Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory
[2018] ACTCA 54
•6 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory |
Citation: | [2018] ACTCA 54 |
Hearing Date: | 15 November 2018 |
DecisionDate: | 6 December 2018 |
Before: | Burns, Elkaim and Mossop JJ |
Decision: | Appeal dismissed with costs |
Catchwords: | APPEAL – ADMINISTRATIVE LAW – Appeal against primary judge’s dismissal of an application seeking a writ of mandamus to compel the respondent to grant the appellant a further Crown lease under s 254 of the Planning and Development Act 2007 (ACT) – whether primary judge took irrelevant considerations into account – she did not – whether primary judge erred in finding there was no utility in granting the relief sought – she did not – appeal dismissed with costs |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth), s 23(1)(a) City Area Leases Ordinance 1936 (ACT) Racing (Greyhounds) Amendment Act 2017 (ACT) |
Cases Cited: | Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory [2018] ACTSC 25 |
Texts Cited: | ACT Legislative Assembly, Parliamentary Agreement for the 9th Legislative Assembly for the Australian Capital Territory, 2016 Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th edition, Law Book Co) |
Parties: | Canberra Greyhound Racing Club Inc (Appellant) Planning and Land Authority of the Australian Capital Territory (Respondent) |
Representation: | Counsel D Gilbertson QC and D Hassall (Appellant) H Younan (Respondent) |
| Solicitors Nelson & Co Solicitors (Appellant) ACT Government Solicitor (Respondent) | |
File Number: | ACTCA 14 of 2018 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 23 February 2018 Case Title: Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory Citation: [2018] ACTSC 25 |
THE COURT:
Introduction
Canberra Greyhound Racing Club Inc (the Club) holds a lease from the Commonwealth granted pursuant to the City Area Leases Ordinance 1936 (ACT) in 1978. The legislation presently governing that lease and its renewal is the Planning and Development Act 2007 (ACT) (the Planning Act). The Club’s lease runs for 50 years from 23 November 1977 until 22 November 2027. It permits the use of the land for the purpose of “a greyhound racecourse and ancillary facilities and subsidiary thereto a sportsground”.
Following the report of the Special Commission of Inquiry into the Greyhound Racing Industry in New South Wales, the relevant Australian Capital Territory (ACT) Minister stated publicly that it was untenable for the ACT Government to continue allowing and financially supporting the practice of greyhound racing in the ACT. On 30 October 2016, the Parliamentary Agreement for the 9th Legislative Assembly for the Australian Capital Territory was released publicly. This was an agreement between the leader and deputy leader of the ACT Branch of the Australian Labor Party and the ACT Greens members of the Legislative Assembly describing, inter alia, shared priorities and outcomes for the 9th Legislative Assembly. It recorded a commitment to end greyhound racing in the ACT. In March 2017 the ACT Government appointed a consultant “to provide an analysis of the approach to the transition to end the greyhound racing industry in the Territory” by June 2018.
It was against this background that on 10 April 2017 the Club applied to the respondent, the Planning and Land Authority (the Authority) for a further lease. The entitlement to a further lease is governed by ss 254 and 255 of the Planning Act. Section 254 applies if certain criteria set out in s 254(1) are met. They include relevantly that “the lessee surrenders the old lease”. Where the preconditions are met the Authority “must grant the lessee a further lease”: s 254(3). Section 255 provides that the further lease “must authorise each use of the leased land, and any building or structure on the land, that the lease surrendered authorised”: s 255(2). The section is, however, clear that the terms of the further lease may differ from the original lease because the section provides that “a further lease may include provisions that are different from the lease that it is replacing”: s 255(4).
While the Authority took some steps in relation to the application, it declined to make any final decision about whether or not to grant a lease or upon what terms. That was because the Authority formed the view that the purpose for which the lease was to be granted, greyhound racing, was likely to become unlawful.
The Club commenced proceedings on 11 October 2017 seeking an order in the nature of a writ of mandamus to compel the Authority to grant to it a lease for an additional term of 50 years.
On 28 November 2017, the Legislative Assembly passed the Domestic Animals (Racing Greyhounds) Amendment Act 2017 (ACT) and the Racing (Greyhounds) Amendment Act 2017 (ACT), the combined effect of which was to prohibit the Club from holding greyhound races on the land. That legislation commenced on 30 April 2018.
The proceedings that had been commenced by the Club were heard and determined by Murrell CJ in February 2018: see Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory [2018] ACTSC 25 (Reasons). Her Honour identified that there were three principal issues:
(a)Was the authority under a statutory duty to grant a further lease under s 254(3) of the Planning Act?
(b)If so, did the Authority “constructively refuse” to perform that statutory duty?
(c)If so, should the Court grant the relief sought?
On the first issue her Honour found that Pt 9.3 of the Planning Act gave rise to a duty on the part of the Authority to decide whether or not, for what term and on what conditions a further lease would be offered. That decision required the exercise of discretion, in particular in relation to the term of the further lease which was, for non-rural land, up to 99 years and whether the further lease should include provisions that were different from those in the existing lease so as to restrict the way in which the authorised use would operate: Reasons at [60]. Her Honour then found that once that decision was made, it would be communicated to the applicant and if the applicant wished to accept a lease on those terms (or other terms which might be agreed) it would be in a position then to surrender its existing lease and accept the new one. As a consequence, there was no requirement to surrender an old lease before the Authority was required to perform the implied statutory duty to make a decision about whether and on what terms a further lease would be granted: Reasons at [63]. Her Honour’s conclusion that an implied duty to make a decision existed and her conclusion that there was no obligation to surrender the lease before that implied duty arose were not challenged in this appeal.
Her Honour then found that there had been a constructive refusal to exercise that statutory duty. That conclusion is not challenged in this appeal.
Finally, her Honour turned to the question of whether or not the Court should grant relief. She held that the granting of relief was discretionary. Her Honour noted that there was no challenge in the proceedings before her to the validity of the two pieces of amending legislation and, hence, proceeded on the basis that the legislation was valid. Her Honour concluded at [96]:
From 30 April 2018, greyhound racing will be unlawful in the ACT. The sole purpose of the proposed further lease is to undertake greyhound racing. Under the Old Lease, the Club can pursue greyhound racing until 2027, to the extent that it is lawful to do so. Consequently, there is no utility in granting the relief sought.
Her Honour dismissed the Club’s application.
Grounds of appeal
The grounds of appeal are as follows:
(a)In the exercise of her discretion, the learned Chief Justice acted upon a wrong principle, namely that:
i.it was necessary for the Appellant Club to have challenged;
ii.alternatively the Appellant Club should have challenged,
the validity of the Domestic Animals (Racing Greyhounds) Amendment Act 2017 (ACT) and/or the Racing (Greyhounds) Amendment Act 2017 (ACT) (the legislation) in the proceedings below; (Reasons for Decision, [95]).
(b)In the exercise of her discretion, the learned Chief Justice took into account an irrelevant consideration, namely that there was no challenge to the validity of the legislation in the proceedings below; (Reasons for Decision, [95]);
(c)In the exercise of her discretion, the learned Chief Justice failed to take into account a relevant consideration, namely the Appellant’s proceedings in the Federal Court of Australia in proceeding number ACD82 of 2017 in which the Appellant Club seeks relief including declarations of invalidity of the legislation;
(d)The learned Chief Justice erred in finding that there was “no utility in granting the relief sought” as there was evidence before the Court below of there being such utility, namely, the proceedings in the Federal Court of Australia; (Reasons for Decision, [96]).
Grounds (a), (b) and (c)
Each of these grounds of appeal is said to arise from the terms of [95] in her Honour’s reasons. That paragraph provided:
In these proceedings, the Club could have challenged the validity of the Domestic Animals (Racing Greyhounds) Amendment Act 2017 (ACT) and/or the Racing (Greyhounds) Amendment Act 2017 (ACT) but chose not to do so. I proceed on the basis that the legislation is valid.
Her Honour had referred earlier in her reasons to the existence of concurrent proceedings in the Federal Court of Australia in which the Club challenged certain provisions in the two Acts on the basis that they were contrary to either s 51(xxxi) of the Constitution or s 23(1)(a) of the Australian Capital Territory (Self-Government) Act 1988 (Cth): Reasons at [38]. Her Honour identified that the Club claimed that the ban on greyhound racing was tantamount to an acquisition of property that was not on just terms and hence that the relevant parts of the legislation were invalid.
Counsel for the appellant accepted that these grounds of appeal depended upon reading [95] of her Honour’s reasons as involving a normative statement that the Club ought to have challenged the validity of the legislation in the proceedings in this Court. It is only upon that reading of [95] that the appellant was able to argue that her Honour acted upon a wrong principle, took irrelevant considerations into account or failed to take relevant considerations into account.
Paragraph [95] of her Honour’s reasons does not contain any normative statement. It is merely a statement of fact. The fact was that there was no challenge to the validity of the legislation before her Honour. In circumstances where the extant challenge to the validity of the legislation in the Federal Court had not been determined, the position was that Her Honour was obliged to proceed on the basis that the legislation was valid. As [95] does not contain the implication upon which the first three grounds of appeal depend, those grounds of appeal must be dismissed.
Ground (d)
The relevant part of her Honour’s reasons relating to this ground (that is [96]) is set out at [10] above. The appellant's submissions relied upon the decision of the Full Court of the Federal Court in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; 250 FCR 309 (Gill) and cases which have subsequently referred to that case. In Gill, Griffiths and Moshinsky JJ (with whom Logan J agreed) were considering whether to make orders quashing a decision and a writ of mandamus compelling the Migration Review Tribunal to re-determine an application according to law. Their Honours referred to the discretionary nature of remedies on judicial review and the fact that they may be withheld in an appropriate case, notwithstanding that the applicant has established jurisdictional error. This included refusal of relief on the ground of lack of utility or futility: Gill at [95]. Their Honours referred with approval to the discussion in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th edition, Law Book Co at [17.150]), that when considering the likely outcome upon a remission; “Unless the eventual outcome is crystal clear, a consideration of a likely outcome might shade into a consideration of the desirable outcome, which is something that must be left to the primary decision-maker.” There Honours therefore considered that there is a need for considerable caution before a remedy, such as mandamus, is withheld on the ground of lack of utility even where a jurisdictional error has been demonstrated: Gill at [96]. Their Honours also referred to the decision in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 in which Gaudron and Gummow JJ referred to the lack of an inevitable outcome if the jurisdictional error had not been committed and that it was sufficient that the jurisdictional error had denied the prosecutor the possibility of a successful outcome. In the circumstances of Gill, their Honours declined to refuse relief because it was “not a case where it can confidently be said that it is inevitable that the Tribunal would make the same findings on a reconsideration”: Gill at [99].
The present case is not one which involves solely the question of whether a refusal of a lease was inevitable.
Where the preconditions set out in s 254(1) were satisfied, then, as the Chief Justice found, there was an obligation upon the Authority to make a decision about the terms upon which it would grant a new lease. Once that decision was made, it was only if the Club wished to surrender its existing lease and accept the offered terms that a new lease would be granted. The difficulty that arose was the only permitted use under the proposed new lease was an activity which was anticipated to be, and now is, unlawful.
If an order of mandamus was made compelling the making of a decision about the terms upon which a new lease would be granted, then the Authority would need to consider whether or not the new legislation qualified its obligation to grant a new lease. Counsel for the Authority raised this issue but it is not necessary for the Court to determine it. If the Authority concluded that there remained an obligation to grant a new lease for the sole purpose of conducting an unlawful activity, then it would need to determine the terms upon which it was to offer that lease.
Having regard to the fact that the only permitted use was one which would be an unlawful use, the case may readily be distinguished from the Casino case: Canberra Tradesmen’s Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; 86 FCR 266 and the Rex Hotel case: Canberra Tradesmen’s Union Club Inc v Minister for Environment, Land and Planning [2000] FCA 203; 98 FCR 145. In the former case, there was nothing “necessarily unlawful” about the additional use (Casino case at [32]) and, in the second case, while the additional use “may be difficult, unlikely, or even impossible without a change in the law”, it was only one of a number of permitted uses and there was no reason to believe that the land would actually be used unlawfully (Rex Hotel case at [60]). In contrast, in the present case, apart from presently irrelevant ancillary and subsidiary uses, the only activity permitted on the land has been rendered unlawful.
In light of the unlawfulness of the activity and the unchallenged capacity of the Authority to determine the term of any lease offered and the conditions upon which that lease was offered, it is inevitable that the terms of the lease offered would be less favourable to the Club than its existing lease. It must be remembered that at present the Club has the benefit of a lease which continues until 2027. As the law currently stands, the Club did not identify any realistic scenario in which the Club might be offered a lease more favourable than the one which it currently holds. There is no realistic prospect that, with the law as it is, the Club would be offered a lease on terms more favourable than its current lease.
The only basis upon which it contended that the legal environment in which its application was to be determined would change was as a result of the outcome of the Federal Court proceedings. If those proceedings were successful and the relevant legislation was invalidated then unless remedial legislation was passed — a possibility which cannot be discounted — the basis for a refusal by the Authority to process the application for a new lease would disappear. The possibility that part of the legislation will be found to be invalid is clearly something which cannot be ignored when considering whether to refuse relief. However, if such a situation arose then it would do so prior to the expiry of the existing lease. Having regard to what is said above, the same cannot be said if a further lease was offered and granted.
In summary, so long as the relevant legislation is not declared to be invalid, there is no realistic prospect of the Club being offered a new lease on terms more favourable than its existing lease because either:
i. it may not be open to grant a lease with the same purpose clause having regard to the amending legislation (an issue which we do not need to decide); or
ii. if it is open to grant a lease then, having regard to the amending legislation, the Authority would inevitably seek to minimise the extent to which the lease authorised an activity which is unlawful.
In the event that the prohibition was lifted as a result of the outcome of the Federal Court proceedings, then there would no longer be a basis for declining to complete the statutory process and the Club would be in a better position to take advantage of that circumstance under its existing lease than if a new lease had been previously granted.
In those circumstances it would be inappropriate for this Court to compel the Authority to engage in the process required by s 254 because, having regard to the combination of circumstances outlined above, it is inevitable that the process would not lead to the granting of a lease any more favourable to the Club than its existing lease. The Chief Justice was correct in concluding that by reason of the legislation rendering the sole purpose of the proposed lease an unlawful activity, there was no utility in granting the relief sought.
There is a further reason why inevitably relief would be refused. Initially, the relief sought in the Notice of Appeal was that an order in the nature of a writ of mandamus be granted to compel the Authority “to grant to the Appellant a further lease of the land… in accordance with the Appellant’s Application dated 10 April 2017”. In the application of 10 April 2017, the Club had sought a further lease for a term of 50 years. The unchallenged conclusion of the Chief Justice was that s 254 compelled the Authority to make a decision about whether or not the statutory preconditions for the grant of the new lease had been met and the terms upon which such a lease would be granted. After that decision was made, it was only if the lessee chose to accept those new terms and a surrender took place that a grant of a new lease occurred. In those circumstances, it is clear that the Court could not have made an order compelling the grant of a new lease because that was dependent upon the agreement of the lessee to surrender the old lease in exchange for a new lease on the offered terms. This difficulty was pointed out to Senior Counsel for the Club and an oral application for leave was made to amend the Notice of Appeal. That application was granted. As amended, the Notice of Appeal sought an order in the nature of mandamus compelling the Authority “to grant to the appellant a further lease of the land … in accordance with s 254(3) of the Planning and Development Act2007 (ACT)”. While this amendment avoided the contention that a new lease was to be for 50 years or upon the same terms as the existing lease, it did not address the problem that the Court could not compel the grant of a new lease in circumstances where the grant of a new lease was dependent upon the Club’s acceptance of the terms of any lease which might be offered. The amended claim for relief was not directed, as it might have been, to that which could have been compelled by an order in the nature of a writ of mandamus, namely the making of a decision as to the terms upon which, consistent with s 254, a new lease would be offered in exchange for the surrender of the old.
The terms of the Notice of Appeal in its amended form are such that even if the contentions of the Club were otherwise successful, the appeal would be dismissed.
Conclusion and order
Having regard to the conclusions above, the appeal must be dismissed. Costs will follow the event.
The order of the Court is: Appeal dismissed with costs.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 6 December 2018 |
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