Anderson & Anor v Stonnington City Council

[2021] HCATrans 65

[2021] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M102 of 2020

B e t w e e n -

JOHN RAYMOND ANDERSON

First Applicant

DEMITRA ANDERSON

Second Applicant

and

STONNINGTON CITY COUNCIL

Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 12 APRIL 2021, AT 11.11 AM

Copyright in the High Court of Australia

MR P.J. HANKS, QC:   Your Honours, I appear with MR D.M. ROBINSON, for the applicants.  (instructed by Best Hooper Lawyers)

MR C.J. HORAN, QC:   If the Court pleases, I appear with MS S.J. PORRITT and MR A.F. SOLOMON-BRIDGE, for the respondent.  (instructed by Maddocks)

KIEFEL CJ:   Yes, Mr Hanks.

MR HANKS:   Thank you, your Honour.  The controversy that brings us here today, your Honour, is directly connected, obviously, to the presumption that rights that have accrued are not disturbed by amending legislation in the absence of an express contrary intention.  Generally, where that proposition is invoked, the point of contention will be whether a right has actually accrued, or vested, but the question in the present application is one that precedes that question, namely, what is it that counts as a right for the purposes of that proposition?

Now, as we pointed out in our written application, there are authorities in this Court which propose a broad practical inclusive approach to that question, and we have referred to what Justice Windeyer said in Mathieson v Burton, what was said by Justices Mason, Murphy and Wilson in Carr v Finance Corporation, and I might just pause there briefly to note that their Honours said that where they were considering the common law presumption to one articulated in Maxwell v Murphy, which is plainly the analogue of the statutory provision with which we are dealing here, section 28(2)(e) of the Interpretation of Legislation Act.  Their Honours said, rights that have accrued, the recognition of those rights does not call for a narrow conception in order to avoid the erosion of the essential justice of the rule.

GORDON J:   That is the approach adopted by the Court of Appeal, was it, Mr Hanks.  They adopted that approach?

MR HANKS:   We think not, your Honour.  We say they did not.  The Court of Appeal endorsed the primary judge, and in turn we track it back to the Tribunal.  The same approach is taken in the Tribunal.  Namely, that there is a fundamental distinction between what is described as a right or privilege on the one hand, and a gap in the field, or an ability – in this case on the part of the applicants – to use and develop their property under the planning scheme, as it stood at the time when they began to develop the property.

Now, that is the approach, we say, which is based on, in the present case, an analysis by the Court of Appeal, as indeed by the primary judge, and the Tribunal of isolated provisions in the instrument in question.  The approach we say that was adopted at every level was out of line with the principles articulated in those authorities. 

Now, for example, your Honour, if we go to page 82 of the application book ‑ I am taking your Honours to the reasons of the Court of Appeal ‑ and paragraph 43, what we see here in 43 and 44, if you turn the page, is the Court of Appeal articulating its reasoning by reference to the reasoning of the primary judge, directly endorsing the approach of the primary judge, and in doing that all events of the Court of Appeal and the primary judge, Justice Garde, have adopted a five‑line passage from the case of Robertson v City of Nunawading, with which your Honours will be familiar, the passage which distinguished between a right, a privilege on the one hand, created by a piece of legislation and what the Full Court in the Robertson Case referred to as a gap in the field. 

Now, that – if we turn, for example, back to at page 45, back to the primary judge – and to paragraph 66, your Honours will see that distinction adopted by the primary judge on page 45 of the application book.  Now, in our submission, that sits very poorly with the propositions to which we refer in those High Court authorities Mathieson, Carr and Chang and it is not consistent with the protective function of section 28(2)(e).  That is stressed, for example, by Justices Mason, Murphy and Wilson in the case of Carr v Finance Corporation. 

It results, in our submission, in somewhat arbitrary and unprincipled distinctions and we have attempted to elaborate on those in a critique in paragraphs 24 to 26 of our written application. 

KIEFEL CJ:   Mr Hanks, at what point do you say the right that you are referring to arose?

MR HANKS:   At the point when our clients took advantage of the interest that was extended to them under the planning scheme, that is, when they commenced the construction.  Now, could I take your Honours to the terms of the legislation and that is ‑ critically we need to construct any analysis here around the terms of the Planning and Environment Act and the relevant planning scheme and those are found on – starting at page 120 in the application book.

Now, I will pass over the general provisions in the Planning and Environment Act other than to note that it is under that Act that the planning scheme is made by the City of Stonnington.  Now, if we look at the bottom of page 120 in the application book, we find clause 61.05 in the planning scheme, the plan:

may be used or developed only in accordance with this scheme.

Of course, we are here looking at the pre‑amendment version.  And then turn over the page, about point 2 on the following page, page 121:

If this scheme allows a particular use of land, it may be developed for that use provided all requirements of the scheme are met.

Now, I want to pause there, if I might, your Honours.  It was suggested below that that was an ambulatory provision and that it somehow incorporated any requirements that might be changed from time to time.

KIEFEL CJ:   I think it was also referred to as an explanatory provision rather than a substantive provision. 

MR HANKS:   Well, your Honours, it is the foundation, in our submission, for the provisions that follow. 

GORDON J:   So, if you take the Court of Appeal’s analysis in relation to the instant paragraphs 82 through to 87, they look at – there is paragraph 80 through to 87 ‑ they deal with clause 61.05 and recognise consistent with Robertson that there is really nothing more than an opportunity your clients had consistent with 61.05 to take advantage of the ability to use and develop the land under the planning scheme as it stood.  What is wrong with that?

MR HANKS:   It is shallow, your Honour, if I might – that analysis ignores the language that is used in the planning scheme and, in particular, it ignores 32.08‑1.  Your Honours will see that commencing at the bottom of page 121 and onto 122.  It also ignores the associated clause 32.08‑3, so it is planning that the planning scheme at the relevant time, at the time that our clients commence work on the dwelling in the nature of extension and renovation, the planning scheme provided that a permit was not required for that.

Now, to describe that as a mere gap, in our submission, is a shallow description because it goes beyond that.  It says to people in the position of the applicants, you can undertake work, you do not need a permit.  That is what it says.  And then if we go down to 32.08‑3 the point is repeated:

No permit is required to:

·Construct or carry out works normal to a dwelling.

In our submission, there is the right that is conferred by a planning scheme.  It is a right that is invoked by the applicants when they commence construction and as we can see – I do not need to track this back too far but we can see from page 72 of the application book, paragraph 3 of the Court of Appeal, that that commenced in 2014.

Now, in our submission, the way the issue should have been analysed at every level was to note that the applicants were directly permitted to develop their land for the purpose of a dwelling. 

KIEFEL CJ:   No, it meant, at that point, they did not have to get a permit.

MR HANKS:   That is right, they did not.  Now, in our submission, that is properly characterised – adopting the approach urged in the authorities to which we have referred in our written application – that is properly characterised as a right, or an entitlement, or an interest.  

KIEFEL CJ:   Could they have assigned that right by contract, Mr Hanks?

MR HANKS:   No, your Honour, they could not.  It was a right personal to them as the owners of the land who did the thing and took the action that invoked the right.  This is not a right in abstract.  It is a concrete right that has been invoked by commencing the construction. 

KIEFEL CJ:   But, if it is a right of the nature that you are talking about, it would run with the land, would it not?

MR HANKS:   It is personal, your Honour, so we do not – I am not using that in the flippant sense at all – but it is not, we import, conceptual analyses from other areas of the law, in this context.  That, indeed, is the very point that was made in the High Court authorities to which we have referred – Mathieson, Justice Windeyer, Carr v Finance Corporation, and Chang.  That is the very point that is made.  We do not go into the form of analysis from other areas of the law.  We just ask, is this an interest of a kind that is designed to be protected against change, remembering that the protection – and this is, possibly, an important point – the protection that is offered by the presumption is only a presumptive protection.

What it requires in order to be displaced is language in the amending legislation which says, this takes effect notwithstanding any existing interest.  That is not a very significant burden to place on a local government authority when it is amending its planning scheme but it does contribute to the objective of ensuring that rights are not negligently, carelessly, displaced.

Now, in our submission, your Honours, noting that the planning scheme, as an instrument of the Planning and Environment Act, was serving the purpose of regulating the use and development of land as part of a comprehensive scheme so that when one part of the plan is being said, no

permit is required, it was doing more than leaving a gap.  It was setting the terms of the regulation for the use of land.

That was a sufficient entitlement, in our submission, when it was invoked by the applicants in 2014, to bring section 28(2)(e) into operation.  In the absence of an express appearance – and here I am dealing with the language in the Interpretation of Legislation Act – in the absence of an expressed appearance or a contrary intention, the amendment to the planning scheme that came in on 21 May 2015 – which your Honours will see at page 123 of the application book – did not affect the applicant’s entitlement to proceed with carrying out the works that they had commenced.  Your Honours, those are our oral submissions.

KIEFEL CJ:   Thank you, Mr Hanks.  We need not trouble you, Mr Horan. 

In our view, there is no reason to doubt the correctness of the decision of the Court of Appeal in this matter.  Special leave is refused with costs.

MR HANKS:   If your Honours please.

KIEFEL CJ:   The Court will now adjourn to reconstitute.

AT 11.30 AM THE MATTER WAS CONCLUDED