Boyle, F.C. v Charge, A.N

[1987] FCA 274

Re: FRANCIS CHARLES BOYLE and MARY PATRICIA JOAN BOYLE
And: ANTHONY NORMAN CHARGE and GRAEME NORMAN PEARCE
No. ACT G76 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative Law - judicial review - Approval to carry on profession, trade, occupation or calling on residential land - Whether lessee of adjoining land a person aggrieved - Whether applicant bona fide residing on land - Whether objector entitled to second opportunity to object to application - Whether correct issues addressed - Whether relief should be refused on discretionary grounds.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

City Area Leases Ordinance 1936 (A.C.T.), s.10

HEARING

CANBERRA

#DATE 2:6:1987

Counsel for the applicants: Mr F.J. Purnell

Solicitors for the applicants: Messrs Gallens

Counsel for the first respondent: Mr C.M. Erskine

Solicitor for the first respondent: Australian Government Solicitor

No appearance for the second respondent

ORDER

The decision made by Anthony Norman Charge ("the first respondent") on 15 September 1986 purporting to be a decision under s.10 of the City Area Leases Ordinance 1936 (A.C.T.) approving of Graeme Norman Pearce ("the second respondent") carrying on the profession, trade, occupation or calling of veterinary surgeon on Block 8, Section 11, Division of Griffith, Australian Capital Territory be set aside.

The first respondent pay the applicants' costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Francis Charles Boyle and Mary Patricia Joan Boyle ("the applicants") are the registered proprietors of a lease from the Commonwealth of Australia of certain land known as Block 9, Section 11, Division of Griffith (also known as 31 Monaro Crescent, Griffith) in the Australian Capital Territory. Adjoining that land is Block 8, Section 11, Division of Griffith, also known as 85 Flinders Way, Griffith. Block 8 is situate at the corner of Monaro Crescent and Flinders Way. The lease of that land provides that it may be used for residential purposes only. The lease of Block 9 contains a similar restriction as, indeed, do the leases of all the blocks in Section 11.

1. The applicants seek an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") in respect of a decision made on 15 September 1986 under s.10 of the City Area Leases Ordinance 1936 (A.C.T.) ("the Ordinance") by Anthony Norman Charge ("the first respondent"), a delegate of the Minister of State for Territories. By that decision the first respondent approved of Graeme Norman Pearce ("the second respondent") carrying on the profession, trade, occupation or calling of veterinary surgeon on Block 8 subject to certain conditions relating to the use of the land being observed by the second respondent in carrying on the business.

2. Section 10 of the Ordinance provides:
   
   

"(1) Where in any lease the lessee covenants to use the land included in the lease for residential purposes only, the land shall not be deemed to be used for any other purpose by reason only of any person, bona fide resident on the land, carrying on, with and subject to the approval of the Minister, and in accordance with such conditions relating to the use of the land as the Minister specifies, his profession, trade, occupation or calling on the land.

(2) The Minister may approve in writing of any person bona fide residing on any such land, carrying on his profession, trade, occupation or calling on the land for such period as the Minister specifies, and may in the instrument of approval or any subsequent instrument specify the conditions relating to the use of the land to be observed by that person in so carrying on his profession, trade, occupation or calling:

Provided that the Minister shall not

approve -

(a) of the carrying on of any offensive trade on the land;

(b) of the doing of any act or thing in connexion with the carrying on of any profession, trade, occupation or calling on the land which may become a danger or nuisance to the tenants or occupiers of adjoining lands; or

(c) of the carrying on of any profession, trade, occupation or calling on the land if he is satisfied that it is not in the public interest so to do.

(3) Any instrument approving of the carrying on of any profession, trade, occupation or calling on any such land, or specifying the conditions under which the profession, trade, occupation or calling may be so carried on, shall be forthwith published in the Gazette."

1. On or about 15 May 1986 Mr Boyle received a letter of that date signed by a Mr D.E. Miller for the Director, Residential Lease Management, Department of Territories. The letter informed him that an application had been made by "the resident" of 85 Flinders Way, Griffith, for approval to carry on the profession of veterinary surgeon from that residence. The letter said that it was the normal practice of the Department to seek the adjoining neighbours' views upon receipt of any such application. A copy of the application was attached and comment was invited.

2. The application was in the name of the second respondent and was dated 9 May 1986. It was, in part, in the following terms:
   
   

"I, Graeme Norman Pearce hereby apply for approval to carry on my profession, trade, occupation or calling of Veterinary Surgeon from land leased for residential purposes only at Block 8, Section 11, Division Griffith otherwise known as 85 Flinders Way, Griffith, of which I declare I am a bona fide resident and submit the following details for your consideration."

The details provided included a description of the nature of the proposed use as "Veterinary Clinic", a statement that the business name to be used was "Manuka Veterinary Hospital" and a statement that a "new special purpose extension" of the residence on the land was to be used for the business. Further details were provided as to the number of persons to be engaged in the activity, the number of visitors expected to be generated by the activity, the proposed days and hours of operation, proposals or provisions for on site parking and details of an advertising sign to be used. The application included sketch plans of the proposed extensions to the residence on the land.

1. By letter dated 2 June 1986 the applicants objected to the application on a number of grounds to which it is unnecessary to refer in detail. Suffice it to say that objection was taken on the grounds that the proposed use was incompatible with the residential nature of Section 11, that other locations compatible with the proposed use were available and that the proposed use would exacerbate traffic problems in the area The letter concluded:
   
   

"We trust that the Minister will preserve the long standing residential amenity of the area by refusing the application. Should the Minister be disposed to approve the application, we trust that we will be given the opportunity to make a detailed objection before a decision is made."

Objections were also lodged by the lessees of Blocks 5, 6 and 7, Section 11, Division of Griffith (those blocks being otherwise known as 79, 81 and 83 Flinders Way), by the lessee of Block 11, Section 4, Division of Red Hill (otherwise known as 30 Monaro Crescent) and by the Canberra Grammar School which has premises in the vicinity.

1. On 18 September 1986 the applicants received an unsigned and undated letter from the Department of Territories informing them that the application had been approved. A copy of the instrument of approval dated 15 September 1986 and signed by the first respondent as delegate of the Minister of State for Territories was enclosed. That instrument read as follows:
   
   

"In pursuance of Section 10 of the City Area Leases Ordinance 1936 I ANTHONY NORMAN CHARGE being the officer for the time being occupying an office to the occupant of which the Minister has by instrument in writing under Section 12C of the Seat of Government (Administration) Act 1910 delegated his powers under Section 10 of the said Ordinance HEREBY APPROVE of GRAEME NORMAN PEARCE (hereinafter called 'the Applicant') carrying on the profession trade occupation or calling of VETERINARY SURGEON (hereinafter called 'the business') on Block 8 Section 11 Division of GRIFFITH known as 85 Flinders Way Griffith (hereinafter called 'the land') subject to the following conditions relating to the use of the land being observed by the Applicant in carrying on the business -

1. that this approval will remain valid only while the Applicant continues to be a bona fide resident of the land;

2. that the Applicant will ensure that the conduct of the business does not cause an annoyance a nuisance or danger and is not offensive to any tenants or

occupiers of adjoining lands;

3. that the Applicant will not erect or permit or suffer to be displayed or erected upon the land or any building thereon any advertising sign or hoarding whatever without the consent in writing of the National Capital Development Commission and the Building Controller;

4. that the Applicant will conduct the business strictly in accordance with the application unless otherwise stipulated in this Instrument;

5. that no person other than the Applicant will conduct or in any way carry on the business on the land without the prior approval of the Minister;

6. that the Applicant will ensure that all vehicles are parked within the confines of the land;

7. that the Applicant will not employ more than one assistant for the purpose of conducting or carrying on the business on the land without the prior approval of the Minister;

8. that only that area which is to be built as a special purpose extension to the existing premises be used for the

conduct of the business;

9. that the business will only be conducted on the land between the hours of 8.30 am to 10.30 am and 3.30 pm to 6.30 pm Monday to Friday and 9.00 am to 11.00 am Saturdays;

10. that the Applicant will meet any costs associated with the altering of traffic control devices adjacent to the

property;

11. that the Applicant will conduct the business strictly by appointment and that such appointments will be organised to ensure that not more than two clients are in attendance at any one time;

12. that this approval will terminate on the thirtieth day of SEPTEMBER 1987 or on such earlier date as the Minister

determines in accordance with condition 13;

13. upon any failure to comply with any or all of the foregoing conditions the Minister or his Delegate under the said Ordinance may give written notice

requiring the Applicant to show cause within a period of fourteen days why this approval should not be revoked. At the expiration of this period the

Minister or his Delegate may revoke the approval."

1. On 15 October 1986 the applicants requested the first respondent to furnish a statement under s.13 of the Judicial Review Act in respect of the decision to approve the application. A statement was subsequently received signed by Mr W.D. Tyrrell who described himself as the Director, Residential Lease Management, Department of Territories. It appears from the statement that the duties of that position were being performed by the first respondent on 15 September 1986 when the relevant decision was made.

2. Amongst other matters the statement recorded, under the heading "Findings on Material Questions of Fact", that the second respondent "became a bona fide resident on 28 July 1986". Under the heading "Reasons for decision" it was stated, inter alia, that the first respondent was satisfied that Mr Pearce was a bona fide resident of the land.

3. The other matters referred to under the latter heading were as follows:
   
   

"16. Mr Charge formed the opinion that the carrying on of Mr Pearce's profession would not become a danger or nuisance to the tenants or the occupiers of the adjoining land, and would not be contrary to the public interest.

17. Having considered the proposal in the light of the National Capital Development Commission's land use policy, the comments offered by adjoining residents, the results of on-site investigation by Departmental officers and the recommendation submitted by Residential Lease Management on 9 September 1986, Mr Charge concluded that the proposed use should be approved pursuant to section 10 of the City Area Leases Ordinance 1936."

1. One of the documents which the statement records as having been before the first respondent when he made the decision under review and on which his findings were based was an undated handwritten report of an on-site inspection by officers of the Department of Territories on 26 June 1986. That report states:
   
   

"This property has not as yet been purchased by the applicant Mr G. Pearce but final settlement is expected in 3 weeks according to Mr G. Pearce."

1. The Departmental submission put to the first respondent and upon which he gave his approval to the application (being a document dated 9 September 1986 and signed by Mr D. Ahrens, Residential Lease Management) said, in part:
   
   

"A detailed inspection of the premises was conducted on 26 June

1986. The inspection found that Mr Pearce was in the process of finalising the purchase of the above premises and at present was not a bona fide resident, however, the purchase of the property was to be finalised in mid July and that (sic) the extensions to the house would then be commenced. Mr Pearce on the 28 July 1986 informed the Department that he is now living at the premises and is therefore now a bona fide resident."

1. In an affidavit sworn on 13 March 1987 and filed on behalf of the first respondent, Richard Julian Mason, Assistant Director (Standard Leases), Residential Lease Management Section, Department of Territories deposed to a telephone conversation on 28 July 1986 with a person who identified himself as the second respondent in the course of which the second respondent said words to the effect "I am already living on the premises".

2. The evidence before me establishes that at all material times prior to 19 September 1986 Victor John Bateup was registered as the proprietor as lessee of Block 8, Section 11, Division of Griffith. On that date a memorandum of transfer of the Crown lease of that land to Graeden Pty. Limited, a company incorporated in the State of New South Wales, was executed. That transfer was registered on 8 November 1986. The evidence also establishes that Mr Bateup resided on the premises up to and including 20 September 1986. The second respondent, in an affidavit sworn on 18 March 1987, deposed that, immediately after settlement of the transaction on 19 September 1986, he began extensive building work on the house on the land, that the house was uninhabitable while the building work continued and that he did not move into the house until 28 February 1987. He further stated that he had been living in the house continuously since that date and that he intended to continue to do so.

3. On the proper construction of s.10 of the Ordinance, the power to approve of a person carrying on his profession, trade, occupation or calling on land which is the subject of a lease which contains a covenant by the lessee to use the land for residential purposes only is conditional upon that person bona fide residing on that land. While it is necessary for the decision-maker, being the Minister or his delegate, before exercising the power which the section confers, to determine on the material before him whether the person seeking the approval is bona fide residing on the land, the decision-maker's view is not conclusive of the question. The condition is expressed objectively and unless the applicant is, in truth, bona fide residing on the land, any approval which the decision-maker purports to give will not be effective to authorise the carrying on of the profession, trade, occupation or calling on the land.

4. It is unnecessary in this case to make any examination of the authorities which have considered, in various statutory contexts, whether a person is a resident of, or residing in, a particular place. It is sufficient to refer to the definition in the Shorter Oxford English Dictionary where the meaning is given: "To dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place". That clearly appears to me to be the sense of s.10(2) of the Ordinance when it speaks of the person "residing" on the land in question. The obvious legislative purpose of the provision supports this view.

5. On the evidence before the Court, I am satisfied that neither at the date of the application made by the second respondent nor at the date the first respondent purported to grant approval was the second respondent bona fide residing on the land. His only connection with the land was that he was in the course of purchasing the unexpired term of the lease. It may be accepted that he intended at some time in the future to take up permanent residence on the land but he had not done so at any time prior to February 1987. It follows that, unless it is proper to refuse the applicants relief on discretionary grounds, the approval must be set aside. It may be a matter for debate which is the most appropriate ground set out in s.5 of the Judicial Review Act to assign as the reason for setting aside the decision. It is sufficient, however, to rely on s.5(1)(d) - that the decision was not authorized by the enactment in pursuance of which it was purported to be made. Reliance might also be placed on s.5(1)(e) read with s.5(2)(h) and s.5(3)(b).

6. Before considering the question whether the applicants should, in the exercise of the Court's discretion, be denied relief, mention should be made of other grounds on which the applicants relied in support of the application for an order of review.

7. It was submitted that there had been a denial of natural justice in connection with the making of the decision. This submission had two aspects. First, it was submitted that the letter to the applicants dated 15 May 1986 inviting them to comment upon the application for approval had incorrectly stated the test to be applied by the decision-maker. At the same time as this submission is being considered, it is convenient to have regard to the similar objection taken to the submission dated 9 September 1986 to the first respondent. That, also, was said not to address the correct issues. The essence of the applicants' case on this aspect was that attention was focused on whether the proposed activity would adversely affect the residential amenity of the neighbourhood as though that were the test prescribed by s.10 of the Ordinance and no reference was made to the three factors specifically mentioned in the proviso to s.10(2) the text of which is set out above.

1. I am unable to accept either of these submissions. So far as the letter dated 15 May 1986 is concerned, while it would have been desirable in seeking comments upon the application for approval under s.10 of the Ordinance to have brought to the attention of the recipients of the letter the precise terms of that section, I can only regard the reference to adverse effect upon the residential amenity of the neighbourhood as an omnibus expression encompassing the matters specifically mentioned in the proviso to s.10(2). It may, indeed, encompass other matters. I do not think that, by the use of that phrase, the applicants were misled as to the ambit of the matters on which they might rely by way of objection to the application. Similarly, I do not think it can be said that the decision to grant approval was tainted by the absence from the submission dated 9 September 1986 of specific reference to the matters mentioned in the proviso to s.10(2).

2. The second aspect of the submission that there had been a denial of natural justice was based on a statement contained in the affidavit sworn by Mr Boyle on 28 November 1986 that he was not contacted by the Minister or his Department between the furnishing of his letter of objection dated 2 June 1986 and the receipt by the applicants on 18 September 1986 of the undated letter which was accompanied by a copy of the instrument of approval. Mr Boyle said that he was thereby denied an opportunity of putting detailed objections before the decision-maker.

3. This submission involves the proposition that a person who is given an opportunity to put material before a decision-maker may, in his reply, require the decision-maker to afford him a further opportunity to comment in the event that the decision-maker is minded to make a decision adverse to his interests. In the present case the applicants sought to do just that by including in their letter of objection a request for a further opportunity to make a detailed objection if the Minister was disposed to approve the application.

4. In my opinion, the applicants were given a proper opportunity to lodge objections against the approval of the application. They were not entitled to a further opportunity before the decision was taken. There was no denial of natural justice in failing to give them that further opportunity.

5. For the first respondent it was submitted that, in so far as the applicants sought to rely on the circumstance that at the time of the giving of approval the second respondent was not bona fide residing on the land in question, they were not persons aggrieved within the meaning of that expression in the Judicial Review Act. It was submitted that, in considering whether an applicant for an order of review under the Judicial Review Act is a person aggrieved, it is necessary to analyse the grounds upon which the order of review is sought. It was conceded that the applicants were persons aggrieved in relation to the question whether a veterinary practice might be conducted on the adjoining residential block but it was said that they did not answer that description in relation to the question whether the second respondent had the status of a bona fide resident on the land.

6. I reject this submission. I am in no doubt that the applicants are persons aggrieved in relation to the decision approving of the second respondent carrying on his profession, trade, occupation or calling on the land. Being persons aggrieved by that decision, they may seek an order of review on any of the grounds set out in s.5 of the Judicial Review Act. There is, in my opinion, no other relevant limitation.

7. I turn now to the question whether relief should be refused on discretionary grounds. It was submitted on behalf of the first respondent that, if the only ground on which the applicants were to succeed was the ground relating to the second respondent not been a person bona fide residing on the land at the time the decision under review was made, to require the matter to be reconsidered would be an exercise in futility. This was said to follow from the circumstance that the second respondent now answers the description of a person bona fide residing on the land and the Court should assume it to be highly likely that the decision-maker would, on reconsideration, affirm the decision made on 15 September 1986. Attention was also directed to the circumstance that the approval granted on 15 September 1986 will expire on 30 September 1987 when the matter will need to be reconsidered if the second respondent wishes to continue to operate his business from the land in question.

8. While I acknowledge that there is some force in this argument, I do not propose to accede to it for a number of reasons. First, the decision was made more than eight months ago and the circumstances relevant to the questions which must be addressed under s.10 of the Ordinance may well have changed. Secondly, the adjoining lessees may have additional material which they may wish to bring forward for the decision-maker's consideration. Thirdly, it would be inappropriate for the matter to be reconsidered by the first respondent or by any person who was concerned in the making of the decision now under review. Fourthly, it may be, and I put the matter no higher than that, that the considerations relevant to the renewal of an approval already validly given may differ in some respects from those that are relevant when the granting of an initial approval is being considered. Finally, and most importantly, as the condition precedent to the granting of the approval did not, in fact, exist with the consequence that the approval was ineffective in law, for the Court to decline to grant relief would not have the effect of giving to the instrument of approval any greater efficacy than it would otherwise have. If, therefore, the second respondent is to carry on his business from Block 8, it will be necessary for him to seek a valid approval under s.10 of the Ordinance.

9. For the above reasons, the decision made by the first respondent on 15 September 1986 is set aside. The question then arises whether the application should be remitted for reconsideration. However, as the application was based on a false declaration as to the second respondent's status and that status is crucial, the second respondent should be required, if he wishes to carry on his business on the land, to lodge a fresh application stating the facts on which he now relies as entitling him to the grant of approval. If he pursues his application, the matter should be considered by the Minister or by a person, being a delegate of the Minister, who was not concerned in the decision-making process which led to the signing of the instrument of approval dated 15 September 1986. The first respondent must pay the applicants' costs.