Posted on January 2, 2019 by Katie Mortimer and Megan Hawley
The Meaning of ‘Land’
Two recent Land and Environment Court decisions have considered what constituted the land on which a heritage item is situated, and what constituted the land on which an extractive industry was being carried out. The cases remind us that the Court will not consider land by reference to one Torrens title lot, but will have regard to the scope and purpose of statutory provisions.
Land on which a heritage item is situated
In Mulpha Australia Limited v Central Sydney Planning Committee  NSWLEC 179 (Mulpha) the Court considered an integrated development application seeking consent to conserve the Health Department Building (Building), and construct a 16 storey residential apartment building (DA) on another part of the torrens title lot on which the Building was located. The Building (and its curtilage) is listed on the State Heritage Register.
The Heritage Council provided general terms of approval (GTAs) in respect of the conservation of the Building. It provided some comments on the remainder of the DA. Mulpha Australia Limited (Mulpha) commenced proceedings contending the consent authority was prohibited from determining the DA, in the absence of the Heritage Council indicating whether it would provide GTAs in relation to the entire DA (including the apartment building component).
Meaning of ‘Land’ in section 57(1)(e) of the Heritage Act 1977
The GTAs had been provided under section 57(1)(e) of the Heritage Act 1977, which provides that a person must obtain approval from the Heritage Council before carrying out any development ‘in relation to the land’ on which a heritage item is situated.
The Respondent argued that the ‘land‘ referred to in s57(1)(e) was limited to the footprint of the Building and its curtilage (both of which formed part of the heritage item), being the ‘factual extent of the use and occupation’ of land by the building).
Mulpha argued that the land should mean the entire torrens title lot on which the Building is located.
The Court found that the meaning of land will depend on the circumstances of the case. In the context of s57(1)(e) of the Heritage Act, there would be unsatisfactory implications if the word meant “lot”, and the word should not be considered to mean lot. Also, however, it should be considered to mean more than just the footprint of the heritage item and its listed curtilage. It needed to extend beyond the scope of the heritage item itself.
In order to determine the extent of the land relevant under s57(1)(e) in any particular case, the approach is to identify the land which has the nexus to the heritage item, having regard to the lot identification of the land, the ambit of the proposed development, the scope of the listing, or a combination of some or all of these options. Molesworth J stated that such a case by case determination ‘is not a process foreign to heritage, planning or environmental laws‘.
Land on which extractive industry is carried out
In Boral Resources (NSW) Pty Ltd v Camden Council  NSWLEC 1623 (Boral), Camden Council refused development consent to an application to co-locate a mobile concrete batching plant on Lot 100 DP 1203966 (DA).
The Applicant contended the DA was permissible under clause 7(4) of the State Environment Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP), which provides if an extractive industry is being carried out with development consent ‘on any land‘ then concrete works of certain types may also be carried out with development consent ‘on that land’.
Council agreed the proposed development would be on the same lot as the extractive industry, but argued it would not occur on the same land, or within the curtilage of the extractive industry, but on a separate part of the lot.
Meaning of ‘Land’ in clause 7(4) of the Mining SEPP
Having regard to the wording of cl7(4), the Court held that the ‘land‘ referred to must be the land on which the development is being carried out. The clause does not refer to a development area or a curtilage. The development consent for the extractive industry in this case permitted the extractive industry to occur on the entirety of Lot 100.
On this basis, the relevant land was the entirety of Lot 100. The Court stated that there was no basis to dissect the various activities being carried out on Lot 100 in pursuit of the extractive industry and treat them separately, such that different parts of the land were being used for different purposes.
The above cases demonstrate that where a provision of legislation or a statutory instrument requires consideration of the ‘land’ on which something is occurring or is located, the particular wording of the provision must be carefully considered, as well as the statutory context.
It cannot be assumed that the relevant land is defined by reference to a torrens title lot, although the relevant provision or the circumstances of the case may mean that it is.
The Boral case includes a discussion of cases on existing uses, where the identification of the land on which the existing use was carried out is relevant. Those cases require identification of land which from a practical point of view should be considered as one piece or one unit of land.
Read the cases in full here: Mulpha Australia Limited v Central Sydney Planning Committee  NSWLEC 179 & Boral Resources (NSW) Pty Ltd v Camden Council  NSWLEC 1623
Should you wish to discuss the issues raised in this post, please contact Megan Hawley, Partner on 8235 9703 or by email, at firstname.lastname@example.org.