2019 to submit the "Planning Proposal - Heritage Review" for gateway determination: [48]. Gateway determination was granted on 9 August, 2019 [53]; 11. The Heritage Planning Proposal is on public exhibition until 10 November 2019: [55].
The Edwards Report and the GML Report were annexed to Mr Govender's affidavit.
The parties accepted that neither the Edwards Report nor the GML Report was actually before the Council at the time of consideration of the Mayoral Minute. The Applicant contended that the failure of any report conforming with the requirements of paragraph 1(b) of the Authority being provided with the Mayoral Minute permitted the inference to be drawn (from the totality of the evidence) that the Council could not have "considered" a required assessment. It contended that, on that basis, it had discharged its relevant onus.
The Council contended that the Court would not draw such an inference from the totality of the evidence as the evidence disclosed that as the GML and Edwards Reports were constructively before the Council, the Councillors should be taken to have considered the reports. In the alternative, the Mayoral Minute was a summary of the GML and Edwards Reports such that the reports before the Council and therefore the Councillors were not required to consider the actual reports in order to satisfy the requirements of paragraph 1(b) of the Authority. Further in the alternative, as the Mayoral Minute was drafted with the assistance of Mr Edwards it was capable of comprising the required assessment. On any of these bases the Council says the Court would be satisfied that the Council had "considered" a required assessment.
The Applicant did not dispute that as the reports formed part of the Council file, the reports were constructively before the Council at the time it made its resolution. However, the Applicant contended that it was not enough for the reports to be constructively before the Council (or even constructively read by the Councillors), what was required was a consideration of the reports, as required by paragraph 1(b) of the Authority, and such consideration must be more than a constructive reading of them. It further contended that the Mayoral Minute was not sufficient to constitute a summary of the reports constructively before the Council, or an assessment relying on Mr Edwards participation in its drafting.

Can the Council be taken to have considered the reports that were constructively before it?

Material in the possession of the Council will generally be considered to be in the possession of the Councillors: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 31. There is a prima facie presumption that the Councillors have read the material on the Council file: Schroders Australia Property Management Limited v Shoalhaven City Council and Fabcot Pty Ltd [2001] NSWCA 74 at [67] and [72]. That presumption is capable of rebuttal and in order to ascertain the effect of the presumption it is necessary to ascertain the party that bears the onus of rebutting the presumption: GPT Pty Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 at [83].
In this case the Authority required the Council to have "considered" an assessment of the type described in paragraph 1(b) as a precondition to the making of the IHO. A requirement to give a nominated thing consideration requires more than a mere advertence to that thing, it must serve as a "focal point for, or constituted a fundamental element in" deliberations: Zhang v Canterbury City Council (2001) 115 LGERA 373 at [64], [74]-[77]; Centro Properties Limited v Hurstville City Council & Anor (2004) 135 LGERA 257 at 266 [37]. I accept the submission of the Applicant that the requirement to have "considered" a report is not met by the mere constructive reading of reports on the Council file. In order for the Court to be satisfied that the Council "considered" the relevant reports a focused consideration of the required assessment is necessary. Further, the consideration of the assessment must comprise a fundamental element in its deliberations. A mere reading of the reports (whether an actual or a constructive reading) is akin to "mere advertence" to the required assessment and would be insufficient, on its own, to provide evidence that the Council could be found to have considered the required assessment.
Therefore, having regard to the requirements of paragraph 1(b), even if the presumption as asserted is applied, the operation of the presumption is insufficient, on its own, to permit an inference to be drawn that the Council gave the reports the "consideration" that was required by paragraph 1(b) of the Authority.

Is a consideration of the Mayoral Minute sufficient to comprise the consideration of a preliminary heritage assessment of the item?

In the alternative, the Council also relies on the Mayoral Minute as evidence that the Councillors "considered" the necessary report/s prior to resolving to make the IHO. The Council contends that the Mayoral Minute was a summary of both the GML Report and the Edwards Report. Whilst it is accepted by the Council that the report/s were not in fact before the Council it contends that the Mayoral Minute was a sufficient summary such that the Court could be satisfied that the reports were for all necessary purposes "considered" by the Council. It relied upon principles such as that in Minister for Aboriginal Affairs v Peko-Walsend Limited (1986) 162 CLR 24 at 30-31 where it was stated: Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.
This principle is not disputed, the Applicant, however, contends that the Mayoral Minute is not a summary of a relevantly required assessment, nor can it, of itself, comprise such an assessment as it was not prepared by a relevantly qualified person, but was a report of the Mayor himself (albeit drafted for him by another), or, a report of Mr Govender (a town planner) assisted by Mr Edwards (who holds the necessary qualifications) but there is no evidence that Mr Edwards's assistance was the expression of opinions in the sense required by the Authority.
The Mayoral Minute (Exhibit B) is comprised of 3 pages. It has 4 section headings: Report Summary; Background; Interim Heritage Order (IHO); and Recommendation. The only part of the report that deals with the values of the two dwellings the subject of the IHO is the section referred to as "Background", the balance of the Mayoral Minute deals with matters unrelated to an assessment as to whether there is or is likely to be found of local heritage significance - as required by paragraph 1(b) of the Authority.
The section titled background states: Background 68 and 70 Chatham Road, Denistone is not listed as an item of heritage significant under the provisions of Ryde Local Environmental Plan 2014. The subject site comprises both 68 and 70 Chatham Road and situated on both sites are single storey, detached style dwelling houses. Both display an overall form and profile, with a number of distinguishing features that define them as belonging to the early 20th century Inter-War period specifically the Inter-War California Bungalow architectural style. The site is directly opposite the heritage listed Darvall Park and also falls within the 'Denistone Character Area'. Also known as the 'Outlook Estate - Contiguous Areas', this precinct takes in the area bound by Burmah, Chatham and Simla Roads, Bellevue Avenue and Trelawney and Beaumont Streets. Council's assessment of the Outlook Estate - Contiguous Areas in 2004, found that the precinct was comprised of a number of relatively intact streetscapes which displayed a high degree of continuum and homogeneity in the Inter-War period built forms, many of which were individually significant. In 2005, Council resolved not to proceed with the listing of the Outlook Estate - Contiguous Areas precinct as heritage conservation area within the Ryde Planning Scheme Ordinance (Ryde PSO), due to community opposition from a small number of individual property owners. Consequently, the Denistone Character Area is not afforded statutory protection in the same way that a heritage item or heritage conservation area is that is listed under Schedule 5 of the Ryde LEP 2014 and the heritage conservation provisions of clause 5.10 of the LEP do not apply. Council's Heritage Advisor has undertaken a preliminary assessment of the property and has described both 68 and 70 Chatham Road as intact examples of modest-scaled Inter-War period houses, displaying features which are attributed to the Californian Bungalow architectural style. While Council's Heritage Advisor does not consider either dwelling to individually warrant heritage listing, the dwellings provide an important contribution to the collective streetscape character, in which modest scaled Inter-War period bungalows are the prevailing housing typology. Council's Heritage Advisor has also undertaken a preliminary assessment of the streetscape and considers Chatham Road to evidence a high degree of consistency and continuity in the Inter-War period bungalows, forming not only an important backdrop to Darvall Park opposite the site (which is heritage listed), but also forming an important wider precinct, with heritage significance through the homogenous character. It is therefore worthy of being retained and protected as a heritage conservation area. Given that 68 and 70 Chatham Road are considered to provide an important contribution to the continuity and homogeneity of the established streetscape, their loss through demolition and the proposed replacement built form, would significantly erode the streetscape and diminish the integrity of the wider streetscape. As the two properties are under imminent threat of harm through demolition, it is prudent that Council resolve to follow the necessary process to impose an Interim Heritage Order (IHO) over the properties in order to investigate and assess the wider significance of the streetscape and their contribution to the streetscape.
A comparison of this section of the Mayoral Minute to the reports of GML Report and the Edwards Report discloses that: 1. The first six paragraphs of the Mayoral Minute are a summary of points from the Edwards Report. None of these paragraphs purport to assess the heritage significance of the relevant item, but rather, are statements of fact; 2. The seventh paragraph of the Mayoral Minute which is said to represent the work of "the Council's Heritage Advisor" is a partial reflection of the Edwards Report where that report states: While I accept that assessment and concur that the dwellings do not warrant individual heritage listing or their retention because of their individual architectural or historical values, the dwellings nonetheless contribute to the collective streetscape character in which modest scaled Inter-War period bungalows are the prevailing housing typology. In this manner, retention of the dwellings is preferred. The HIS reinforces this view by stating "…it is important to note that both dwellings display considerable elements of the Inter-War Californian Bungalow Style and retain associated aesthetic significance…" However, demolition can be supported subject to conditions. 1. The eighth paragraph of the Mayoral Minute, again attributed to the Council's Heritage Advisor, is not representative of any of the opinions expressed in the Edwards Report. He does not assert that he has undertaken a preliminary assessment of the streetscape nor does he express his opinion with respect to it. 2. The GML Report also does not contain the opinions expressed in this paragraph attributed to the Heritage Advisor. The GML Report, at best, states: 68 & 70 Chatham Road, Denistone Nos. 68 and 70 Chatham Road are a pair of single story (sic) Federation detached houses that from part of a large and intact group of Federation and Inter-War houses located along the western side of Chatham Road. Whilst the houses have been the subject of some alterations, their original form and character remain intact and they have a strong contribution to the collective character of the group of houses in Chatham Street. Chatham Street formed part of the Darvall estate subdivision of 1918/19. Major Edward Darvall was subdivided a number of times over several years due to its size. No. 68 and 70 were released in either 1918 or 1919. A newspaper article from 1923 says that residences on Chatham Road are "springing up like mushrooms" and it is likely that these houses were built around that time. They are located opposite Darvall Park, a local heritage item with "aesthetic and research significance as an important area of remnant urban bushland, an endangered rare Turpentine forest community." Our initial review has concluded that the group of houses along Chatham Road (and environs) should be assessed for inclusion within a potential Heritage Conservation Area. The subject houses make a strong contribution to the character and potential significance of the area. Their demolition would interrupt and erode an intact historic streetscape and should be prevented pending further assessment. 1. Relevant of note is that no part of the GML Report expresses an opinion that the dwellings (or the item being the precinct) form: …not only an important backdrop to Darvall Park opposite the site (which is heritage listed), but also forming an important wider precinct, with heritage significance through the homogenous character. It is therefore worthy of being retained and protected as a heritage conservation area. 1. The ninth and tenth paragraphs of the Mayoral Minute are not representative of any opinion in either the GML Report or the Edwards Report and are in fact contrary to the express opinion of Mr Edwards that demolition can be supported subject to conditions and that subject to modifications to the proposal a replacement building can be accommodated within the character of the area.
The first question is: what reports is the Mayoral Minute purporting to summarise? Considering the comparison of the Mayor Minute to the content of the reports as indicated above I cannot accept the submission of the Council that the Mayoral Minute is summarising the GML Report. There is no reference in terms to that report (either as existing in fact or purporting to summarise anything in that report). This finding is further reinforced by the express references in the Mayoral Minute to the "Council's Heritage Advisor". The references in the Mayoral Minute to such person are used in a grammatical manner that describes the person by reference to a proper noun. Grammatically it can only be a reference to a nominated position, rather than an interchangeable person of heritage qualification retained by the Council. The Council has a Heritage Advisor and Mr Edwards has been appointed to that position for some years (as is attested to by Mr Govender at [13]). GML does not hold such a nominated position, notwithstanding that it is retained as a consultant heritage advisor to the Council from time to time. For those reasons I accept the submission of the Applicant that the references in the Mayoral Minute cannot be a reference to the GML Report.
To the extent that it references "a preliminary assessment" undertaken by its Heritage Advisor it is necessary to determine whether those references are a summary of the Edwards Report, and if so is his report "a preliminary heritage assessment" for the purposes of paragraph 1(b) of the Authority.
Paragraph 1(b) of the Authority uses the term "consideration" and the term "consider". The Authority requires the consideration of a "preliminary heritage assessment of the item", the term "consideration" in this context only makes grammatical sense if the word is used to identify the act of deliberation of something to be taken into account. Where the word "consider" is used it must, by contrast, be understood in the sense having regard to something for the purposes of making a decision or forming an opinion.
Applying the grammatically consistent meanings to these terms the Authority anticipates that the assessment will be the focal point in the formation of the opinion relating to whether the item has or is likely to have local heritage significance. In order for paragraph 1(b) to be given any real work to do the assessment must "assess" the likelihood of the "item" being found to be of local heritage significance as that term is defined in the Heritage Act. On the basis the relevant "item" is the proposed conservation area (see [11] above) that assessment must be of that proposed conservation area.
I accept the Applicant's submission that when the Edwards Report is considered against the requirements of paragraph 1(b) of the Authority it cannot be described as a "preliminary heritage assessment of the item". Firstly, Mr Edwards does not purport to make any assessment of the potential heritage values of a conservation area. His report in terms stated: Reason for the heritage referral The development proposal has been referred for heritage consideration as the subject site is with the vicinity of Darvall Park, which is an item of heritage significance, listed on Schedule 5 of the Ryde LEP 2014. The site is also situated within the Denistone Character Area (Outlook Estate).
The Edwards Report makes no reference to an assessment of the proposed heritage values of the proposed conservation area he merely notes that Council resolved in 2017 to undertake a new heritage study to "…address gaps in the current heritage listings…" and that the area in the past has been the subject of heritage assessment that identified it as having local heritage significance, but the Council declined to list it as a conservation area. The balance of his assessment considered the application of the relevant parts of Council's DCP as it applied to the Development Application. Having regard to the expressed purpose of the report and its content, this referral report cannot be said to meet the requirements of paragraph 1(b) of the Authority. Accordingly, I find that it cannot form the basis of a necessary assessment, if it was provided to the Council as a complete report or if it was provided to the Council in summary form.
Even if the Edwards Report was capable of being a preliminary heritage assessment of the item, I accept the Applicant's submission that the Mayoral Minute did not summarise that report in such a fashion as it could be said to have been considered by the Council. As outlined above, the references to the opinion of Council's Heritage Advisor are not summaries of the Edwards Report in terms. There are differences not only in language (that is, there is no verbatim quote of the report) but also in substance. The reference to opinions attributed to the Advisor that are not present in his report cannot be said to be a summary of that report. Further, the statements introduce evaluative opinions that are also not present in the report. For example at paragraph six of the Mayoral Minute identified at [33] above it is said that the Advisor determined that "…the dwellings provide an important contribution to the collective streetscape character…" (emphasis added) when in fact the report stated "…the dwellings nonetheless contribute to the collective streetscape character…" (emphasis added). The introduction of evaluative opinions is a gloss on the report and cannot, therefore, be said to be a summary of it.
To the extent the Council relies upon Mr Edwards's assistance to Mr Govender in drafting the Mayor Minute as permitting an inference that the opinions referred to in the Mayoral Minute are a representation of Mr Edwards's opinion, irrespective of whether it formed part of his report, I do not accept that such inference is available. It is clear that Mr Edwards provided drafting assistance. However, the evidence of Mr Govender is that the drafting of the Mayoral Minute was undertaken "[r]elying on the advice received from GML that (sic) from Mr Edwards…". That evidence does not indicate that a further or other assessment had been undertaken by Mr Edwards so as to justify either the inference that an assessment of the heritage significance of the proposed item, being the precinct, had been undertaken or that he had changed his opinion that the character of the area could accommodate demolition and replacement of the dwellings. On the evidence available to me, at best, it appears open to infer that Mr Govender drafted the Mayoral Minute expressing his own views ascertained from the matters he says he considered, or that Mr Edwards suggested incorporating those words without him undertaking the assessment to which they are said to relate. On either basis the Mayoral Minute is not a summary of the "assessment" by the appropriately qualified person, but either an opinion of a person not appropriately qualified or the drafting of words by a qualified person not based upon a relevant assessment of the item- either is not authorised by paragraph 1(b) of the Authority.
The Council also contends that as Mr Edwards and Mr Govender were present at the Councillor briefing and the Council meeting "…[t]he Councillors in fact had direct access to the source of the heritage advice itself": Council's Supplementary Submission at [19]. I do not accept this submission. There is no evidence that the Councillors knew (or could have ascertained from the text of the Mayoral Minute) that Mr Govender was the author of the Mayoral Minute or that Mr Edwards assisted in its drafting. The Mayoral Minute was attributed to the Mayor, unlike a report submitted to the Council where the author is identified as a member of Council's professional staff. Further, the evidence is that no Councillor asked any questions of either person (Affidavit of Mr Govender at [30]) such that the Mayoral Minute could somehow be supplemented by material in Mr Edwards's or Mr Govender's intellectual possession (as opposed to a written document which may be constructively before the Councillors).
For those reasons I find that the Mayoral Minute was not a summary of the Edwards Report or the GML Report such that it could be said to comprise a consideration of those reports (either alone or in combination) for the purposes of paragraph 1(b) of the Authority.
Having regard to the totality of the evidence, the inference should be drawn that the Council had not "…considered a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the Council.." before it made the Council Resolution to make an IHO.

Does the failure to consider the assessment as required by paragraph 1(b) of the Authority lead to invalidity of the IHO?

The Council submits that if I find that the Council made the IHO contrary to the conditions of the Authority it would not necessarily lead to invalidity of the IHO. The Council relies upon the well-known statement of statutory construction in Project Blue Sky Inc. and Ors. v Australian Broadcasting Authority (1998) 194 CLR 355 at [91] where it states: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is to be ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors to give guidance on the issue. And at [93]: …a better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid….In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".
The Council submitted that, having regard to the language and the context of the statute, the requirement to comply with the conditions of the Authority were not matters which indicate that non-compliance would result in invalidity. The Council submitted that such an intention was derived from: 1. The object and purpose of the legislation was protective. It would be contrary to that purpose if the protection of an IHO to prevent demolition could be lost by the Council not complying with conditions imposed on the Authority: Council submissions [33(a) and (b)]; 2. The Heritage Act indicates an intention to make the conditions on the Authority of "lesser importance" as it makes provision for it in s 25(4) which is separate from the power granted to the Council to make IHO's which is contained in s 25(2). In particular, the language of s 25(4) is that: "a council cannot act in contravention of the conditions of its authorisation" suggest that compliance with the Authority is not an "essential preliminary" to the exercise of the authorisation": Council submissions [33(c)]; 3. The mere fact that the statutory language is expressed in imperative language is not determinative of whether a breach results in invalidity: Council submissions [33(d)]. The Heritage Act uses explicit language where compliance is necessary for validity, such as that in s 25(3), and the language of s 25(4) does not contain such explicit language: Council submissions [33(e)]; 4. The Authority in paragraph 1(b) only requires the Council to give "consideration" to the assessment. The Authority does not require the Council to accept the recommendations of the preliminary heritage assessment, it can choose not to adopt it in whole or in part. This indicates that a non-compliance with the requirement to give consideration to the assessment is not considered fundamental to the exercise of the power to make an IHO; 5. There would be great public inconvenience if an IHO was held to be invalid merely as a consequence of failing to conform with the requirements of the Authority: Council submissions [33(f)].
For the reasons that follow, I do not accept that there is available a construction of the Heritage Act, or the instrument comprising the Authority, that would support a finding that the legislative intent was not to invalidate an act undertaken contrary to the requirements of paragraph 1(b) of the Authority. I find that the operation of s 25 of the Heritage Act and the terms of the Authority provide a limitation on the power of the Council to make an IHO and a breach of the condition contained in paragraph 1(b) of that Authority (being a breach of s 25(4) of the Heritage Act) is intended to comprise an action beyond the scope of the power conferred and is therefore invalid
Whilst the stated objects of the Heritage Act include at s 3: (b) to encourage the conservation of the State's heritage … (d) to provide for the interim protection of items of State heritage significance and that such objects may be generally described as "protective", it is also part of the legislative regime that there be a primacy given to decisions of the Minister and the Heritage Council and that the capacity for a local council to make such decisions be confined to limited stated circumstances. This regime is explicable as it recognises that the primary subject matter of the Heritage Act are items of "State" rather than "local" significance. Further, it recognises that there is a separate regime available to local councils to protect items of local heritage significance through the planning process - such as the Council has done in this case by listing items in its Local Environmental Plan (LEP). This subordination of the local council decision making is further reinforced by the discretion granted to the Minister to authorise local councils to make IHO's rather than conferring the power directly on a council through the legislative provisions. There is also only a right of appeal against a decision to make an IHO by a council and not one made by the Minister. The subordinate nature of a council's power to make an IHO indicates a legislative intent that the power is qualified by the Authority granted by the Minister and is therefore an "essential preliminary" to the exercise of that power. These factors indicate a legislative intent that the exercise of the power in breach of the condition of the conferral of the power would produce invalidity.
Further, the fact that the constraint in s 25(4) is contained in a separate subsection to the power given to the Minister to make an authority in s 25(1) does not indicate a different legislative intent to that referred to above. Rather, the statutory language by its emphasis on a Council not acting in contravention of a condition, indicates the compliance with the authorisation is a limitation on the power referred to in s 25(2), not that the power is independent of the conditions that limit the exercise of the power granted.
The broader context of the legislation also indicates that the conditions are limitations on the grant to a council of the power to make an IHO. Section 28(3) identifies that certain failures or errors will not give rise to invalidity. Compliance with the conditions of an authorisation is not expressed as one of the circumstances. The recognition that an IHO may be invalid also indicates a recognition that the power to make an IHO is subject to limitation, either in the Heritage Act itself, or by extension, a limitation imposed by an instrument made under that Act.
The terms of paragraph 1(b) of the Authority also does not indicate an intention that an act done in breach of its requirements would be valid. Whilst it is accepted that imperative language is not an absolute indicator that the power is constrained, in this case the imperative language in the context of the requirements indicates that the provisions of paragraph 1 are intended to be an essential precondition to the exercise of the power. The language of the Authority identifies the circumstances that must be present in order for a council to have authorisation to make the IHO.
Accordingly, for the reasons outlined above, I accept the Applicant's submissions that an action undertaken in breach of paragraph 1(b) of the Authority is a breach of s 25(4) of the Heritage Act that renders the IHO invalid.

Discretion

The making of any order or declaration in this Court is discretionary. The principles for the exercise of that discretion are not mandated except to observe that the discretion is to be exercised judicially: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-240.
The relevant discretionary considerations submitted in this matter do not persuade me to decline to make the declarations sought. The failure of the Council in this case was fundamental to the proper exercise of the power conferred. The Council was capable of complying with the requirements of the Authority and therefore the Heritage Act. The manner that it chose to exercise the power was beyond what was reasonably anticipated by the Authority.
Whilst power being exercised is protective it also has the effect of impacting upon the otherwise available rights of a landholder. Such powers must be exercised with care in accordance with the limits imposed that are intended to ensure that the power is exercised only in appropriately justified circumstances. The faith in the system is undermined if Council was able to impose an IHO and affect a landowner's otherwise lawful entitlements under the Environmental Planning and Assessment Act 1979 without due regard to the legal framework in which such power was intended to be exercised.
I acknowledge the Council's submission that a finding of invalidity and the making of a declaration would have the consequence that the dwellings may be demolished without the need to obtain development consent provided such demolition occurs prior to the planning proposal coming off public exhibition. However, this is the state of affairs that exists under the relevant planning law of this state and is only limited here by the imposition of the IHO which I have found was not validly made. The adverse consequence of the Council's actions should not be borne by the landowner.
Further, the findings made by me do not preclude the protection (if appropriate) of the item the subject of these proceedings. The Heritage Act permits the Council to make an IHO (now there having not been one already validly made) if it does so in conformity with the Authority. Alternatively, the Minister can make an IHO at any time in conformity with s 24 of the Heritage Act. Further, where the item is not the subject of an IHO the Minister or the Chairperson of the Heritage Council may make an order protecting the subject matter of the order pursuant to s 136 of the Heritage Act.
For those reasons, I propose to make the declaration sought by the Applicant (subject to minor changes to the reference to the decision) in prayer 1 of the Amended Summons. In light of the terms of the declaration, I do not consider the consequential relief in prayer 2 of the Amended Summons is necessary. I decline to make the consequential orders sought in prayer 3 as the Council, as I note above, is able to make an IHO in accordance with the Authority.
As the determination of this issue fully determines the proceedings it is not necessary for me to consider the other issues that relate to Ground 2 or Ground 1.

Costs

In these proceedings, the Applicant having been successful, the usual order as to costs should be made. I note that without objection I indicated that each party should pay their own costs of the appearance on the first day of the hearing and I will make orders reflecting this position.

Orders

The Court: 1. Declares that any Interim Heritage Order made by the Respondent pursuant to the resolution of the Council on 27 February 2019 pursuant to s 25 of the Heritage Act 1977 in respect of the land known as Lots 13 and 14 DP 9166 located at 68-70 Chatham Road, Denistone was made in breach of paragraph 1(b) of the Ministerial Authority made on 12 April 2013 and is invalid; 2. Orders that the Respondent is to pay the Applicant's costs of the proceedings excluding costs for the hearing on 4 October 2019; 3. Orders that the Amended Summons be otherwise dismissed; 4. The exhibits are returned. [Note: Order 2 suspended for 14 days from 8 November 2019 for further submissions by the parties on the issue of costs].

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: 08 November 2019

(2004) 135 LGERA 257

(2001) 115 LGERA 373

At a glance

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Judgment (14 paragraphs)

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Cases Cited (7)

Cited By (2)