Bathurst City Council v Pwc Properties

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S141 of 1997

B e t w e e n -

BATHURST CITY COUNCIL

Appellant

and

PWC PROPERTIES PTY LIMITED

Respondent

GAUDRON J
McHUGH J
GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 21 APRIL 1998, AT 10.18 AM

Copyright in the High Court of Australia

MR W.R. DAVISON, SC:   May it please the Court, I appear with my learned friend, MR D.R. PARRY, for the appellant.  (instructed by McIntosh, McPhillamy & Co)

MR B.W. WALKER, SC:   If it please the Court, I appear with my learned friends, MR B.J. PRESTON and MR A.S. BELL, for the respondent.  (instructed by Clayton Utz)  (Mr Preston did not appear in Court.)

GAUDRON J:   Yes, Mr Davison.

MR DAVISON:   Your Honours, on 21 December 1979 the appellant granted development approval for the use of the now respondent’s land as a shopping centre subject to certain conditions.  That approval is to be found in the appeal papers at page 40.

GUMMOW J:   Were there any constraints on the nature of these conditions?  That is to say, any constraints on the power to impose these conditions?

MR DAVISON:   There were common law constraints, your Honour.  There were no constraints expressed in the instrument.

GUMMOW J:   No, but spelt out of the statute one way or another.

MR DAVISON:   The statute empowered the making of an ordinance which was relevantly the Bathurst Planning Scheme Ordinance, the statute then being the Local Government Act 1919. The statute made no specification as to empowerment for imposing conditions. The ordinance which we are seeking to have faxed to us as we speak - my memory of it was that there was a general power to impose conditions which was not circumscribed in any way specified in the instrument. The circumscription arises from the authorities which conveniently are identified in the respondent’s written submissions.

GUMMOW J:   So you say there could be and was a condition imposed which required the transfer to your client in fee simple of land which could later be turned by your client to commercial advantage and use by sale of the property?

MR DAVISON:   I do not quite put it that way, your Honour.

GUMMOW J:   You might not put it that way but was there a constraint that prevented that from being so?

MR DAVISON:   We say no, your Honour.

HAYNE J:   But was that the effect of the condition that was imposed here?  The condition imposed here was that a credit would be given if - - -

MR DAVISON:   That is so, your Honour.  Could I take your Honours to the condition.  The condition is found at the foot of page 40 in the appeal papers.

GUMMOW J:   But the credit having been given, do you say that was the end of it and you could do what you liked with the land thereafter?

MR DAVISON:   There was no constraint which…