Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd

1. [1]

   MACFARLAN JA: This is an appeal under s 58 of the Land and Environment Court Act 1979 (NSW) from a judgment of Sheahan J of 16 August 2019 dismissing the appellant’s application for judicial review of a Development Control Order (“the DCO”) ([2019] NSWLEC 117). The DCO was issued on 22 June 2018 by the second respondent (“the Council”) to the first respondent (“the Owner”) which is the registered proprietor of heritage listed premises at 122-122B Pitt Street Sydney.

2. [2]

   The appellant (“Universal”) has possession of the premises under a registered lease. It operates the “1821 Hotel” in the building on the site. The date which forms part of the name refers to the year in which the Greek War of Independence (or Revolution) commenced. The hotel has a Greek theme and on a ground floor wall has an 8 metre by 5 metre depiction of the Greek National flag. The depiction was created by removing part of the cement render on the wall, leaving parts of the differently coloured brickwork underneath exposed. This occurred when the premises were renovated in 2016.

3. [3]

   The DCO required removal of the flag by reinstatement of the cement render on the wall. The DCO alleged that the carving of the flag occurred without planning approval, contrary to s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”), and without approval under s 57(1) of the Heritage Act 1977 (NSW). The Council did not give Universal, but did give the Owner, an opportunity to make representations to the Council regarding the proposed DCO before it was made.

4. [4]

   On appeal, the appellant contended:

   1. (1)

      That it had been denied procedural fairness in relation to the making of the DCO principally because this was a breach of a common law obligation the Council owed to Universal.

   2. (2)

      The carving of the Greek flag into the wall’s render was not a separate item of development that required development approval or Heritage Council approval but, it was in any event approved in both respects as part of the 2016 renovation works approval.

   3. (3)

      The DCO is void because notice that it was proposed to be made was not given to the principal certifier of the renovation works as required by clause 9 of Schedule 5 of the EPA Act.

5. [5]

   For the reasons given below, I consider that these contentions should be rejected and that the appeal should be dismissed with costs.

The regulatory framework

1. [6]

   The EPA Act sets out the relevant laws relating to development and DCOs.

2. [7]

   Section 4.2 of the EPA Act, as in force when the DCO was made, relevantly provided:

3. [8]

   Section 1.5 relevantly defined “development” as follows:

4. [9]

   “Development consent” was defined by s 1.4 to mean consent under Part 4 of the Act to carry out development. Section 1.4 defined “carrying out of a work” to include, in part, “the removal of, the making of alterations to, or the enlargement or extension of, a work …”. Section 4.5, which was included in Part 4, specified, so far as is relevant to the present case, that local councils were consent authorities.

5. [10]

   Sections 9.34 and 9.35 empowered local councils to make general development control orders (“DCOs”) in accordance with the table to Part 1 of Schedule 5 to the Act. One type of DCO that could be made was identified in item 10 of Part 1 of Schedule 5 as follows:

6. [11]

   Part 4 of Schedule 5 contained the following provisions of present relevance:

7. [12]

   Part 5 (headed “Process for giving orders”) of Schedule 5 contained the following further relevant provisions:

8. [13]

   Part 6 (headed “Notices to be given”) of Schedule 5 included the following:

9. [14]

   Part 7 (headed “Representations concerning proposed orders”) of Schedule 5 included the following:

10. [15]

    Part 11 (headed “Effect of orders and compliance with orders”) of Schedule 5 included the following presently relevant provisions:

11. [16]

    Section 57(1) of the Heritage Act, also referred to in the DCO (see [3] above) was relevantly in the following terms:

12. [17]

    The above provisions comprised the statutory framework pursuant to which the DCO was issued.

Whether denial of procedural fairness

1. [18]

   The DCO was directed to the Owner, as was permitted by Part 1 of Schedule 5 of the EPA Act (see [10] above). As required by clause 8 of Part 6, the Council gave to the Owner prior notice of its proposal to make the DCO and the opportunity to make representations in relation to it. It did not give notice of the proposed DCO to Universal, on the basis that Universal was not a person to whom the DCO was intended to be directed. The Council could, if it had so chosen, have directed the DCO to Universal because, as the Council accepted in this Court, Universal fell within the description of persons to whom a DCO could be directed under item 10 of Part 1 of Schedule 5. The Council however denied that it had any obligation to direct the DCO to Universal and Universal did not argue the contrary. Nevertheless, Universal submitted that, as a matter of procedural fairness, the Council should have given it the opportunity to make representations to the Council because Universal, as the occupier of the premises, would inevitably be affected by the making of the DCO. Universal’s principal submission was that a right to procedural fairness arose under the general law.

2. [19]

   The primary judge’s reasons for rejecting this argument were as follows:

3. [20]

   Universal’s challenge to the these conclusions can be adequately addressed by asking whether any right that Universal might have had under the general law to be given prior notice of the Council’s proposal to make the DCO, and the opportunity to make representations in response, was excluded by the statutory provisions to which I have referred. That question should be answered in the affirmative. I note that the Council did not argue that even if the exclusionary effect of the Act was put aside, Universal did not have a common law right to procedural fairness.

4. [21]

   Certainly, a requirement under the general law to afford procedural fairness can only be excluded “by plain words of necessary intendment”, rather than “indirect references, uncertain inferences or equivocal considerations” (Annetts v McCann (1990) 170 CLR 596 at 598; [1990] HCA 57; see also Minister for Immigration v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [75]). The decisions in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 and Seiffert v Prisoners Review Board [2011] WASCA 148 are instances of courts finding that express statutory exclusionary provisions could operate to exclude or limit requirements for procedural fairness.

5. [22]

   The statutory scheme contained in Schedule 5 to the EPA Act in my view contained sufficiently “plain words” to exclude any right that Universal might otherwise have had to be afforded procedural fairness in relation to the issue of the DCO.

6. [23]

   Importantly, clause 7 in Schedule 5 provided that an enforcement authority such as the Council “is taken to have observed the rules of procedural fairness” if it complies with certain provisions of the Schedule. These provisions included the requirement under clauses 8 and 14 to give notice of a proposed order to the person to whom the order was to be directed and to consider any representations made by that person. The legislation thus identified to whom notice of a proposed DCO was to be given and what had to occur in consequence. This specification was in my view exhaustive and left no room for Universal’s argument that Universal was someone else to whom the Council was required to give notice of the proposed DCO.

7. [24]

   Subject to one argument, Universal did not contend that the Council had not complied with the provisions referred to in clause 7. The argument was that Universal should have been given notice of the proposed DCO as it was, under clause 8 of Schedule 5, a person “to whom the proposed order [was] directed”, in the sense that the order was effectively directed at Universal because it was the occupier and therefore the person likely to be most immediately affected by the DCO. However, on a plain reading of clause 8, it is clear that “the person to whom the proposed order is directed” means the person to whom the DCO is intended to be addressed. The relevant DCO was clearly “directed” to the Owner, and not to Universal, as it was addressed to the Owner and referred to the Owner as “You”. It follows that notice that the Council proposed to issue the DCO was only required to be given to the Owner.

Whether the carving of the Greek flag was an unauthorised building work

1. [25]

   Universal first argued that the carving into the cement render of the depiction of the Greek flag was not “development” within the meaning of that word in s 4.2 of the EPA Act. As noted, “development” was defined in s 1.5 to include “the carrying out of a work” (see [8] above). Universal did not suggest that if the carving was a “development”, s 4.2(1), which required consent to be obtained, was nevertheless inapplicable according to its terms because the relevant environmental planning scheme, being the Sydney Local Environment Plan 2012, did not require development consent to be obtained.

2. [26]

   Although it must be accepted that in some instances work done on a property may be de minimus, it is in my view clear that, due to its size and prominence, the subject carving of the Greek flag constituted “the carrying out of a work” requiring development consent. The decisions in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305-8 and Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (2018) 98 NSWLR 439; [2018] NSWCA 240 at [93]-[97] on which Universal relied to contend otherwise did not assist Universal, at least for the reason that they were concerned with the terms “building”, “erection” and “structure”, rather than “development” and “work” which are in issue in the present case. As well, I do not consider that the suggestion in Mulcahy that a purposive approach should be taken to construction of the legislation assists Universal as I can discern no legislative purpose to take work such as that which occurred in the present case outside the purview of the legislation.

3. [27]

   Universal further contended that, if development consent was required, it was obtained because the carving was part of the 2016 renovations to which development consent was given. This contention is however contradicted by the contents of the plans for the renovation work that the Council approved in 2016.

4. [28]

   The Demolition Plans (appearing at p 233 of the Appeal papers) contain a direction in relation to the relevant wall to “make good … wall” (although the word “good” has been accidentally omitted from the ground floor plan, but not the mezzanine floor plan). The General Arrangement Plans (ibid), showing the post-renovation position, refer to “ARTWORK” on the relevant wall, while an Elevation Plan (at p 234) refers to “DECORATIVE TEXTILE WALL TREATMENT” in respect of the relevant wall. These statements do not extend to a depiction of the Greek flag carved into the cement render. In my view both expressions refer to a supplement to the wall, not to interference with the wall surface. Thus it cannot therefore be said that the carving received development consent. It was therefore “unauthorised” as asserted in the DCO.

5. [29]

   As noted above, the DCO also alleged that the carving of the Greek flag did not have the approval that was required under s 57(1) of the Heritage Act 1977 (see [16] above).

6. [30]

   In 1988 a Permanent Conservation Order was made in respect of the premises and they were listed as a State Heritage Item in 1999. The description in the State Heritage Register of the premises’ significance includes the statement that “The building is aesthetically significant for its well resolved detailing to both its interior and exterior … ” (emphasis added). The premises are also listed as a Heritage Item under the Sydney Local Environment Plan 2012, with the listing expressly stating that “interiors” are included. Although Universal argued the contrary, it is in my view clear that in these circumstances substantial work on the interior wall of the premises, such as was constituted by the carving of the subject flag, amounted to the alteration of the building, giving rise to the need for the consent of the appropriate authority under s 57(1) of the Heritage Act (see sub-s (f) of s 57(1)).

7. [31]

   By letter of 11 September 2015 the Heritage Council gave consent to renovations that were effected to the premises in 2016. The consent however related to the work described in identified architectural drawings whose contents were to the same effect as those approved by the Council and referred to in [28] above. Although the respective plans appear to be different revisions of the same plans, relevantly they contain the same information and thus, as described in [28] above, do not authorise the subject carving occurring. Accordingly, heritage approval was required, and not given, and the carving was “unauthorised” for this reason also.

Whether notice to the principal certifier required

1. [32]

   For the first time on appeal, Universal contended that the DCO was void because the Council did not give to Steve Watson & Partners notice of its intention to issue the DCO. That firm was appointed the principal certifier in respect of the development approval given to the 2016 renovation works. It issued a final occupation certificate on 8 December 2016, specifically excluding from the ambit of the certificate, inter alia, “Removal of the render on the Southern wall”. This was a reference to the carving of the Greek flag which I have found above was not authorised to be done as part of the renovations or otherwise. Steve Watson & Partners was not therefore in my view a “principal certifier” to whom the Council was required to give notice under clause 9(2) of Schedule 5 of the EPA Act. The firm’s appointment to certify the works did not extend to unauthorised works, the firm specifically ensured that its 2016 certificate did not purport to cover them and by 2018, when the DCO was proposed, the firm had long since ceased to have a role in relation to even the authorised 2016 works. In these circumstances, certainly in 2018, the firm could not properly be described as “the principal certifier” for the “development” in respect of which the Council proposed to make the DCO.

2. [33]

   As Universal’s argument that Steve Watson & Partners should have been given notice of the proposed DCO fails for the above reasons, it is unnecessary to consider whether Universal should be given leave to raise it for the first time on appeal, and to adduce evidence to enable it to be put. I note that the Council contended that it would be prejudiced if those steps were allowed to be taken. It is also unnecessary to consider whether, as Universal contended, a failure to give a required notice to Steve Watson & Partners would have invalidated the DCO so far as the Owner was concerned (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]-[92]).

Orders

1. [34]

   For the reasons given above, each of Universal’s contentions should be rejected. Accordingly I propose that the appeal be dismissed with costs.

2. [35]

   MEAGHER JA: I agree, for the reasons given by Macfarlan JA, that this appeal should be dismissed with costs.

3. [36]

   GLEESON JA: This appeal should be dismissed for the reasons given by Macfarlan JA.

4. [37]

   I would add one brief comment. Insofar as the appellant (Universal) sought to raise a new point on appeal, that the development consent order (DCO) was void because the second respondent (Council) did not give to Steve Watson & Partners notice of its intention to issue the DCO, in accordance with a well-established principle, Universal is not entitled to advance a fresh argument on appeal if that argument “could possibly have been met by the calling of evidence below”: Water Board v Moustakas (1988) 180 CLR 491 at 497; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438. In my view, the present is such a case.