Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory
[2018] ACTSC 25
•23 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory |
Citation: | [2018] ACTSC 25 |
Hearing Date: | 8 February 2018 |
DecisionDate: | 23 February 2018 |
Before: | Murrell CJ |
Decision: | Application dismissed. |
Catchwords: . | ADMINISTRATIVE LAW – whether duty to grant or decide to grant further lease had arisen under s 254(3) of the Planning and Development Act 2007 (ACT) –– whether surrender of old lease under s 254(1)(c)(i) must precede granting of a new lease of the Planning and Development Act 2007 (ACT) ADMINISTRATIVE LAW – whether duty exercised “as soon as possible” within meaning of s 151B Legislation Act 2001 (ACT) ADMINISTRATIVE LAW – remedies – writ of mandamus – discretion – whether order should be refused on the basis of futility – Supreme Court Act 1933 (ACT) s 34B |
Legislation Cited: | Australian Capital Territory Self-Government (Consequential Provisions) Act 1988 (Cth) s 6 Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ss 29, 30 Supreme Court Act 1933 (ACT) s 34B |
Cases Cited: | Albrecht v Insurance Australia Limited [2016] ACTCA 58; 316 FLR 303 Canberra Tradesmen’s Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; 86 FCR 266 Vines v Djordjevitch (1955) 91 CLR 512 |
Texts Cited: | ACT Legislative Assembly, Parliamentary Agreement for the 9th Legislative Assembly for the Australian Capital Territory, 2016 ACT Planning and Land Authority, Standard Operating Procedure: Application for Grant of Further Crown Lease—General Leasing |
Parties: | Canberra Greyhound Racing Club Inc (Plaintiff) Planning and Land Authority of the Australian Capital Territory (Defendant) |
Representation: | Counsel Mr D Gilbertson QC and Dr D Hassall (Plaintiff) Ms H Younan (Defendant) |
| Solicitors Nelson & Co Solicitors (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 398 of 2017 |
MURRELL CJ:
The Canberra Greyhound Racing Club Inc (the Club) sought an order compelling the Planning and Land Authority of the Australian Capital Territory (the Authority) to grant to the Club a further Crown lease of Block 1255 in the District of Jerrabomberra (the land).
The Club advanced three principal arguments. First, having satisfied the requirements of s 254(1) of the Planning and Development Act 2007 (ACT) (the Planning Act), the Authority fell under a statutory duty to grant a further lease to the Club. Second, the Authority so delayed the performance of that duty, that there was a constructive refusal to perform the duty. Third, in its discretion, the Court should issue a writ of mandamus obliging the Authority to perform the duty. The Authority challenged each argument.
Background to leasing in the ACT
All the land in the Australian Capital Territory (ACT) is “vested in and belong(s) to the Commonwealth”: Commonwealth Constitution s 125.
Upon self-government, the Commonwealth’s rights and obligations under leases were transferred to the ACT pursuant to s 6 of the Australian Capital Territory Self-Government (Consequential Provisions) Act 1988 (Cth). The ACT was given responsibility and liability for the management of Territory lands under ss 29 and 30 of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), respectively.
Prior to self-government, residential and business leases were granted under the City Area Leases Ordinance 1936 (ACT) (City Area Ordinance). The City Area Ordinance did not provide for the grant of further leases. As a matter of practice, provision for the grant of a further lease was made in the original lease.
After self-government, the ACT Legislative Assembly enacted the Land (Planning and Environment) Act 1991 (ACT) (the Land Act), which controlled leases. In 2007, the Land Act was superseded by the Planning Act. The Land Act (in ss 171, 171A, 172, 172A and 172B) and the Planning Act (in pt 9.3) created statutory frameworks for the grant of further leases. There are two types of leases: market value leases and concessional leases.
At all relevant times, Ms Saad was the Manager of Leasing Services at the Environment, Planning and Sustainable Development Directorate. Her team processed applications for the grant of further leases under s 254 of the Planning Act.
During the currency of a lease, it is not uncommon for a further lease to be sought. For example, a developer may wish to establish a new lease expiry date for land that is to be consolidated or subdivided, and a loan applicant may wish to establish a lease date that expires beyond the term of a related mortgage. In addition, the Authority must consider applications for further leases relating to 99-year leases that were granted prior to self-government; these leases will begin to expire in 2023. In order to manage the volume of 99-year leases that will soon expire, the Authority is endeavouring to identify those leases that are due to expire in the next five years.
The standard procedure that is adopted by the Authority in relation to applications for a further lease is contained in the Authority’s Standard Operating Procedure: Application for Grant of Further Crown Lease—General Leasing. In summary:
(a)An application is made online and the application fee is paid.
(b)Inquiries are made to determine whether a lease can be granted and on what terms. The Minister’s office is not consulted.
(c)A determination is made as to whether a further lease can be granted and on what terms.
(d)A surrender form and a new lease form are prepared.
(e)The applicant is advised of the decision and provided with the surrender and new lease forms.
(f)The applicant executes the documents and returns them to the Authority, which then executes them.
(g)The executed documents are provided to the applicant for lodgement at the Land Titles Office.
10. Under this practice, the surrender of an existing lease and the grant of a further lease are virtually simultaneous. The surrender and grant are preceded by a decision about whether to grant a further lease and on what terms. That decision is communicated to the applicant, affording the applicant an opportunity to decline the further lease that is offered or attempt to negotiate the terms of the lease that is offered.
Facts
11. Under the City Area Ordinance, on 17 April 1978, the Commonwealth (as lessor) granted to the Club a lease over the land (the Old Lease). The term of the Old Lease was 50 years, from 23 November 1977 to 22 November 2027.
12. Clause 4(c) of the Old Lease is a purpose clause. It requires that the premises be used only for the purpose of a “greyhound racecourse and ancillary facilities and subsidiary thereto a sportsground”.
13. In accordance with the practice at the time that the Old Lease was granted, clause 6(d) of the Old Lease refers to the grant of a further lease. It provides:
If at the expiration of this lease the Commonwealth shall have decided not to sub-divide the land and that it is not required for any Commonwealth purpose and shall have declared the land to be available for lease the Lessee shall be entitled to a further lease of the land for such further term and at such rent and subject to such conditions (including re-appraisement of rent) as may then be provided or permitted by Statute Ordinance or Regulation;
14. On 27 July 2016, the ACT Minister for Gaming and Racing stated publicly that, having regard to the findings of the Special Commission of Inquiry into the NSW Greyhound Racing Industry, it was untenable for the ACT Government to continue allowing and financially supporting the practice of greyhound racing in the ACT.
15. On 30 October 2016, the Parliamentary Agreement for the Ninth Legislative Assembly for the ACT was released publicly. Item 13 of the Agreement recorded a commitment to end the greyhound racing industry in the ACT.
16. In March 2017, the ACT Government appointed a consultant, Ms Durkin, “to provide an analysis of the approach to the transition to end the greyhound racing industry in the Territory” by June 2018.
17. On 10 April 2017, the Club applied to the Authority for a further 50-year lease of the land. The application was allocated to Ms Baeta for processing.
18. On 13 April 2017, Ms Baeta sought an assessment of the concessional status of the lease and advice about whether the land was required for any public purpose. On 18 April 2017, she requested an officer to “prepare a new lease plan for [the land]” and obtained confirmation that the rent was paid up to date. On 8 May 2017, in response to a request by Ms Baeta, the ACT Valuation Office provided an assessment of the appropriate annual rent for a 50-year lease.
19. In May 2017, a draft further concessional lease and lease surrender were prepared. The draft further lease contained a purpose clause requiring that the premises be used for the purpose of “a greyhound racecourse and ancillary facilities and subsidiary thereto a sports ground”.
20. A draft covering letter dated May 2017 was prepared. It was to have been signed by Mr Zeller, who was the Assistant Manager of Leasing Services. It was addressed to the chairman of the Club. It stated:
I refer to your application for the grant of a further lease, and I am pleased to offer you a further lease over the above block. This offer will remain open for 28 days from the date of this letter, and acceptance of the offer will be indicated by signing and returning the attached documents.
The process is finalised by way of the surrender of the existing lease and registration of the new Crown lease for 50 years. The Instrument of Surrender and two copies of the new Crown lease are enclosed for signature by the Lessee.
21. However, the draft letter and attached documents were not sent to the Club.
22. On 15 May 2017, Ms Durkin furnished her final report, entitled “Greyhound Racing Industry Transition Options Analysis”. She concluded that legislative change was the best “transition” option and that there would be sufficient time for the Club to wind back its activities if legislation was passed “in the current year”.
23. By late May 2017, the Club’s application for a further lease had come to the attention of Mr Phillips, who was then the Executive Director, Planning Delivery Division of the Authority. Mr Phillips was concerned that the proposed purpose under the lease would become unlawful if legislation was introduced to ban greyhound racing. He instructed Mr Zeller to “hold off” processing the application for a further lease pending clarification of the arrangements to end the greyhound industry.
24. On 24 May 2017, Mr Zeller wrote to Ms Baeta advising that Mr Phillips had “asked us to hold off processing the further lease for the greyhound track until you receive some advice from the Minister’s office”.
25. In June 2017, Mr Phillips made a draft determination of the concessional status of the lease and found that it was a concessional lease.
26. On 23 June 2017, the Attorney-General announced that legislation would be introduced to prohibit greyhound racing. It was proposed that the legislation would end the industry by 30 June 2018.
27. In August 2017, Mr Watt, a lobbyist employed by the Club, made a number of telephone calls to the Authority enquiring about the application.
28. On 31 August 2017, Ms Saad wrote to Mr Phillips. Ms Saad noted that the application for a further lease had been “put on hold back in May 2017 until further advice was received from the Minister’s office” and that the application was “still on hold”. Ms Saad said that the lessee was seeking information about the progress of the application.
29. On 31 August 2017, Mr Phillips told Ms Saad that she should not proceed with a further lease “at this stage”.
30. On 12 September 2017, Mr Phillips met with Ms Saad and Mr Zeller. According to Mr Phillips, he stated that “we [cannot] grant the lease for a purpose that [will], or [may], become unlawful” but “could resume processing the lease once it became clearer how the intention of the Government might be put into effect in any legislative amendments”. Mr Phillips expressed the opinion that, while awaiting finalisation of the legislative arrangements, “it would be preferable to delay processing the application rather than to reject the application”. According to Ms Saad, Mr Phillips also pointed out that “the legislation does not give a timeframe for the making of a decision on the application” and said that “you can tell Mr Watts that we have his application and the decision is not being made on it and there is no statutory timeframe for the making of the decision.”
31. On 12 September, Mr Zeller spoke to Mr Watt. Mr Watt’s file note regarding the conversation recorded:
Mr Zeller advised that he and his team believed the CGRC’s application for an extension was in order and that there was no reason normal processes of granting an extension could not or should not occur. However, he said his supervisor had escalated discussion about the lease extension to the Department’s executive and discussions with the Minister’s office had occurred.
Mr Zeller said his Manager and the Executive and Minister’s office decided that the lease should not be extended as it was for a purpose that would soon become unlawful.
…
He then advised that his Manager said that to bypass this scenario, the Department would simply be not making a decision, rather than deciding not to grant an extension. His manager advised that as there was no time frame stipulated to grant an extension, a non-decision or inaction would deliver the same result but not see due process breached.
32. On 13 September 2017, Mr Zeller emailed Mr Watt to confirm that the Authority had decided to delay processing the application for a further lease, noting that the legislation was silent as to the timeframe within which an application must be processed. The email continued:
Firstly, the planning and land authority as an independent statutory authority has decided to delay processing your application for further lease. At this stage I am not aware of any ministerial involvement, my meetings to date have been conducted at a senior management and executive level … [T]he legislation is also silent on the time frame an application was to be processed in.
The reason that we are holding off processing is that we are concerned that greyhound racing may be subject to a legislative ban shortly, and the authority is hesitant to issue a further lease for a purpose that could soon become unlawful.
33. On 20 September 2017, Mr Phillips informed Minister Gentleman’s office that:
The planning and land authority has informed the club that it will not renew a lease for a purpose that is likely to come unlawful.
34. On 21 September 2017, Mr Phillips approved the following answer to a media inquiry about when a decision would be made:
Until the outcome of the proposed legislative ban on greyhound racing is concluded, a decision on the application will not be made.
35. On 29 September 2017, the Club’s legal representatives wrote to Ms Saad and Mr Zeller asserting that, pursuant to cl 6(d) of the Old Lease and s 254(3) of the Planning Act, the Authority was obliged to grant the application for a further lease. The letter stated that if the application was not approved within seven days, the Club would initiate proceedings. These proceedings were commenced on 11 October 2017.
36. An “Assembly Brief” dated October 2017 that was “actioned” by Ms Saad and “cleared” by Mr Phillips stated by way of “background”:
The application for the grant of a further Crown lease was not being processed until the outcome of the future of greyhound racing in the ACT was known.
The Crown lease has been identified as a possibly concessional lease, however, a determination to establish whether the Crown lease is considered to be a concessional lease is yet to be made.
Any future use of the land for purposes other than greyhound racing would require the Lessee to lodge a development application to vary the Crown lease and apply to payout the concessional status if determined a concessional lease.
37. On 28 November 2017, the Legislative Assembly passed the Domestic Animals (Racing Greyhounds) Amendment Act 2017 (ACT) and the Racing (Greyhounds) Amendment Act2017 (ACT), the combined effect of which is to prohibit the Club from holding greyhound races on the land. The Bills had been introduced into the Legislative Assembly on 2 November 2017. The legislation commences on 30 April 2018, which means that greyhound racing and trialling in the ACT must cease from 30 April 2018.
38. There are concurrent proceedings in the Federal Court of Australia. In those proceedings, the Club challenges the validity of sch 1, cl 1.2 of the Domestic Animals (Racing Greyhounds) Amendment Act 2017 (ACT) and the Racing (Greyhounds) Amendment Act 2017 (ACT) insofar as they conflict with ss 51(xxxi) and 122 of the Constitution and/or s 23(1)(a) of the Australian Capital Territory (Self-Government) Act 1988 (Cth). Relying on Mutual Pools & Staff Pty Limited v Commonwealth (1993) 179 CLR 155, 185, the Club claims that the ban on greyhound racing is tantamount to an “acquisition” that was not on “just terms”. Ex hypothesi, the enactments are ultra vires.
39. The evidence established (and there was no real dispute) that:
(a)The application was made on 10 April 2017 and it was in order.
(b)By about late May 2017, a draft surrender and further lease had been prepared, but at that time the Authority decided to put the Club’s application “on hold”. The decision to delay processing of the application was maintained despite requests by the Club that it be determined.
(c)The application was put “on hold” because the Authority believed that legislation may be introduced that would make the proposed purpose of the lease unlawful.
(d)The Authority was fortified in its decision because the Planning Act prescribed no time within which an application must be considered.
(e)There was no evidence of ministerial involvement in the Authority’s decisions.
(f)On 29 September 2017, the Club formally demanded that the Authority exercise its statutory duty within seven days.
(g)The proceedings were commenced on 11 October 2017.
(h)On 28 November 2017 legislation was passed that made greyhound racing unlawful in the ACT from 30 April 2018.
Issues
40. There are three principal issues:
(a)Was the Authority under a statutory duty to grant the 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?
Did the circumstances give rise to a statutory duty?
Submissions
41. The Club submitted that, pursuant to s 254(3) of the Planning Act, the Authority “must grant” a further lease to an applicant if the requirements of s 254(1) are met; while there is a discretion regarding the term of a further lease, there is no discretion about whether to grant it. The s 254(1)(c)(i) requirement to surrender an old lease does not require that the old lease be surrendered before the duty to grant a further lease arises; it merely requires that an old lease be surrendered at the same time as a further lease is granted. In that sense, the s 254(1)(c)(i) surrender requirement need not be met before the statutory duty arises under s 254(3).
42. For the purpose of the proceedings, the Authority accepted that, except for the requirement imposed by s 254(1)(c)(i), all the requirements of s 254(1) were satisfied. The Authority submitted that, until an old lease was surrendered, there was no statutory duty to grant a further lease. No statutory duty had arisen in this case because the Club had not surrendered the Old Lease.
43. The parties submitted that the question of statutory construction was whether s 254(1)(c)(i) of the Planning Act must be met before a duty to grant a further lease arises under s 254(3). For the reasons that appear below, I would frame the question differently; the real issue is whether and when the statutory duty to decide whether to grant a further lease arises.
The Planning Act
44. The Explanatory Statement that accompanied the Planning Act explained that the general purpose of the Act is:
[T]o create a contemporary planning and land administration system, processes and practices that will provide greater certainty, clarity and consistency and which is flexible, timely, less repetitious and administratively manageable.
45. The Authority is a body corporate established under s 10 of the Planning Act.
46. One function of the Authority is to grant, administer, vary and end leases on behalf of the executive: Planning Act s 12(1)(g).
47. Part 9.2 of the Planning Act concerns grants of leases generally. Within pt 9.2, s 237 gives the Authority power to grant leases on behalf of the executive, which itself grants leases on behalf of the Commonwealth. Section 244 provides that the Authority need not grant a lease to an applicant. Section 247 provides that leased land must not be used for a purpose other than a purpose authorised by the lease.
48. Part 9.3 of the Planning Act concerns grants of further leases. It contains two sections, which provide:
254Grant of further leases
(1)This section applies if—
(a)a person (the lessee) who is or was the holder of a lease (the old lease) of land applies to the planning and land authority for the grant of a further lease of the land; and …
(b)neither the Territory nor the Commonwealth needs the land for a public purpose; and
(c)either—
(i)before expiry of the old lease, the lessee surrenders the old lease; or
(ii)the old lease expired not more than 6 months before the application for the grant of a further lease; and
(d)if the old lease is not a residential lease—all rent due under the old lease is paid; and
(e)if the further lease is a rural lease …
(f)the criteria (if any) prescribed by regulation are satisfied.
(2)For a lease granted or arising under the Unit Titles Act 2001 …
(3)The planning and land authority must grant the lessee a further lease of the land for a term not longer than—
(a)99 years; or
(b)for a rural lease …
(4)…
(5)A further lease begins on the day after—
(a)the day the old lease is surrendered; or
(b)for a further lease granted on application after the expiry of the old lease—the day after the old lease expires.
(6)…
255Grant of further lease includes authorised use
(1)This section applies if a further lease is granted under this part on the surrender of an existing lease.
(2)The further lease must authorise each use of the leased land, and any building or structure on the land, that the lease surrendered authorised.
(3)However, this section does not apply if a change of use of land, or a building or structure on the land, that involves a lease variation is applied for at the same time as the grant of the further lease is applied for.
(4)To remove any doubt, a further lease may include provisions that are different from the lease that it is replacing.
Example
A further lease includes a restriction on the number of dwellings that may be built on the lease. The lease the further lease is replacing did not include a similar provision.
…
(emphasis added)
49. Chapter 13 concerns the review of decisions. Section 408A enables an “eligible entity” to apply to the ACT Civil and Administrative Tribunal (ACAT) for a review of a “reviewable decision”. Schedule 1 to the Planning Act defines a “reviewable decision” to include a decision to refuse an application for further lease under s 254. There is no right to seek review of the terms upon which a further lease is granted.
Consideration
50. When discussing applicable principles of construction in Albrecht v Insurance Australia Limited [2016] ACTCA 58; 316 FLR 303, this Court said at [43]:
… the interpretation of a statute is not merely a linguistic or semantic exercise. The context in which the words appear, including the purpose of the provisions, must be considered in the process of statutory construction (citations omitted). No less is required by s 139 of the Legislation Act 2001 (ACT) which requires that, in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred and s 140 which requires that the provisions of the Act must be read in the context of the Act as a whole.
51. It is important to observe that, not only does s 139 of the Legislation Act2001 (ACT) provide that, “[i]n working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation”, but s138 defines “working out the meaning of an Act” to include “finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable”.
52. As the Authority submitted, the requirements in s 254(1) are, in a sense, “preconditions” to the duty contained in s 254(3). Section 254(3) applies only if those preconditions are satisfied.
53. However, s 254(1) says nothing about the temporal relationship between meeting particular s 254(1) requirements, the decision to grant or refuse a further lease and to decide the terms upon which a further lease will be offered, the invocation of the s 254(3) duty to actually grant a further lease and the deemed commencement of the further lease.
54. A consideration of the purposes of the further lease provisions and the associated surrender provisions supports the view that the surrender of an old lease must immediately precede (in a practical sense, occur at the same time as) the grant of the further lease and that any other result would be manifestly unreasonable.
55. First, in the context that land in the ACT is not held on a freehold basis, further leases are designed to provide existing occupants/lessees with ongoing security and continuity of tenure; leases are granted for up to 99 years. It would be contrary to that purpose if a lessee was required to surrender an old lease without knowing whether and upon what terms a further lease would be granted (including the length of the lease and whether there would be restrictions on use pursuant to s 254(4)) and in the absence of a right to seek ACAT review of the further lease that is offered.
56. Second, a central purpose of surrender provisions is to ensure that, between an old lease and a further lease there is neither an overlap (causing potential conflict of lease obligations) nor a hiatus in the need to observe contractual obligations. Section 254(5) achieves continuity by means of statutory deeming; it provides that a further lease begins on the day after the surrender or expiry of the old lease.
57. Third, s 255(1) provides that s 255 applies “if a further lease is granted under this part on the surrender of an existing lease” (emphasis added). These words suggest that, as a matter of practice (not just statutory deeming), grant and surrender will occur at the same time. Section 255 requires that, whenever a further lease replaces a surrendered lease, the further lease must authorise the same use as the surrendered lease. It indicates that, in all cases where a further lease replaces a surrendered lease, the further lease will be granted “on” the surrender of the existing lease, i.e. immediately after the old lease is surrendered.
58. However, the preceding discussion about the temporal relationship between the surrender of an old lease and the statutory duty to grant a further lease does not dispose of the matter because it does not deal with the decision to grant or refuse a further lease and on what terms.
59. Other than in the context of providing a right to apply for review of a “decision under s 254 to refuse to grant a further lease”, the Planning Act does not expressly refer to the decision to grant or refuse a further lease under s 254.
60. By necessary implication, pt 9.3 gives 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 will be offered. That decision requires the exercise of discretion, particularly in relation to the term of the further lease (for non-rural land, up to 99 years) and whether the further lease should include provisions that are different from those in the old lease in that they restrict the way in which the authorised use will operate (as contemplated by s 255 (4)).
61. Once a decision is made, it may be communicated to the applicant. If the applicant wishes to abandon the application (for example, because it considers that it is in its best interests to maintain an old lease rather than pursue the further lease that is offered) or attempt to negotiate a different lease term or different conditions, the applicant has the opportunity to do so. From a practical perspective, this means that the surrender of an old lease and the grant of a further lease must occur after the decision is made and communicated.
62. The current practice of the Authority employs this two-stage process. First, a decision is made and communicated to the applicant. Later, surrender and grant occur virtually simultaneously.
63. There is a statutory requirement to surrender an old lease before a further lease is actually granted, although in practice it is likely that surrender and grant will occur virtually simultaneously. However, there is no statutory requirement to surrender an old lease before the Authority is required to perform the implied statutory duty to make a decision about whether and on what terms a further lease will be granted.
Was there a “constructive refusal” to exercise a statutory duty?
Submissions
64. The Club relied upon two aspects of delay: the lapse of time from 10 April 2017 (when the application was lodged) to 11 October 2017 (when the proceedings were commenced) and continuing; and the deliberate decision of May 2017 to put the application “on hold”.
65. The parties accepted that delay can amount to constructive refusal to perform a duty.
66. The parties also accepted that a failure to respond to a clear demand can evidence a constructive refusal to exercise a duty; although it is not a “rule of law”, it is a convenient method of testing whether there has been a refusal, actual or constructive, to exercise power: Re Media, Entertainment and Arts Alliance and Others; Ex Parte the Hoyts Corporation Pty Limited and Others (1993) 178 CLR 379, 394 (Hoyts).
67. However, the Authority submitted that, in this case, it was reasonable to delay the processing of the application because:
(a)The sole use for which the further lease was sought was as a greyhound racecourse and that purpose was likely to become unlawful in the near future through the introduction of legislation.
(b)It was also reasonably possible that the government’s position on greyhound racing might change.
(c)The circumstances in which a further lease was sought were unusual.
(d)As the Old Lease was not due to expire for 10 years, the Club would suffer no prejudice if the application was delayed.
(e)If a further 50 year lease was granted and the use contemplated by the lease became unlawful, the decision would have ongoing consequences for 50 years.
(f)The Authority would not wish to be seen to sanction activity that was about to be rendered unlawful.
Consideration
68. The Planning Act does not prescribe a period within which an application must be considered. Nor does it fix a time within which a decision must be made.
69. Consequently, s 151B of the Legislation Act applies. It provides:
151B Doing things for which no time is fixed
(1) This section applies if—
(a) under an Act or statutory instrument, something must or may be done; but
(b) no time is provided for doing the thing.
(2) The thing must or may be done as soon as possible and as often as needed.
70. Both the decision to grant or refuse a further lease and any grant of a further lease are things that impliedly or expressly ”must be done” under the Planning Act. Consequently, they must be done “as soon as possible”.
71. The words “as soon as possible” express a relative concept. They mean that action must be taken as reasonably as possible in the circumstances. There is no requirement for action to be taken “immediately” although, in some circumstances, “as soon as possible” may bear that meaning.
72. A number of Federal Court of Australia decisions consider the meaning of the different but somewhat similar expression “unreasonable delay”. In Thornton v Repatriation Commission (1981) 35 ALR 485 (Thornton), the applicant contended that there had been “unreasonable delay” in making an administrative decision. Four months after being directed to review an earlier decision, the Commission advised the applicant widow that it had deferred consideration of the matter pending the outcome of a court case which raised similar issues. At 490–491, Fisher J observed that the reasonableness of any delay was a matter for objective determination; the question was whether it was “appropriate or justified in the circumstances, or whether it was capricious and irrational.” His Honour found that the delay in question was not unreasonable. After reviewing the authorities, his Honour said at 492:
The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is on the evidence a delay for a considered reason and not in consequence of neglect, oversight or perversity. Moreover it is a delay for a finite and not an indefinite period. Admittedly it is uncertain when the High Court will hand down its decision but one is not entitled to assume that there will be any excessive delay.
73. Relying upon Thornton, the Authority contended that the circumstances justified its delay.
74. There are two answers to the Authority’s submission.
75. First, there is a well-established distinction between waiting for a decision in a test case or appeal (which will resolve the existing law) and waiting for a possible legislative change. While there may be exceptions, it is generally the case that possible legislative change is no excuse for delay.
76. In Esso Australia Resources Pty Ltd v Federal Commissioner of Taxation (No 1) [2011] FCAFC 134; 284 ALR 66 (Esso), the respondent sought to adjourn the hearing of an appeal on the basis that legislation had been introduced that would have retrospective operation and affect the correctness of the primary judge’s decision. The Court observed that the proposed legislation was not guaranteed passage through the legislature and that, even if the legislation was enacted, it would still be necessary to consider the appeal in order to decide costs. At [15], the Court was inclined to the view that it was not appropriate for a court to take into account, as a controlling factor, the prospect of a substantive legislative amendment which would accrue for the benefit of a party. The Court referred to Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527, 534, where Mason P (with whom Sheller and Beazley JJA agreed) adopted as correct the following passage from the dissenting decision of Burt CJ in Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190,194:
…The courts are charged with the high responsibility of administering justice according to the law as it is. A party invoking the jurisdiction of the court must be permitted to seek his justice upon that basis and the court cannot deny him that right because of a reasonable expectation that at some future date the law will be changed and with that change that his rights according to law will be changed. It may well be that his victory, should he enjoy one, will be Pyrrhic. If it is, then so be it.
77. The Court in Esso saw no reason to depart from that statement of principle.
78. Similarly, in this jurisdiction, when considering whether a decision maker may take into account whether its decision will or may result in an unlawful use of land, the courts have focussed on whether the use is necessarily unlawful at the time when the decision is made, rather than speculating about whether it may become unlawful in the future.
79. In Canberra Tradesmen’s Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; 86 FCR 266 (the Casino case), the Court considered a challenge to a decision of the Commissioner for Land and Planning to vary the terms of an existing Crown lease to a casino to enable the casino premises to be used as a club. Section 76 of the Casino Control Act 1988 (ACT) prohibited gaming machines in a casino. However, under the Liquor Act 1975 (ACT), gaming machines were permitted in licensed clubs. At [32], the Court observed that a club—as defined in the lease—was not necessarily a body that operated gaming machines. As there was nothing “necessarily unlawful” about the use of the casino as a club, the Commissioner’s decision did not authorise an unlawful act.
80. The Casino case was discussed in Canberra Tradesmen’s Union Club Inc v Minister for Environment Land and Planning [2000] FCA 203; 98 FCR 145 (the Rex Hotel case), which concerned a challenge brought against a decision to amend the terms of the lease to approve the use of the Rex Hotel as a “club”. It was contended that the proposed use as a club would be unlawful because, under s 34(4A) of the Liquor Act 1975 (ACT), it was not lawful to grant a liquor licence (or a gaming machine licence) to a club situated upon the Rex Hotel land. The question was whether the effect of the amendment was lawful in the face of s 34(4A). At [60]–[61], Finn J observed:
When an additional permitted use is added to a lease, that addition does not of itself mean that then and there an actual use can lawfully be made of the premises for that purpose at all or alongside other permitted uses … There can be no objection to having the lease itself include that use as a permitted use notwithstanding that in a given instance it may be difficult, unlikely, or even impossible without a change in the law to satisfy those conditions for such a lawful actual use of the property.
There is, in my view, no justification for assuming that [the applicant] – or for that matter any other like applicant – will as of course make an actual unlawful use of property because the use happens to be a permitted use. The circumstances are far removed from those when an actual unlawful use is occurring at the time of a planning application.
81. The Authority should have had regard only to the law at the time when the relevant decision was otherwise ready to be made. As at May and June 2017, greyhound racing was not unlawful, let alone “necessarily unlawful”.
82. Second, there is an important distinction between the Thornton test (which addresses “unreasonable delay” in making a decision) and the s 151B test of “as soon as possible” that applies in the present case.
83. In Vines v Djordjevitch (1955) 91 CLR 512, the High Court considered a statutory provision requiring an aggrieved claimant to give notice “as soon as possible” after learning that a motor car that had been involved in an accident could not be identified. After adverting to another statutory provision requiring that notice be given “within a reasonable time” after knowledge arose, the Court went on to state at 522:
Presumably “as soon as possible” requires a higher degree of expedition [than “within a reasonable time”]. Perhaps the most satisfactory paraphrase is to say with all reasonable expedition of which the circumstances allow.
84. Referring to the analysis of the expression “as soon as possible” by Barrett J in SWV Pty Ltd v SpirocPty Ltd [2006] NSWSC 668; 201 FLR 238, [57]–[59], in Georgalis v ACT Planning on Land Authority [2012] ACAT 1, [56]–[58], President Spender summarised the law relevant to the construction of the s 151 B expression “as soon as possible” as follows:
Although some cases have referred to the expression as meaning “within a reasonable time”, particularly Starke J in Bowes v Chaleyer, Pearce and Geddes considered that this interpretation seems too generous to the person obliged to carry out the activity.
In Bowes v Chaleyer, the High Court had before it a contract for the sale and shipment of goods, “half as soon as possible. Half in six months”. Isaacs and Rich JJ regarded “as soon as possible” as “somewhat more stringent than ‘a reasonable time’”
In SWV Pty Ltd v Spiroc Pty Ltd, Barrett J in the New South Wales Supreme Court considered Bowes v Chaleyer and Vines v Djordjevitch and concluded as follows: [footnote omitted]
…But the passages I have quoted are sufficient to illustrate four basic propositions: first, the words “as soon as possible” take their meaning from the context in which they are used; second, they do not indicate the greatest degree of speed humanly achievable; third, they import a requirement of reasonable expedition or such despatch as is reasonable practicable; and fourth, a “reasonable time” marks the very outer limit of “as soon as possible”.
(footnotes omitted)
85. The Authority failed to make a decision about whether and on what terms to grant a further lease “as soon as possible” within the meaning of s 151B of the Legislation Act. By May/June 2017 the Authority had made all relevant enquiries and draft surrender and lease documents had been prepared. The decision could have been made and communicated almost immediately, but the Authority deliberately decided to delay the decision. From that time, there was a constructive refusal to grant a further lease. The demand that was made in September 2017 provided further evidence of refusal to decide.
Should the Court grant the relief sought?
Submissions
86. The Club submitted that there should be an order that the Authority grant a further lease; there was utility in making such an order as the Federal Court may declare the legislation rendering greyhound racing unlawful to be invalid. The discretion to refuse a remedy should be used only if it is “crystal clear” that no useful result could ensue and, because of the Federal Court proceedings, it was not “crystal clear”.
87. The Authority submitted that, even if it had refused to perform a duty, in its discretion the Court should decline relief because there has been no real injustice to the Club and such an order would have no utility. Further, it was not appropriate to compel performance of the duty because, following the introduction of legislation, it was now “crystal-clear” that greyhound racing will be unlawful in the ACT from 30 April 2018. Alternatively, any order should compel the Authority to make a decision about the grant of a lease; it should not compel the grant of a lease. Among other matters, there would need to be a consideration of the term of any further lease.
Consideration
88. Section 34B of the Supreme Court Act 1933 (ACT) empowers the Court to grant any relief by way of “prerogative order”, including an order which is in the nature of, and to the same effect as, relief by way of a writ of mandamus.
89. Mandamus may issue where there has been jurisdictional error and, although there has been no demand for the exercise of jurisdiction, there is no doubt as to what is required, e.g. where there has been a failure to act within a time fixed by statute: Hoyts, 394.
90. In this case, on 29 September 2017, the Club made a demand. Further, as I have found, by May/ June 2017 there was a constructive refusal to decide the application.
91. There is always a discretion to refuse relief. The Court in its discretion may decline to make a prerogative order having regard to delay, waiver, acquiescence or other conduct of the prosecutor or another relevant circumstance: Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57; 204 CLR 82 at [53]. Ultimately, it is a question of what is just: Director of Public Prosecutions for the ACT v Martin [2014] ACTSC 104; 286 FLR 120 at [357].
92. In Caric v Minister for Immigration and Border Protection [2017] FCA 1391, Bromwich J discussed the exercise of the discretion in the context of utility (futility). At [26]–[27] his Honour said:
… Although jurisdictional error has been found, the grant of [an order quashing a decision or an order directing reconsideration of an application] is discretionary and may be withheld on the ground of futility. This is because the court will not grant a writ unless satisfied that it will be effectual: R v Army Council; Ex parte Ravenscroft [1917] 2 KB 501 at 511.5. It may not be granted if, inter alia, no useful result could ensue: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400, cited with approval and quoted in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [56].
27. There is a need for considerable caution before a remedy is withheld on the ground that it could produce no useful result. Full Court authority suggests that the discretion to withhold relief should only be exercised where the eventual outcome is “crystal clear”: see Gill v Minister for Immigration and Border Protection [2017] FCA a 5051 per Griffiths and Moshinsky JJ at [95] …
93. In that case, relief was granted because the outcome of a reconsideration was “other than inevitable”: at [43].
94. This case is different.
95. 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.
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.
97. The application is dismissed.
98. I will afford the parties an opportunity to make short submissions on costs.
| I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 23 February 2018 |
1
0
13