Bucknell & Anor v Townsville City Council & Anor

[2021] HCATrans 164

[2021] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B17 of 2021

B e t w e e n -

PETER ADRIAN WENTWORTH BUCKNELL

First Applicant

FRANCES O’CALLAGHAN

Second Applicant

and

TOWNSVILLE CITY COUNCIL

First Respondent

ACE AVIATION & ENGINEERING PTY LTD (ACN 113 025 264)

Second Respondent

Application for special leave to appeal

KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 15 OCTOBER 2021, AT 9.30 AM

Copyright in the High Court of Australia

____________________

KEANE J:   Good morning.  In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR D.R. GORE, QC appears with MR E.J. MORZONE, QC for the applicants.  (instructed by Wilson Ryan Grose)

MR R.S. LITSTER, QC appears with MR K.W. WYLIE for the first respondent.  (instructed by Keir Steele Waldon Lawyers)

MR G.J. GIBSON, QC appears with MR J.G. LYONS for the second respondent.  (instructed by Connolly Suthers Lawyers).

KEANE J:   Yes, Mr Gore.

MR GORE:   Good morning, your Honours.  Your Honours, we respectfully submit that there are seven areas in the reasons of Justice Philippides which contain errors, and which explain why the intervention of this Court is warranted.       If I could ask your Honours to go to page 102 of the application book, their Honours’ consideration of the issue in question commenced on that page.  I wanted to take your Honours through the key paragraphs which are on pages 103 and 104, beginning with paragraph [51].

In that paragraph, we submit that her Honour erroneously took the view that it was condition 1 of the 1991 Approval which was the source of the authority for the “use”, and I can foreshadow that that was an aspect of her Honour’s reasons which continued through succeeding paragraphs, which we will be coming to in a moment, but I will foreshadow that they are paragraphs [53], [57] and [58].  For example, in paragraph [53], her Honour used the expression:

the “use” . . . was identified in unqualified terms in condition 1 ‑

Your Honours are aware that, if you go back to page 91 of the application book, the terms of the consent application which are material to the argument are in paragraph [9], and the terms of the consent are in paragraph [11].  Then the conditions are in paragraph [12].  Condition 1, to which I have referred, really was just a potential revocation condition which required substantial commencement within a period of two years and was not the source of the authority.  The source of the authority was the consent itself, as referred to in paragraph [11].

Then in paragraph [52], back on page 103, her Honour wrongly took the view that the words of the consent, and I quote from her Honour’s reasons, at line 22:

did not operate to circumscribe, by means of a condition, the nature of the use approved, nor did they seek to do so in any event.

We say two things about that.  The first is that a condition is not the only means by which the extent of the use may be circumscribed.  The description of the subject matter of an approval can itself involve a limitation and, to give three simple examples, multiple dwelling might be the use but it would be orthodox to speak of an approval for the number of units ‑ so multiple dwelling for 20 units - or spray painting for boats, as opposed to light industry generally or spray painting generally, spray painting for boats or a butcher’s shop, which is the example from the decision of this Court in Shire of Perth v O’Keefe.

EDELMAN J:   Mr Gore, what is the public importance in any alleged misconstruction of a condition in a bespoke development approval?

MR GORE:   The public importance is that it is difficult to understand the reasons of the majority in this case and it will only serve to confuse the public and practitioners if this Court does not intervene to explain the proper expression of the principle and its application.

There seems to be common ground about how the principle should be succinctly expressed, but there is no common ground about how it is being applied in the circumstances of this case.  I suppose one way of putting it, your Honour, is to put the special leave question as, “In what circumstances do words which are attached to the approval itself not limit the approval?”, because this judgment says that the words attached to the consent do not limit it and this Court should assist in explaining whether that is right or wrong.

GORDON J:   Mr Gore, my problem with that is that when you look at your seven proposed grounds of appeal, they are all very much – as Justice Edelman put to you – construction of conditions of bespoke, even minor, quite narrow aspects of the approval.  The second thing is that I had understood that – and in effect the decisions reflect this – the applicable principles are not in dispute. 

MR GORE:   That appears to be the case, your Honour, but as I have already submitted, the difficulty is that it is difficult to understand how they have been applied by the majority in this case.  They have been applied correctly, in our submission, by Justice McMurdo, but not correctly by the majority. 

GORDON J:   Can I go to your special leave question, because your special leave question proposes in what circumstances is it permissible and appropriate.  How could a court identify what circumstances?

MR GORE:   Perhaps the special leave question could do with some rephrasing, and I attempted that in answer…..a moment ago.  Perhaps it should read:  “In what circumstances do words attached to a consent limit or not limit the scope of the consent?”  That seems to be an important question that arises out of the circumstances of this case. 

KEANE J:   But is not the answer to that question, Mr Gore, that will depend upon the terms of the particular approval?

MR GORE:   Your Honour, attractive as that sounds, why was that not applied in this case, we rhetorically ask?  There are key words which have been attached to the expression of the consent which refer to the particular plan, and her Honour has not accepted that there is any limitation as a result of the plan, even though the plan is part of the expression of the approval. 

If I could return to those seven areas, I have finished with the second.  The third area involves her Honour’s treatment of condition 3, and this is at page 103, in paragraph [54].  Her Honour said that:

Condition 3 is also to be construed in the context of condition 2 –

but her Honour recognised that:

condition 2 was expressed in general terms –

and condition 3 was really much more specific, and it is our submission that the more specific condition 3 should prevail over the generally expressed condition 2, which was, after all, only a mechanical condition requiring plans to be submitted.  The fourth area relates to paragraph – I am sorry, that was the –

GORDON J:   May I just ask about condition 3?  What are we to make of things which are contained within it, which says that the “proposed Private Airstrip” - which I understand is a term which is to be found not just in the approval but has a greater meaning elsewhere:

“substantially comply” with the proposal as detailed ‑ ‑ ‑

MR GORE:   Well, that is a limitation, we submit.  That takes the reader to the details set out at page 91 of the application book in paragraph [9], with one important example being in item 9, which is towards the bottom of the bullet points:

“AREA OF LAND OVER WHICH CONSENT IS REQUIRED”

The area identified was:

41,212 square metres –

which is significantly less than the total area of the land which is identified in the first bullet point, 64.75 hectares, but significantly greater than the area of the single building dealt with in item 10, the hangar, at 100 square metres.  So, to give that item some meaning, it must have intended to limit the size of the private airstrip, not to the 100 square metres, but to the 4.12 hectares.  But the majority took the view that the approval applied to the whole of the land, the 64.75 hectares, and we respectfully submit that that is erroneous.

That is relevant to what her Honour said at paragraph [57] on page 104.  Again, her Honour referred to condition 1, and in the last sentence expressed the view that:

By its terms, condition 1 was premised on the approved use extending to the whole of the property described in the 1991 Approval.

We would respectfully submit that the reference to the land in condition 1 should be interpreted to include “or any part thereof” and in this case that is the 41,212 square metres, which her Honour then want on to deal with in paragraph [58], and I have said a few things about that already.  Then we come to paragraph [59], and in this paragraph her Honour stated, at about line 37, that:

The information in item 9 is thus to be understood in the context of the dual purpose of the Consent Application and did not seek to limit the physical area of the use of land for which consent use was sought. 

There are really no reasons given for that conclusion, and it does seem contrary to the intention of condition 3, item 9.  Then in paragraph [60], her Honour said, at line 50:

No limitation was expressly imposed in the conditions on the number of hangars within the use of providing facilities for aircraft using the airstrip. 

Well, again, we would submit that that is patently wrong because condition 3 read with item 10 referred to only one hangar, and her Honour is relying upon the general definition of “private airstrip” for that conclusion and ignoring the terms of the consent.  Although that again appears to smack of just dealing with this particular consent, it does have wider implications because, as we have submitted in our reply, disputes of this character normally occur between the developer and the local government, and they are quite common, and the assistance of this Court on the sorts of questions that arose in this case would be extremely valuable to the whole country. 

Returning to paragraph [60], her Honour concluded by saying:

A contrary construction is inconsistent with s 33(16C) of the 1936 Act -

which her Honour had set out at page 102 of the application book in paragraph [50].  Again, we would respectfully submit that that is erroneous.  The key part of that whole provision is at the top of page 103 at about line 5, which speaks of:

a condition that . . . reasonably required by . . . the use of the land -

et cetera.  That is a notion which is common in this area and continues to be relevant in the Queensland context, and it is quite orthodox for an approval to be subject to a condition that the development occur in accordance with what was applied for and approved.  So, we would respectfully submit that it is in the interests of the administration of justice that this Court should give consideration to the judgment of the Court of Appeal. 

As the final appellate court, it is appropriate that this Court should resolve the differing approaches in the Court of Appeal which will otherwise only serve to confuse the resolution of future cases where the ambit of a development approval is said to be limited by language used in the approval itself. 

With reference to this Court’s decision in Weston Aluminium, to which all parties refer, the applicants contend that the outcome in the approach in this case should be the same as occurred in Weston Aluminium where recourse to incorporated documents in the 1991 consent in that case revealed a restriction on its interpretation and we would respectfully submit it is not at all clear why, in this particular case, that was not the outcome.  They are our submissions. 

KEANE J:   Thanks, Mr Gore.  Yes, Mr Litster.

MR LITSTER:   Your Honours, could we ask you to go to the application, which is found in application book page 115, lines 40 to 50.  The application applies for special leave from part of the Court of Appeal’s appeals reasons being that which is related to:

“Issue 1”, being the proper construction and scope of a development approval (the 1991 Approval).

If you go to page 90 of the record book, we see at the bottom of the page in paragraph [8] that issue 1 was confined to:

the scope of the 1991 Approval with respect to:

1.        the physical extent of the private airstrip and its hangars –

We pause to note at page 98 of the appeal record, paragraph [34], and point out at about line 39 and following through to line 41, no question of material change of use was agitated in the Court of Appeal, and at paragraph [61] at page 104 at the bottom of the page over to the top of page 105, the relevance of a failure to obtain building approvals for additional structures was expressly disavowed.  Part II of the application for special leave at page 117 identified the question which is said to merit the grant of special leave, and that is:

in what circumstances is it permissible and appropriate, in the construction of a development approval, to limit the extent –

et cetera.  That nominated question, we submit, was not one that was left open in Weston as contended in paragraph 11 of the application at page 122.  In Weston, if your Honours can take up Weston, at the bottom of page 77, it would be paragraph 17, and over to the top of page 78, the Court said two things:

Whether . . . reference may not be made when construing a consent to anything but the consent itself and any documents incorporated expressly or by necessary implication need not be examined.

Secondly:

In particular, it is not necessary in this case to consider what reference may be made to the development application to which the consent responds.

Your Honours, we submit that the question is not a question about which the applicants point to a difference in approach in intermediate appellate level courts.

EDELMAN J:   Well, Mr Litster, was that question even live in the Court of Appeal?

MR LITSTER:   No, your Honour.  The parties were in agreement that one has regard to the material that is incorporated by reference in the permit.  The court dealt with it ‑ ‑ ‑ 

GORDON J:   I think Mr Gore accepts that, Mr Litster.  The question which arises - and I would be interested to know what your answer is - is what Justice McMurdo identifies in paragraph [79]  ‑ application book 108, I apologise.  As I understand the argument, it has gone from a proposal where there was to be one hangar of a particular size and one airway to increase both in number and scale, quite considerable, as well as an addition of other buildings and structures.

MR LITSTER:   There was no ‑ as I said, in the Court of Appeal, the question of the material change of use, that is, the material intensification of the activities on the land was not agitated.

GORDON J:   Activities or – is that right?  I had understood that there was a complaint about that very fact, that the increase in number and scale did not match the approval condition.

MR LITSTER:   Certainly, that was the factual matrix, but it was not agitated that there had therefore been a material change of use.  I am not sure whether that responds to your Honour’s question.  The majority certainly found at paragraph [60], at about line 54, the observation was made:

That the 1991 Approval authorised the erection and use of one hangar, which was what was sought in the Consent Application, did not impliedly impose a restriction on the number of hangars that might be erected . . . for the purpose of the approved use.

EDELMAN J:   It is hard to see that the intention behind the DA could have been to allow, for example, 10 hangars and six airstrips on the land.

MR LITSTER:   I have to accept that, your Honour, but what would have to occur would be that there were applications made such as were necessary depending on when those structures came into existence, under which legislative regime they came into existence.  There would be a necessity for there to be a further application, be it a building permit, because the use of the land was authorised by this approval for a private airstrip.

GORDON J:   As I understand your argument, it is, despite the substantial increase in the number of hangars and the additional airstrip, because there was no application or complaint about a failure to apply for approval to erect those matters, that is the end of it.

MR LITSTER:   Yes, your Honour.  Might I return to the question which has been opposed.  There are absolutely no alternative views expressed by the courts that the appellants refer to as upholding the principle, and they are the Courts of Appeal in New South Wales, South Australia and Queensland.

Of course, this Court in the Weston decision, as your Honours would see at paragraph [23], had regard to an environmental impact statement and referred to it in the permit.  The question was not one that was live in this matter.  There was no issue between the parties about the well‑established principles. 

The parties accepted that it was permissible and appropriate to construe the permit by reference to the documents and it is apparent in the majority’s reasons, and by way of example I reference paragraphs [55] and [60] , and the minority’s reasons at [75] and [77], that all members of the Court of Appeal construed the consent permit by reference to the documents which are referred to or incorporated in the permit.

As such, we say that this matter does not call for consideration or examination of, using the language of the appellant’s question, when it is permissible or appropriate to construe a consent permit by reference to a document which is referred to or incorporated in that permit.

Your Honours, further we would say where the appellants in paragraph 5 of their response – which your Honours will find at the record book at page 147 - they invite the Court:

To unravel the differing approaches in the Court of Appeal ‑ ‑ ‑

in the interests of the administration of justice -

Your Honours, it is not argued that the particular consent for a permit is in a form that is now commonly operative.  The particular two‑limb consent is a vestige from a legislative framework that was replaced over 20 years ago.  The matters raised by the proposed grounds of appeal do not allege that the majority did not have regard to documents which are referred to in – or incorporated in the consent permit.  In that regard, we refer to the proposed grounds of appeal in paragraphs (a) to (h), at record book pages 115 and 116.

The construction of this particular consent, we submit, does not involve an issue of principle which requires consideration by this Court – as this Court observed in refusing leave in the matter of Walter Elliott Holdings, to which your Honours have been referred.

What the applicants ultimately seek to have this Court examine is a constructional clause for a permit which, some 30 years ago, the City of Thuringowa consented to the erection and use of a hangar and toilets, and the use of land for the purpose of a private airstrip in Woodstock, south of Townsville.

Your Honours, they are our submissions.

KEANE J:   Thanks, Mr Litster.  Mr Gibson, do you have anything additional to say – additional to what Mr Litster has said?

MR GIBSON:   No, your Honour.  We are content to accept the submissions that have been made by the first respondent.

KEANE J:   Mr Gore, do you have anything in reply?

MR GORE:   Just briefly, your Honour.  Justice Gordon asked whether there was no complaint about the failure to obtain the approval for the substantial increase in the number of hangars and the like – and, that if that was the case, that was the end of the matter.  That was the applicant’s complaint, and that is revealed by the judgment of Justice McMurdo at page 111 – and this is responsive to some of the exchanges with Justice Edelman and Mr Litster as well.  In paragraph [92], Justice McMurdo pointed out that our argument in that court:

was limited to the correctness of the [primary] judge’s interpretation of the 1991 approvals, and, understandably, did not extend to the factual question of whether there had been a material change of use.  That factual question is not answered in the Planning and Environment Court because of the error in the interpretation of the 1991 approval.  The final resolution of the controversy between the

parties would require an answer to it, and the case should be remitted for that to occur.

His Honour said as much also in paragraph [93].  So, it is a very live issue in the case and there is a distinction – as your Honours are aware – between the building approval and the development approval.  Whilst we did not complain about the lack of a building approval, we did complain about the lack of a development approval. 

Thank you, your Honours.

KEANE J:   Thanks, Mr Gore.  The Court will adjourn briefly to consider the course it will take in this matter. 

AT 9.56 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.03 AM:

KEANE J:   The issue sought to be agitated in this case concerns not a question of principle but rather the application of the principle in the particular case.  In consequence, no issue of general importance such as to warrant the grant of special leave to appeal arises.  The application is dismissed with costs.

Adjourn the Court.

AT 10.03 AM THE MATTER WAS CONCLUDED