City of Fremantle v Minister of Planning

[2000] WASC 3

CITY OF FREMANTLE -v- MINISTER OF PLANNING & ORS [2000] WASC 3

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 3
Case No:	CIV:2153/1998	Heard:	13 JANUARY 2000
Coram:	MASTER BREDMEYER	Delivered:	21/01/00
No of pages:	9	Judgment Part:	1 of 1
Result:	Application allowed in part
PDF Version

Parties:	CITY OF FREMANTLE MINISTER OF PLANNING MINISTER OF HERITAGE FETHERSTONE HOLDINGS PTY LTD
Catchwords:	Pleading Application to strike out Declaratory relief sought only Whether relief sought is academic
Legislation:	Town Planning & Development Act 1928, s 39
Case References:	Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Gardner & Anor v The Dairy Industry Authority of New South Wales (1977) 52 ALJR 180 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Johnco Nominees Pty Ltd v Albury/Wodonga (NSW) Corp [1977] 1 NSWLR 43 Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38 Thorne v Motor Trade Association [1937] AC 797 Ku-Ring-gai Municipal Council v Suburban Centres Pty Ltd [1971] 2 NSWLR 335

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : CITY OF FREMANTLE -v- MINISTER OF PLANNING & ORS [2000] WASC 3 CORAM : MASTER BREDMEYER HEARD : 13 JANUARY 2000 DELIVERED : 21 JANUARY 2000 FILE NO/S : CIV 2153 of 1998 BETWEEN : CITY OF FREMANTLE

Plaintiff

AND

MINISTER OF PLANNING
First Defendant

MINISTER OF HERITAGE
Second Defendant

FETHERSTONE HOLDINGS PTY LTD
Third Defendant

Catchwords:

Pleading - Application to strike out - Declaratory relief sought only - Whether relief sought is academic

Legislation:

Town Planning & Development Act 1928, s 39

Result:

Application allowed in part

(Page 2)

Representation:

Counsel:

Plaintiff : Mr C M Belyea
First Defendant : Ms C F Jenkins
Second Defendant : Ms C F Jenkins
Third Defendant : No appearance

Solicitors:

Plaintiff : Clayton Utz
First Defendant : Peter Apostolos Panegyres, Crown Solicitor
Second Defendant : Peter Apostolos Panegyres, Crown Solicitor
Third Defendant : Nil

Case(s) referred to in judgment(s):

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Gardner & Anor v The Dairy Industry Authority of New South Wales (1977) 52 ALJR 180
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Johnco Nominees Pty Ltd v Albury/Wodonga (NSW) Corp [1977] 1 NSWLR 43

Case(s) also cited:

Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38
Thorne v Motor Trade Association [1937] AC 797
Ku-Ring-gai Municipal Council v Suburban Centres Pty Ltd [1971] 2 NSWLR 335

(Page 3)

1 MASTER BREDMEYER: This is an application by the first and second defendants to strike out the statement of claim. The plaintiff seeks relief against the first and second defendants only. The action has recently been discontinued against the third defendant. The plaintiff seeks declaratory relief only against the first and second defendants ("the defendants"). The defendants' argument is that the relief sought would have no practical consequence or effect for the parties and hence will serve no useful purpose.

2 An application to strike out a pleading is one which should be granted only if the pleading is "so obviously untenable that it cannot possibly succeed", or "manifestly groundless", or where, to allow it to stand "would involve useless expense": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129.

3 The substantive relief sought against the defendants in the pleading is as follows:

"1. A declaration that the decision of the First Defendant made on or about 2 September 1998 to uphold an appeal lodged by the Third Defendant against the Plaintiff's refusal of an application dated 15 December 1997 for a demolition order of premises located at Lot 412 Thompson Road, North Fremantle is unlawful, invalid and of no force and effect.

2. A declaration that the decision of the First Defendant made on or about 4 September 1998 upholding an appeal lodged by the Third Defendant against the Plaintiff's refusal of an application dated 18 December 1997 for a demolition order of premises located at Lots 19 and 20 Thompson Road, North Fremantle is unlawful, invalid and of no force and effect.

3. A declaration that the decision of the Second Defendant to refuse to issue a Conservation (Stop Work) Order under section 59(2)(b) of the Heritage of Western Australia Act, 1990 is unlawful, invalid and of no force and effect."

4 The background to these prayers for relief as set out in the statement of claim is as follows. The third defendant, Fetherstone Holdings Pty Ltd ("Fetherstone") was the owner of certain land in Thompson Road and Rule Streets, North Fremantle, on which was situated old office buildings

(Page 4)

and old cottages. In October 1996, Fetherstone applied to the City of Fremantle ("the City") for approval to undertake earthworks and to demolish the office buildings and cottages ("the first application"). On 28 October, the City refused the first application. In December 1996, Fetherstone instituted an appeal under the Town Planning and Development Act 1928 ("the Town Planning Act") to the Town Planning Appeal Tribunal ("the Tribunal") against the City's refusal. The appeal was heard by the Tribunal over five days in May and June 1997 and was dismissed by the Tribunal on 7 October 1997. I understand that the Tribunal published 30 pages of reasons for its decision. Fetherstone instituted an appeal against that decision in the Supreme Court in October 1997, but the appeal has not been heard and will, I understand, now be dismissed or discontinued.

5 In December 1997, Fetherstone applied to the City for planning approval to undertake earthworks and demolish the office buildings and cottages ("the second application"). On 2 February 1998, the City refused the second application on the grounds that the buildings and cottages had significant heritage value; that the applications were contrary to the City's written policies, in that they sought planning approval to demolish buildings having heritage value; and that they sought to demolish buildings found by the Tribunal to have heritage value. In April 1998, Fetherstone appealed against that decision to the first defendant, the Minister of Planning. On 2 September 1998, the first defendant upheld the appeal, subject to Fetherstone preparing a historical record and survey to the City's satisfaction.

6 The claim against the first defendant is that he lacked jurisdiction to hear the appeal, that he failed to take into account relevant considerations which are detailed in the pleading, that he took into account irrelevant considerations which are also detailed in the pleading, that he was guilty of procedural unfairness, and that his decision was unreasonable. In elaboration of the lack of jurisdiction claim, the pleading states that the first and second applications to the City were substantially identical. They were both made in respect of the office buildings and the cottages, they were both lodged by or on behalf of the third defendant, and the circumstances pertaining to the second application were not materially different from the first application which was the subject of the City's refusal and of the dismissal of the appeal by the Tribunal. In those circumstances, it is said that, on a proper construction of s 39 of the Town Planning Act, it was beyond the power of the first defendant to entertain the second appeal or, alternatively, that he lacked jurisdiction to do so.

(Page 5)

Section 39 of the Town Planning Act is headed "Alternative appeals", and s 39(1) provides:

"(1) An appeal may be made to the Minister or to the Appeal Tribunal but the commencement of an appeal to one extinguishes any right of appeal to the other."

7 The case as pleaded against the second defendant, the Minister of Heritage, is as follows. By letter dated 26 April 1997, the City requested the Heritage Council of Western Australia ("the Council") to assess the heritage value of the office buildings pursuant to the Heritage of Western Australia Act 1990 ("the Heritage Act"). The Council began its assessment of the heritage value of the office buildings, but did not complete the same. By letter dated 14 December 1997, the plaintiff requested the second defendant to issue a conservation (stop work) order pursuant to section 59 of the Heritage Act ("the first heritage request"). To date, the second defendant has not provided a substantive response to the City's first heritage request. By reason of effluxion of time, the second defendant has constructively refused that request.

8 By letter dated 8 September 1998, the City requested the Council to seek a conservation (stop work) order from the second defendant in respect of the office buildings and the cottages ("the second heritage request"). Shortly thereafter the Council recommended that the second defendant make a conservation (stop work) order in respect of the office buildings pending its assessment of the heritage value of the buildings. The second defendant refused to make the conservation (stop work) order, the subject of the second heritage request. By letter dated 3 November 1998, the City requested the Council to complete its assessment of the heritage value of the office buildings and to assess the heritage value of the cottages. In the circumstances, the first ministerial refusal, alternatively the second ministerial refusal, are void on the grounds that on a proper construction of s 59(2)(b) of the Heritage Act, the second defendant ought, but failed, to have regard to the recommendation of the Council pleaded above (i.e. the recommendation to issue a stop work order pending its assessment of the heritage value of the buildings).

9 This action commenced in October 1998 and the statement of claim which I have summarised is dated 16 November 1998. Since then, the City and Fetherstone have settled their dispute and the action has been discontinued against Fetherstone. As a consequence of that, in the course of the hearing, I struck out prayer for relief No. 4, which sought an injunction restraining Fetherstone from giving effect to the decisions

(Page 6)

made by the Minister. I should add that during this time the Minister of Planning and the Minister of Heritage were the same person. The properties concerned have been sold by Fetherstone to new owners, and, to date, the new owners have not applied to the City for a licence to demolish the buildings.

10 The Supreme Court's power to give a declaration of right is found in s 25(6) of the Supreme Court Act 1935, which provides:

"No action shall be open to objection on the ground that a merely declaratory judgment is sought thereby, and it shall be lawful for the Court to make binding declarations of right without granting consequential relief."

Some of the relevant case law on that is set out in Seaman at 18.16.1 and following. I quote from 18.16.1:

"It is not necessary that the plaintiff should have a cause of action against the party against whom he seeks declaratory relief: JM Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432 at 435, 443 but there must be a justiciable controversy between them."

11 The High Court of England has a similar power to order declaratory relief and I quote from some of the cases digested in the Supreme Court Practice 1991 at 15/16/2.

"The Court will not generally decide academical or hypothetical questions … But a declaration will be granted even though such relief has been rendered virtually unnecessary by the lapse of time for the action to come on for trial, if at the time when the action was brought, it raised substantial legal issues, for in such case the question is not purely academic … Where specific relief, other than a declaration, is not claimed, the jurisdiction to make a binding declaration of right should be exercised with great caution; and a declaration ought not to be made upon a preliminary point in an action brought for that purpose where the substantive relief must be claimed in another action … Generally speaking the jurisdiction of the Court under this rule is in effect only limited by its own judicial discretion … A claim for a declaration only, not followed by a claim for consequential relief, will be carefully watched; but properly employed it is useful."

(Page 7)

12 In Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 435, Gibbs J, with whom Stephen and Mason JJ agreed, said:

"The jurisdiction to make a declaration is a very wide one. Indeed it has been said that, under O 25 r 5, the power of the court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion."

And at 437 – 438, he said:

"It is neither possible nor desirable to fetter the broad discretion given by s 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarised by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 should in general be satisfied before the discretion is exercised in favour of making a declaration. 'The question must be real and not a theoretical one; the person raising it must have a real interest to raise it, he must be able to secure a proper contradictor. That is to say, someone presently existing who has a true interest to oppose the declaration sought.' Beyond that however little guidance can be given."

13 The defendants relied on Johnco Nominees Pty Ltd v Albury/Wodonga (NSW) Corp [1977] 1 NSWLR 43. In that case, the trial Judge declined to grant the plaintiff the declaration sought. On appeal, Hutley JA held that the court had no jurisdiction to make the declaration sought. The majority, Street CJ and Moffitt P, held that the court had jurisdiction to make the declaration sought but that, as a matter of discretion, they should not make that declaration, because by reason of a later Act of Parliament and an action taken under it, there was now no legitimate utility in granting the declaration. The new Act of Parliament and the Ministry's action under it had negated any continuing significance attached to an earlier policy statement. Therefore, whether or not the plaintiff's land was zoned "urban" within the policy statement of 23 October 1973, was no longer relevant and there was now no legitimate utility in making the declaration sought.

14 The defendants also relied on Gardner & Anor v The Dairy Industry Authority of New South Wales (1977) 52 ALJR 180. I quote from Aickin J at 188:

(Page 8)

"Although I have formed the view that the first three rearrangements were not authorised by the Act it does not necessarily follow that a declaration should be made to that effect. The proceedings are unusual in that they seek declarations in a situation in which it is not contended that the appellant's rights as against the Authority will be thereby affected in any way. As my brother Mason points out these rearrangements are no longer in operation and were not in operation when these proceedings were commenced. As he says: 'All that was suggested was that the Executive might in some undefined way initiate administrative or legislative action which would improve the lot of the appellants and persons in the appellants' position'.

I agree that it is not proper to make a declaration in respect of past transactions under legislation which has been repealed or amended and when the court's declaration can produce no foreseeable consequences for the parties."

15 The defendants rely on those latter words. They say, in the light of recent events, namely the discontinuance of the action by Fetherstone and the sale of the land by Fetherstone and the non-action by the new owners to seek permission to demolish the buildings, that the declaration sought from the Court can produce no foreseeable consequences for the parties. Hence there is no legitimate utility to be gained by the Court deciding these questions, only the unnecessary incurring of legal costs. The defendants say that if the new owners of the land want to demolish the office buildings and cottages they would need to apply again to the City for a demolition licence. Then, if the City refuses them that licence, as it is likely to do, they could exercise their appeal rights, to the Tribunal or to the Minister, with a possible further appeal from the Tribunal to this Court. The defendants say that until the new owners have taken that action the determination of this present case is unnecessary and academic.

16 The plaintiff, on the other hand, has argued that the determination of this case has public benefit, that it will decide important points of principle, and that it may have foreseeable consequences for the parties. I consider it a question of considerable public importance whether s 39 of the Town Planning Act permits a party, who has had his appeal dismissed by the Tribunal, to make a fresh application to the City for approval and, if that is refused, to appeal to the Minister of Planning. Prima facie, if the second application is identical or substantially identical to the first one, that appears to be blatant manipulation of s 39 – permitting two appeals

(Page 9)

when the section provides that only one appeal may be exercised. The first defendant is a proper contradictor. He has a true interest in opposing the declaration sought.

17 I consider that the balance of the statement of claim against the first defendant is academic and has no foreseeable consequences for the parties. That, however, could change if the new owners of the land seek a licence to demolish the buildings and are refused, and appeal and, on that appeal, rely on the first defendant's decision allowing Fetherstone's appeal. To allow for that possibility, which I consider is remote, I consider that I should stay, rather than strike out, the balance of the claim against the first defendant.

18 The legal questions raised against the actions of the second defendant, the Minister of Heritage, are of lesser public importance and of no foreseeable consequence to the parties except in the eventuality mentioned above. I consider that part of the statement of claim also should be stayed rather than struck out.

19 I consider the plaintiff should go to trial on par 1 to par 20 and prayers 1, 2, 5 and 6 of the statement of claim only. The balance of the statement of claim should be stayed until further order.