Calvary Heath Care Tasmania Inc v Hobart City Council & Ors

[2006] HCATrans 326

[2006] HCATrans 326

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H2 of 2006

B e t w e e n -

CALVARY HEALTH CARE TASMANIA INC

Applicant

and

HOBART CITY COUNCIL

First Respondent

FRANK DAVIES AND SUE DAVIES

Second Respondents

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 16 JUNE 2006, AT 9.28 AM

Copyright in the High Court of Australia

MR S.P. ESCOURT, QC:   May it please the Court, I appear with MR D.R. ARMSTRONG for the applicant.  (instructed by Don Armstrong)

MR G.L. SEALY:   May it please your Honour, I appear with my learned friend, MR D.J.D. MORRIS, on behalf of the first respondent.  (instructed by Simmons Wolfhagen)

MR S.B. McELWAINE:   May it please the Court, I appear for Mr and Mrs Davies.  (instructed by Shaun McElwaine)

HAYNE J:   Yes, Mr Escourt.

MR ESCOURT:   Your Honours, the immunity from regulatory compliance afforded to continuing uses, or what are sometimes known as pre‑existing non-conforming uses, is well understood in Australian planning law.  The approach to statutory construction adopted by the Full Court below in this case strips that immunity of all its practical content.  Moreover, it does so without the Full Court even considering the submission made to it as to the effect of this Court’s decision in Dorrestijn v South Australian Planning Commission. 

Your Honours, we submit that the Court’s decision in Dorrestijn does state a principle of general application.  That principle is that in construing statutory provisions intended to preserve pre‑existing use rights primacy should be given to the protection of the continued use by embracing within that concept such development as would ordinarily or necessarily be involved in the use of the land for the particular purposes for which it continues to be used. 

One might say that the mirror image of that principle, your Honours, is that competing regulatory provisions should be read down or confined to development of a kind not embraced by the concept of continued use so as not to denigrate from the rights that are sought to be protected.  Your Honours, we would say that these principles have as their rationale that it is unjust to take from an owner of land the right to use it for a purpose which has already been established and we say that the principle that can be derived from Dorrestijn conforms to the purpose and object of the statutory provision affording that protection in this case.  That object must be, we would submit, to permit the continuation of the established purpose in a practical manner. 

Your Honours, it might be said against us that Dorrestijn is a case concerning particular statutory provisions and contains no principle of general application.  We would answer by saying that it is clear from the powerful dissenting judgment of Justice Brennan, as his Honour then was, that policy considerations were being examined in Dorrestijn.  His Honour’s reasons were…..Justice Murphy and clearly the tension was between emasculating a planning system and permitting “continued use” to have some practical meaning. 

In the statutory provision under consideration in this case, your Honours, we would say that the text and structure of the section is infelicitous and that there was nothing in its permanent use and development as they are defined elsewhere in the Act which would mandate the court taking a different approach to that taken in Dorrestijn.  Your Honours, if I can just point to the inconstant use, if I can use that word, of the word “use” in this legislation by taking ‑ ‑ ‑

HAYNE J:   Is that not, perhaps, one of the larger difficulties that you confront?  It seems to me there may be a number of difficulties.  One, we are concerned with two car parking spaces, are we?

MR ESCOURT:   Yes, that is so, insofar as the facts are concerned, your Honour.

HAYNE J:   Two, we are concerned with particular legislation which, as you say, is infelicitously expressed.

MR ESCOURT:   That is so, your Honour.

HAYNE J:   Three, have you yet got a judge, Mr Escourt?

MR ESCOURT:   I am sorry, your Honour?

HAYNE J:   It is four men against you at the moment, is it not?

MR ESCOURT:   I take your Honour’s point, but whilst the problem might spring from the text of the statute, the real question is whether one takes a principled approach to the construction of these sorts of sections.

HAYNE J:   But do we ever get to the point of principle that you say arises when we have legislation which, as you say, is infelicitously expressed and you have to grapple with those infelicities, and all this in connection with two car parking spaces.

MR ESCOURT:   Yes, your Honour, I can see that the facts would not necessarily appear to be of great magnitude but we say that the underlying principle is, because in this State there will no longer be what has traditionally been understood to be the protection of pre‑existing non‑conforming use rights.  One may passively use land henceforth, but cannot maintain or repair, cannot carry out necessary development, cannot intensify, and so on.  None of this, we would say, is mandated by the statute. 

The particular problem we would identify with the section is that the word “use” in connection with “land” has one meaning in the section but when it is related to buildings and works it does not pick up the statutory definition which is confined to land.  So within the one section ‑ ‑ ‑

CALLINAN J:   Mr Escourt, I am sorry to return to the facts, but there is something about the case I do not understand.  There is a house on the hospital premise, a residence, is that correct?

MR ESCOURT:   Yes, your Honour.

CALLINAN J:   The house belongs to your client?

MR ESCOURT:   Yes, your Honour.

CALLINAN J:   Your client, what, lets the house to, is it the second respondent?

MR ESCOURT:   No, your Honour.  The house is used for hospital purposes.

CALLINAN J:   As a residence or not as a residence?

MR ESCOURT:   As a residence and rooms, as I understand it, your Honour, medical rooms.

CALLINAN J:   The point was taken initially by the occupant of the house, is that right?

MR ESCOURT:   The house next door ‑ ‑ ‑

CALLINAN J:   The house next door.

MR ESCOURT:   Yes.

CALLINAN J:   Is the house next door a part of the hospital premises too?

MR ESCOURT:   No, your Honour.  It is privately owned.

CALLINAN J:   It is not.  Right, thank you.

MR ESCOURT:   So the facts may appear to involve matters of small moment, but the principle is important for this rather large hospital on the site in suburban Lenah Valley. 

Your Honours, I was about to say that the particular statutory provision carries two meanings for the word “use” within the one…..It talks about “prevent[ing] the continuance of the use of any land, upon which” there are no buildings, and that picks up the definition of “use” in relation to land about which all this argument is had.  I was about to take your Honours to page 52 and 53 of the application book.  If your Honours look at page 53, about line 17, the word “use” is defined “in relation to land”, not otherwise.  So obviously in terms of the definition it is not using in the ordinary sense that that word connotes; it is using for a particular purpose.  If one goes over to page 52, about line 10, where the statutory provision is set out – this is section 20 (3):

nothing in any planning scheme is to –

(a)prevent the continuance of the use of any land, upon which buildings or works are not erected –

So within that subparagraph, clearly the defined meaning of the word “use” can have application because it relates to land and “use” is defined in relation to land.  But the next paragraph, “prevent the use of any building”, would not pick up the defined word “use”.  Equally, the next subparagraph, “prevent the use of any works”, would not pick up the defined meaning of “use”.  So that in respect of buildings and works it would remain arguable that the customary content of the protection for pre‑existing uses remain; that is that with buildings and works you could repair, maintain, carry out necessary developments, substantially intensify and so on, but not with land.  We would suggest that that could never have been intended by the legislature. 

Your Honours, as Justice Gibbs, as he then was, said in Parramatta City Council v Brickworks Ltd back in 1972, these clauses are designed to preserve and protect existing rights and they ought to be liberally construed.  They ought not to be restricted by dubious implications drawn from words used in other clauses and directed to different subject matter.  This is the very problem we have in this case.  May it please the Court.

HAYNE J:   Yes, thank you, Mr Escourt.  We need not trouble you, Mr Sealy or Mr McElwaine. 

The decision of the Full Court of the Supreme Court of Tasmania concerns a disputed and disputable question of statutory construction.  A question of general application which the applicant would seek to agitate in this Court would not fall for decision if leave were to be granted.  In our opinion there are insufficient prospects of an appeal succeeding to warrant a grant of special leave to appeal.  Accordingly, special leave is refused and must be refused with costs.

The Court will adjourn to reconstitute.

AT 9.39 AM THE MATTER WAS CONCLUDED