City of Munno Para v John Weeks Pty Ltd (trading as Bi-Lo) & Ors; Munno Para Shopping Centre Pty Ltd v City of Munno Para

[1988] HCATrans 20

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A27 of 1987

B e t w e e n -

THE CITY OF MUNNO PARA

Applicant

and

JOHN WEEKS PTY LLD trading as

BI-LO and BEVTON PTY LTD,MUNNO

PARA SHOPPING CITY PTY LTD

Respondents

Office of the Registry

Adelaide No A28 of 1987

B e t w e e n -

MUNNO PARA SHOPPING CENTRE PTY LTD

Applicant

and

THE CITY OF MUNNO PARA, JOHN WEEKS

PTY LTD trading as BI-LO and

. BEVTON PTY LTD

Munno

Respondents

Applications for special leave to

appeal

WILSON J

DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 19 FEBRUARY 1988, AT 10.09 AM

Copyright in the High Court of Australia

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MR B.R. HAYES£ gc:	May it please the Court.	I appear with

my riend, DR B. BAXTER, for the applicant in the

matter between the Munno Para Shopping Centre Pty

Limited. That party, I understand, did file a rather

late appearance in the other matter of the

City of Munno Para against the respondents.	The
two matters are identical, with respect.
(instructed by Johnsons)

WILSON J:	You are appearing for the shopping centre in both?
MR HAYES:	In both.

WILSON J: Yes, Mr Hayes.

MRS. WALSH: If the Court pleases I appear for the City of Munno Para, the applicant, in action number A27 of 1987 and the respondent in the second action.

(instructed by Ward & Partners)

MR M. BEAMOND:  If it please the Court, I appear with my friend,

MR A. GOODE, on behalf of the respondents John Weeks

and Bevton in both matters. We are respondents

throughout. (instructed by Mellor, Gardner, Beamond &

Page)

WILSON J:  Thank you. Is there any reason why these two

applications should not be heard together?

MR HAYES:  None at all. In fact, it is desirable that they

should.

WILSON J:  Good. Yes, Mr Hayes.

MR HAYES:	If the Court pleases. The applications are for leave to appeal against decisions - a decision in
this Court, whereby the Court by majority quashed
a decision of the Munno Para City Council granting
a consent to the shopping centre to establish a
shopping centre development. The case involves
the construction and meaning of section 47 of the
under that Act and also the status of a document
SOUTH AUSTRALIAN PLANNING ACT and regulations made
known as the development plan under that Act.

I might say, at the outset, that the legislative

requirement in section 47 for a council deciding

to grant or refuse consent to any development is
that it must in considering that application have

regard to the provisions of the development plan

and not to make a decision which is seriously at

variance with those provisions. Now, the question

of law on this point is whether that requirement,

which is one which goes to the jurisdiction of the

planning authority and which is one, therefore,

reviewable by way of proceedings for judicial review

or whether that decision on a planning application

is no more than a requirement that the planning

authority is able to make a valid decision, albeit

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an incorrect decision,which may subsequently be

reviewed and reversed on an appeal by the appeal

provisions in the legislation. We would say that

the legislation contains a comprehensive code for

an appeal procedure in those circumstances. So

the question of law is whether the requirement in

the Act which directs the council to have regard to

the provisions of the development planning and not

make a decision which is seriously in variance with
it, is one that goes to their jurisdiction to make

a valid planning decision as opposed to an incorrect

planning decision.

The Full Court held by a majority that the

requirement in section 47(9) went to their jurisdiction.

DAWSON J:	They held that reluctantly, did they not?
MR HAYES:	Very reluctantly.  And we would say, with respect,

that reluctance underlies an earlier decision of

this Court in the BURNSIDE case, which is now

reported but - we have a book of authorities here which is the loose judgment of the BURNSIDE case. I do not want to take the Court to any detail in

that but suffice it to say that in that case

His Honour Mr Justice Jacobs said that he had some

difficulty in finding that that issue was one
of jurisdiction as opposed to making a planning
decision which would, subsequently, may well be

the wrong decision and an incorrect decision but

which may well be reviewed and reversed on an appeal.

WILSON J:  Is Mr Justice Jacobs at variance as much as you

suggest, Mr Hayes? Looking at page 6 of the typescript

of the judgment I see these words:

I acknowledge, however, that there may

conceivably be cases in which a planning
decision might disclose jurisdicational error

if, for example, the decision to grant

consent is on any view of the matter seriously

at variance with the provisions of the

development plan.

MR HAYES:  Yes. I must acknowledge, with respect, that

I think I said at the outset there is an underlying uncertainty in that part of his judgment as there

was in the Chief Justice's judgment. Now, I think

I would acknowledge that there is a distinction which was being referred to by His Honour

Mr Justice Jacobs where it is almost a situation

where the council, as it were, would not· even have the

development plan in front of it, not even look at

it and have no consideration for. it at all. In

those circumstances the error of law is one which

we would say, simply, they are acting without

jurisdiction because they have not complied with

the statutory requirements. That is a different

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situation to one where they are required to have regard to it, make a decision in accordance with it, but then they make a decision which might,

on one view of the matter, be seriously at variance

with that, and that goes to their ability to make

a valid planning decision. We would say, with

respect, that that places an almost impossible

burden on a planning authority to have that which

is, after all, a body of laymen, to look at a

development plan in order to provide themselves

with the jurisdiction to make a	valid planning
decision in the first place.	We would say that

the legislative intention here is that they ought
to be allowed to make the wrong decision. It is

as simple as that, with respect, and it does not

go to their jurisdiction.

I think the support for that view can be

found in His Honour the Chief Justice's connnents

at page 121 of the transcript of evidence, that

is in our case, the Munno Para City Centre transcript

which is the larger of the two books because it

contains extracts from the development plan.

At page 121, which is page 3 of the Chief Justice's

reasons, he says:

There are cogent arguments in favour of the

first view. There is the nature of the

Development Plan itself. It is a document embodying planning principles and goals

expressed, for the most part, in general terms

rather than in the specific terms apt for

expression of legal criteria which are to be
the determinants of legal validity. There

is the language of paragraph (b) itself.

The determination of the question whether

a proposal is seriously at variance with the

provisions of a planning document such as the

Development Plan, necessarily involves a

large element of planning judgment. There

is an incongruity in a court of law being required,

in proceedings which are not by way of appeal

against the correctness of the decision but

by way of judicial review of its validity, to exercise a judgment of that kind which

must depend to such a degree upon the

individual's assessment of competing

planning values. There is a presumption, to my

mind, against a legislative intention that

the very validity, as distinct from the

correctness, of an administrative act

should depend upon such an uncertain factor

as a judgment as to whether the decision

leading to the administrative act is

seriously at variance with a document expressed

for the most part in terms of general principles

and objectives.

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WILSON J:	He seems to give your client a very good hearing?
MR HAYES:	He did.

It was the result that was the wrong a matter of principle which would justify the grant

one. Your Honour, we say that this does involve of special leave. It has left the situation,

certainly in this State, and we would venture to

suggest that the provisions to have regard to and

make a decision in accordance with - or not seriously

with - are probably common in planning documents

of this kind. But we would submit, with respect,

that the Full Court's decision has raised the

status of what is acknowledged as a planning

document into something of a legal document and

has put an unduly onerous burden on planning

authorities to construe that.

DAWSON J: It maybe that the statute did that,not the decisioni

MR HAYES:  Yes, I accept that, if Your Honour pleases. We

say that there is sufficient basis in our application -

we may be wrong subsequently on the appeal but

we say there is sufficient to justify the grant of special leave. May I say at this point that

the application, this application, is not, as I

understand it, opposed. May I also say that the

applicant, Munno Para City Shopping Centre, has

subsequently purchased the objective land. The

issue, however, is a very live issue as between

the council and the applicant because the effect

is still the same. But we would put the application

on the basis that it does warrant special leave.

It does contain an important point of law. It does, at

the present time, leave the nature and status of
the development plan with a certain amount of

uncertainty having regard to the comments of

Mr Justice Jacobs in the BURNSIDE case, the comments

of the majority in this case~and for those reasons

it is a matter which would warrant the granting

of special leave.

DAWSON J:  It is very hard to get away from the wording

of paragraph (b) though, is it not: "shall not

make a decision"7 To interpret that otherwise

then "shall not be entitled to make a decision"

is very hard.

MR HAYES:  . Well, we would say that it must be viewed

in the context in which that development plan,

and with a consideration of the contents of that development plan established under the Act - - -

DAWSON J: The trouble with that is it also has to be read

in the context of paragraph (a) ,which indicates that

the legislature had the distinction well in mind.

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MR HAYES:	Yes.	If Your Honour pleases,we would say that

both paragraph (a) and paragraph (b) ought to be

viewed very very closely with the nature of the

document, that is, forming the basis of that

regulating development. A simple glance at the

development plan and the provisions indicate how
inappropriate it is to use that document in the

way in which the Full Court has decided.	We say
it goes to the issue of whether	judicial review

ought to be granted or, indeed, whether it ought

to be available in a situation where there is a
legislative scheme providing for a comprehensive
code of appeals which, in turn, incorporates a
document which on any view of the matter is a

planner's document and not a legal document. That,

we would argu~ excludes the process of judicial

review to challenge a decision made under or

pursuant to that section.

WILSON J: But there is a fairly strong public interest

to the contrary, is there not, in the procedures
that pertain to the making of a development plan,
the publicity, the opportunity for objections and so on? If you are going to allow decisions to

be made that are seriously at variance to the plan,

without going through the process of amending

the plan, you are going to end up in what might

be thought to be an chaotic situation dependent only

on an appeal process which does not, itself, bear

on the propriety or the way in which the particular

development meets with the requirements of the plan?

MR HAYES:  Yes. Well, we would say in response to that view,

if the Court pleases, that that appeal process

is precisely the process which the legislation has

envisaged to be used in those circumstances. If

a council is blatantly making decisior:swhich are

seriously at variance with the development plan

it will be reversed through the appeal process.

But we say, with respect, that the council should not be put in the situation where they, as it were,	have got to look at that document and now tread that	delicate line of saying, Well, when do we go into,
as the Court in this case heard no evidence other
than what was in the appeal documents, but certainly
that was not tested evidence on the merits of the
proposal, but just looked at that and said, Well,
on the face of it, in our view, which may well be a different view when looked at from, say, a
professtonal planner's view, it is seriously at
variance with the development plan. Now, we
say that Parliament did not intend, and it would not
be workable if Parliament intended that courts should
take on that role via the judicial review process.

DAWSON J:  Well, what was the purpose of adding paragraph (b)

then?

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MR HAYES:  Well, the purpose of adding that was, as the

earlier decisions have indicated, to indicate as
guidelines to the council what they should be having

regard to and what they should be taking into

account.

DAWSON J: That is what paragraph (a) does.

MR HAYES:	Paragraph (a) was construed by this Court, by the Full Court in the BERRI case which is, I think,
on our list, as meaning - well, have regard to the
provisions of the development plan means that the council can look at the development plan and then disregard or not be bound by it in any way. Now,
we would argue that paragraph (b) was put in -
certainly as Mr Justice White says - to tighten
that process up but not to go straight to the
jurisdiction of the council to make a valid decision,
albeit a wrong planning decision.
WILSON J:	Are you right in describing Mr Justice Legoe

as a dissent.ient on the question of the construction
of the Act?

MR HAYES:  No. Once again, I think I can only take it that

there is this underlying uncertainty - there was no

uncertainty, certainly in Mr Justice White's

judgment on this issue or, indeed, on any of the

other issues.

WILSON J:  And there is a fair balancing of the competing

arguments in the decision of the Chief Justice, but

he comes down against you. ·

MR HAYES:	Certainly.
WILSON J:	Mr Justice Legoe acknowledges that it is a question

of jurisdiction but finds there is no serious

variance?

MR HAYES:  Yes. I would, with respect, submit that

Mr Justice Legoe's decision does also highlight

the sort of uncertainty expressed in

Mr Justice Jacob's views, but I do acknowledge

that ultimately both of them said, "Yes, there are

We would seek to distinguish that in the way in	circumstances in which it could be jurisdictional."
which I have already outlined, and I would only be repeating myself.

WILSON J:	Have you also got a unanimous decision against you on the reference to the highway cotmnissioner
point? I notice you have not brought that into play.

MR HAYES:  No. Your Honour, we would argue on that point -

yes, in the event of any special leave being

given we would certainly be arguing that. But I

put that in association from a special leave point

of view with this one.

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WILSON J:	Yes.
!1R HAYES:	Your Honour is quite right, we have got an

unanimous decision against us on that. That is

a procedural matter and - - -

WILSON J:	But also going to jurisdiction?
!1R HAYES:	Also going to jurisdiction, yes.
WILSON J:	Yes.
!1R HAYES:	Both of those matter, we would say, would warrant

the granting of special leave. If the Court

pleases.

WILSON J:  Thank you, Mr Hayes. Mr Walsh.

!1R WALSH:  If the Court pleases, we support the submissions

that have been put by my learned friend, Mr Hayes,

but in addition to that we point out that there are

two practical effects of the decision of the

Full Court that affect not only this particular

applicant, namely the City of Munno Para, but
also the local government planning system as a

whole. The practical effect of the decision is

that whereas under regulation 38 certain tvpes of

development do not require public notification and

do not have the appeal process available to it,

in effect, this decision means that the judicial

review process will be used by would-be objectors

to applications to overcome that regulation. In

effect they seek an order nisi initially,

then the matter is referred by way of our judicial

review process, under our Supreme Court Rules, to

a hearing before a single judge, in the first

instance, by way of practice.	He may or may not
refer it to the Full Court.	He will ask that

affidavits or possibly oral evidence be heard from

planners, planners to determine what is, in fact,
plan in issue before the court and whether, in

fact, the decision of council is seriously at

variance with the development plan; all a planning

process.

DAWSON J:	This may be right but it does not establish that the Full Court was wrong.
!1R WALSH:	Quite so.
DAWSON J:	Well, that is what you should address yourself

to, should you not?

!1R WALSH:  No. The practical effect, I simply say, is the

delay, that is the first thing, the practical effect

that the local government is concerned about. And

I can say that the City of Munno Para has the support

of the local government association in relation to

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its concern in relation to this decision. Now, the

practical effect being delay which was not envisaged
or, more specifically, excluded because of the

principles in regulation 38 - and it applies not only

to an application of the district shopping centre; it
applies, for instance, in relation to such things as
division of land into four allotments.Whe:reregulation 38
again applies it does not allow an appeal process and

yet there can be claims for judicial review delaying

parties in relation to their application by months,

possibly longer.

DAWSON J: These are all the sort of arguments you would address

to the legislature, are they not?

MR WALSH:  What we say is that it has - I simply mention that

because if in fact there is an important principle of

law involved, as my learned friend,Mr Hayes, says then

we say that principle has enormous practical

significance over a large - - -

DAWSON J:	What is the principle of law?
MR WALSH:	We say the proper interpretation of section 47 of

the planning Act, as my learned friend, Mr Hughes QC

has - - -

DAWSON J: That is what it comes down to, it is a matter of

statutory construction?

MR WALSH: Statutory - yes. The other issue, of course, is that

in this particular application the land in a sense
has become sterile to some degree in relation to any

future application that resembles the particular

proposal that was put. So that the City of Munno

Para has its hands tied to some extent because of this

decision.

WILSON J: If there is a case for retail development to proceed

in zone F, why should not the plan be varied through

the established procedures?

MR WALSH:  We would - sorry, did Your Honour say the plan be

altered?

WILSON J:  Yes. I mean if you say the land is sterile in

zone F because zone F not providing for any retail

development, the shopping centre cannot proceed.

MR WALSH:  That may take a long time. I accept what Your Honour

puts to me but the difficulty in relation to this
particular situation the council is in at the moment

is that it says that it has power under the plan to

approve that particular proposal anyway. It must

be remembered when one looks at the decision that the

plan does not prohibit this particular development; it

simply says there are certain objectives but this is

a consent use. In other words, it was within the power

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of council prima facie to consent to the proposal

and,in fact, when Mr Justice White, in his decision,

refers to planning evidence that was before the

council, he was really talking about a regional

proposal there and not a subsequent proposal which

actually had, by way of some evidence, greater merit.

So it was - - -

WILSON J:  When you refer to a consent proposal, consent of

whom, Mr Walsh?

MR WALSH:	Consent of the council. This proposal can be consented to under the development plan because it is
not a prohibited use. There are three classifications
under tlie development plan, as the Court is most probably
aware: prohibited uses, consent uses and permitted uses.

T4	This was not a permitted use but then again it was not
a prohibited use and it was a consent use and what has
happened we say, is that whilst the Full Court had said
we are not going to delve into planning issues, they
have had to do so in order to come to a conclusion that it was seriously at variance with the development plan.

We say that that has the practical effect of, in

each case, allowing people to challenge by way of the

back door process, namely the judicial review process,

the specific prohibition under regulation 38 that that

should not happen. So it does have considerable

importance from the point of view of local goverment,

this particular council and the people of this

particular council. That is all I have to say,

Your Honour.

WILSON J:  Thank you, Mr Walsh. The Court does not wish to

hear you, Mr Beamond.

The question which is raised to support this application is a question of the construction of a

statute of local application. That is a question

which has been determined by a unanimous Full Court

and we see no principle of general importance
requiring the intervention of this Court.	The

application for special leave will therefore be

refused.

MR BEAMOND:	I seek no order, Your Honour.
WILSON J:	Thank you.

AT 10.35 AM THE MATTER WAS ADJOURNED SINE DIE

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