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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NATIONAL TRUST of AUSTRALIA (ACT) v ACT HERITAGE COUNCIL & ANOR (Administrative Review) [2016] ACAT 41
AT 97 of 2015
Catchwords: ADMINISTRATIVE REVIEW –– statutory construction – section 40 of the Heritage Act 2004 – the provisions of the Act must be read in the context of the Act as a whole - heritage significance not the only or primary consideration at registration - multiple statutory obligations to be considered
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Heritage Act 2004 ss 3, 3A, 8, 10, 11, 12, 18, Part 5, 28, 29, 32, 33, 37, 39, 40, 60, 61 Part 6, Part 10B, Parts 11-13, Parts 15-17
Legislation Act 2001 ss 139,140, 141,146
Planning and Development Act 2007 ss 124A, 139, 148, 162
Cases cited: In re The Municipal District of Lambton (No 2) (1899) 20 LR (NSW) 378
National Trust of Australia (ACT) v ACT Heritage Council [2015] ACAT 52
Project Blue Sky Inc v Australian Broadcast Authority (1998) 194 CLR 355
Tasker v Fullwood [1978] 1 NSWLR 20
Papers/Texts Cited: Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011)
Tribunal: President E Symons
Senior Member A Davey
Date of Orders: 13 May 2016
Date of Reasons for Decision: 13 May 2016
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ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 97/ 2015
BETWEEN: NATIONAL TRUST OF AUSTRALIA (ACT)
Applicant
AND:
ACT HERITAGE COUNCIL
Respondent
AND:
CONRAD GARGETT ANCHER MORTLOCK
WOOLLEY
Party Joined
TRIBUNAL: President E Symons
Senior Member A Davey
DATE: 13 May 2016
ORDER
The Tribunal orders that:
- The decision under review is confirmed.
………………………………..
General President L Crebbin
for and on behalf of the Tribunal
REASONS FOR DECISION
Summary
1. The reasons below explain why the Tribunal has confirmed the decision under review.
2. The Tribunal has concluded that, firstly, in construing section 40 of the Heritage Act 2004 (‘the Act’) by reference to sections 139, 140, and 141 of the Legislation Act 2001 (‘the Legislation Act’) and reading the Act as a whole, the Heritage Council is not limited to considering only heritage concerns in identification of heritage significance or that heritage concerns are to be the primary focus at the time of registration. The Tribunal has concluded the Council is required to balance the multiple objectives required of it under the Act at the time of registration, namely
· the recognition, registration and conservation of places having cultural heritage significance;
· the need to provide a system integrated with land planning and development to consider development applications;
· the need to maximise ‘the community’s ability to benefit from the places and objects’ in contemplation for registration;
· comments obtained during the process of public consultation about registration of a place or object; and
· any direction given by the Minister.
3. Secondly, the Tribunal is satisfied that the Council followed the correct procedure in making the decision on 19November2015.
4. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the members who heard the application.
5. The applicant is the National Trust of Australia (ACT) which shall be referred to as ‘the applicant’ throughout these reasons; the respondent, the ACT Heritage Council, shall be referred to as ‘the respondent’ or ‘the Council’ and the party joined, Conrad Gargett Ancher Mortlock Woolley, shall be referred to as ‘the party joined’.
6. The relevant republication of the Heritage Act 2004 (‘the Act’) that applies to these proceedings is Republication 20.
The application
7. The applicant has applied to the Tribunal for review of a decision of the Council taken on 19November 2015 to register the Northbourne Housing Precinct Representative Sample (‘the representative sample’)[1] for the purposes of section 40 of the Act.
8. The original designer of the Northbourne Housing Precinct in 1959 - 1960s, was Sydney Ancher, from the Sydney architectural practice of Ancher, Mortlock and Murray. This practice subsequently became Conrad Gargett | Ancher Mortlock Woolley. By order of the Tribunal on 10February 2016, Conrad Gargett Ancher Mortlock Woolley was made a party joined in these proceedings.
9. The contentions of the applicant and the party joined were similar. Essentially, they say that instead of deciding to register a representative sample, the Council should have registered the entire Northbourne Housing Precinct.
10. The Council’s contentions were that the decision of 19 November 2015 to register a representative sample, namely 17 of the 62 buildings comprising the Northbourne Housing Precinct, was a proper exercise of the discretion vested in it under the Act and that the decision under review should be confirmed.
Background
11. The Northbourne Housing Precinct was a public housing initiative of the National Capital Development Commission between 1959 and 1962.[2] The precinct occupies about half of the Northbourne Avenue frontages between Macarthur Avenue and Wakefield Avenue (at the southern end), and Murdoch and Morphett streets (at the northern end). On the western side it consists of block 8 section 51 Lyneham. On the eastern side it is made up of blocks 40-41 section 6, block 1 section 12[3] and block 4 section 2 Dickson.
12. Within the Northbourne Housing Precinct there were 62 buildings (of which two have now been demolished), of five building types. The decision under review registered 17 of the 62 buildings and included a sample of each of the five building types. The five types are (1) the four storey Bachelor Flats (otherwise known as Bedsitter Flats) at the northern end of the precinct on both sides of Northbourne Avenue (named the Lyneham and Dickson flats), (2) the Pair Houses (between the western side of Northbourne Avenue and De Burgh Street Lyneham), (3) the three storey flats (named the Owen Flats) between the western side of Northbourne Avenue and Owen Crescent Lyneham, (4) the three storey Maisonettes between the eastern side of Northbourne Avenue and Karuah Street Dickson, and (5) the Garden Flats (otherwise known as Courtyard houses) between Karuah and Dooring streets Dickson.
13. The Council decided to provisionally register the entire Northbourne Housing Precinct under section 33 of the Act[4] on 18September 2014.
14. By this time the Council was aware of development application DA201425880 (referred to as ‘the first DA’), which the Tribunal understands was submitted by Indesco Pty Ltd on behalf of the Land Development Agency (‘LDA’) on 3 July 2014. This sought approval for the first stage of demolition of existing buildings in the precinct and related to the three bachelor flats on the Dickson side of Northbourne Avenue on blocks 40 and 41 section 6 Dickson, structures and pavement, associated landscaping, paving and other site works.[5] The Council was consulted under part 10 of the Act and section 148(1) of the Planning and Development Act 2007. It gave written ‘heritage advice’ to the ACT Planning and Land Authority (‘ACTPLA’) on 29 July 2014 in relation to the first DA. In its advice the Council sought further information in relation to the potential for upgrading the existing buildings for adaptive re-use.[6]
15. At the time of the first DA, and the Council’s response[7] to ACTPLA on 29July 2014, the heritage status of the Northbourne Housing Precinct was that it had been nominated under section 28 of the Act for registration, but had not yet been assessed by the Council. By the time of the first of the two amendments to the first DA on 8 October 2014, the (entire) precinct had been provisionally registered on 18 September 2014.
16. The Council provided written heritage advice for each of the proposed amendments on 29 October 2014 and 12 December 2014. In the 29October2014 advice the Council referred to the additional information it had sought in relation to the first DA. It advised inter alia that, having received and considered that information, the proposed development would have a detrimental impact upon the heritage significance of the Northbourne Housing Precinct and that if the demolition was to proceed there was no way of avoiding or minimising the impact of the development on the precinct.
17. By the time the advice for the second amendment was provided on 12December2014 the Council had completed the public consultation about the provisional registration of the (entire) precinct. In response to that consultation the Council recommended reducing the boundary for the final registration of the precinct to include only the northern block of (bachelor) flats in Dickson and not to include the central and southern blocks of (bachelor) flats. On that basis, the Council advised the LDA it did not object to the demolition of the central and southern blocks of flats and that “the proposed development is unlikely to detrimentally impact upon the heritage value of the place.”[8]
18. On 17 December 2014 the first DA, as amended, was partially approved and partially refused, so as to exclude the northernmost bachelor flat tower in Dickson and regulated trees.
19. The Council made a decision[9] to register a sample of the Northbourne Housing Precinct on 12February 2015, under section 40 of the Act.
20. On 6 March 2015 the applicant lodged an appeal with the Tribunal seeking review of the Council’s decision.
21. On 22 May 2015 the tribunal determined that it lacked jurisdiction to hear the applicant’s appeal and the application was dismissed.[10]
22. On 16 March 2015 ACTPLA issued a decision on reconsideration of DA201425880 (the first DA, as amended up to that date) allowing the demolition of all except the northernmost block of Dickson Flats and the removal of four of the regulated trees and of associated landscaping and paving on blocks 40 and 41. In that decision ACTPLA referred to the earlier advices from the Council dated 29 July 2014, 29 October 2014, 12 December 2014 and to further advice from the Council dated 5 February 2015 stating:
… the proposed reconsideration of the partial refusal is unlikely to detrimentally impact upon the heritage values of the place, noting that the Heritage Council did not object to the removal of the trees in its advice on the original application.[11]
23. On 9 June 2015 DA201527481 (‘the second DA’)[12] was lodged by Indesco Pty Ltd for the demolition of existing buildings, structures and pavements in the entire precinct (with the exception of two of the bachelor flats at the northern end of the precinct, one in Dickson and one in Lyneham, and one group of nine blocks of pair houses between De Burgh Street and Northbourne Avenue on the Lyneham side).
24. The Council provided its advice and ‘heritage impact assessment’ on the second DA to ACTPLA on 30June 2015.[13] It said that the proposed development would have a detrimental impact on the heritage values of the place on the basis of the heritage assessment and would have a significant adverse impact under section 124A of the Planning and Development Act 2007.
25. On 16 July 2015 the applicant sought judicial review in the ACT Supreme Court. On 30 July 2015, with the consent of the parties, the Council’s decision of 12 February 2015 was set aside by the ACT Supreme Court. As a consequence, the Council’s provisional registration of 18 September 2014 expired and the place had no heritage status due to the provisions of the Act at that time.[14]
26. The applicant nominated the entire precinct for registration on 13August2015.
27. On 3September 2015 the Council made a decision to provisionally register the Northbourne Housing Precinct Representative Sample under section 33 of the Act.[15]
28. On 9September 2015 the second DA was amended to seek approval to demolish the buildings that were not covered by the Council’s decision to provisionally register the 17 buildings in the representative sample.
29. On 7October 2015 the Council advised ACTPLA that the development proposed by the second amended DA was now unlikely to detrimentally impact upon the heritage values of the place.[16] The Council reiterated its previous advice in the heritage assessment of 30 June 2015 and requested the retention of the existing network of pathways and plantings within each building curtilage to reinforce the original planning layout and building siting arrangements.
30. On 19November 2015 the Council made a decision to register the Northbourne Housing Precinct Representative Sample under section 40 of the Act.[17] It is this decision of 19November2015 that is the subject of review.
31. An image of the Registered Northbourne Housing Precinct Representative Sample Registration Boundary was Exhibit R6.
32. The further amended second DA was given conditional approval by the Minister on 24November 2015, providing for demolition of all buildings save for the 17 buildings registered by the decision under review, and effectively replacing the first DA.[18] Demolition of two of the bachelor flats took place from 24February 2016 under the approved second DA.[19]
32. On 22 December 2015 the applicant lodged an application to review the Council’s decision of 19 November 2015.
The hearing
33. The hearing took place over three days commencing 29 March 2016.
34. The applicant was represented by Mr Richard Arthur of counsel, instructed by MrEric Martin, and called on the written and oral evidence of MrGraeme Trickett as an expert witness. The party joined was represented by MrAndrewFreer and also relied on the statement of MrTrickett. The respondent was represented by MrRobertClynes of counsel, instructed by MrLeszekStawsky of the ACT Government Solicitor, and called upon the written and oral evidence of MrDavid Flannery, Chair of the ACT Heritage Council.
Interim Application
35. On 22 March 2016 the respondent Council filed an application for orders seeking to exclude the evidence proposed to be adduced from Mr Trickett on the basis that he is a sessional member of the tribunal. It was submitted there were grounds for apprehended bias that might prevent the Tribunal, however it was constituted, from demonstrating natural justice and procedural fairness in its deliberations.
36. This application was dealt with at the commencement of the hearing on 29March2015. After receiving submissions from all parties, and considering the issues and the authorities, the Tribunal reserved its decision. On 30 March 2016 the Tribunal delivered oral reasons and decided, in dismissing the application, that a case of apprehended bias had not been made out and the evidence should not be excluded.