Mulpha Australia Limited v Central Sydney Planning Committee [2018] NSWLEC 179

Mulpha Australia Limited v Central Sydney Planning Committee [2018] NSWLEC 179

Section 57(1)(e) of the Heritage Act 1977 requires the Heritage Council to consider whether there is a relevant qualitative nexus between the proposed development and the land on which the heritage building is situated. The Council erred by confining GTAs solely to the listed building and curtilage, when its own findings showed the proposed tower development outside the curtilage would materially affect the heritage significance of the listed item. The Heritage Council was required to exercise approval/refusal powers over the entire development to the extent of that nexus. Statutory construction of 'land' in s 57(1)(e) is not limited per se to the curtilage, but is determined case by case...

Parties
Applicant: Mulpha Australia Limited; First Respondent: Central Sydney Planning Committee; Second Respondent: Heritage Council of New South Wales; Third Respondent: Stamford Property Services Pty Ltd
Jurisdiction
Australia
Judgment Date
12 November 2018
Procedural Posture
Judicial Review / Principal Judgment
Outcome
Relief granted—the Heritage Council's construction of its statutory role was incorrect and a jurisdictional error established.
Legal Topics
Judicial Review—integrated Development, Statutory Interpretation—heritage Act, Heritage Approval Requirements, Scope of Approval Authority, Construction of 'land' and 'in Relation To'
Planning and Environment Law Administrative Law Judicial Review—integrated Development Statutory Interpretation—heritage Act Heritage Approval Requirements Scope of Approval Authority Construction of 'land' and 'in Relation To'

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Parties

Mulpha Australia Limited

Applicant

Central Sydney Planning Committee

First Respondent

Heritage Council of New South Wales

Second Respondent

Stamford Property Services Pty Ltd

Third Respondent

Procedural Posture

Judicial Review / Principal Judgment

Legal Issues

  1. 1 Whether the Heritage Council lawfully limited its General Terms of Approval (GTAs) to the building's curtilage only, rather than the whole development application
  2. 2 Proper statutory construction of 'land on which the building is situated' in s 57(1)(e) of the Heritage Act 1977 and the expression 'in relation to'

Ratio Decidendi

Section 57(1)(e) of the Heritage Act 1977 requires the Heritage Council to consider whether there is a relevant qualitative nexus between the proposed development and the land on which the heritage building is situated. The Council erred by confining GTAs solely to the listed building and curtilage, when its own findings showed the proposed tower development outside the curtilage would materially affect the heritage significance of the listed item. The Heritage Council was required to exercise approval/refusal powers over the entire development to the extent of that nexus. Statutory construction of 'land' in s 57(1)(e) is not limited per se to the curtilage, but is determined case by case...

Court Disposition

Relief granted—the Heritage Council's construction of its statutory role was incorrect and a jurisdictional error established.

Orders

  • First Respondent prohibited from determining the relevant integrated development application (Stamford DA) until provision of a lawful decision by the Second Respondent (Heritage Council) as required by s 4.47 of the EPA Act and cl 70 of the Regulation.
  • Second Respondent ordered to provide a lawful decision to City of Sydney Council (delegate of First Respondent) as to general terms of approval including approval or refusal under s 63 of the Heritage Act.