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Concrete Constructions Group Pty Ltd v McNamara, B.L

Concrete Constructions Group Pty Ltd v McNamara, B.L

Case [1990] FCA 78 13 March 1990

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Re: CONCRETE CONSTRUCTIONS GROUP PTY LIMITED
And: BRIAN LEONARD MCNAMARA; PETER FIRMAN HARRISON; EDWARD GEORGE WENSING and
MINISTER FOR INDUSTRY, EMPLOYMENT AND EDUCATION OF THE AUSTRALIAN CAPITAL
TERRITORY
No. ACT G47 of 1989
FED No. 78
Town and Country Planning
92 ALR 427
70 LGRA 241

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Sheppard(2) and Neaves(3) JJ.

CATCHWORDS

Town and Country Planning - City Area leases (A.C.T.) - Lease from Commonwealth - Application for variation of purpose clause - Uses proposed not inconsistent with uses specified in "Civic Centre Canberra - Policy Plan 1989" - Variation refused on ground that proposed user would adversely and to significant degree affect the local amenities by traffic congestion - Whether exercise of discretion miscarried - Whether relevant interests limited to those of adjoining occupants and their amenities - Whether the Supreme Court had assumed the role of a planning authority

City Area Leases Act 1936 (A.C.T.), s.11A

HEARING

CANBERRA

#DATE 13:3:1990

Counsel for the appellant : Mr B.J. Tamberlin, QC and Mr B. Preston

Solicitors for the appellant: Mallesons Stephen Jaques

Counsel for the second and : Mr D.F. Rofe, QC and Mr B. Hull
third respondents

Solicitors for the second and: Macphillamy Cummins and Gibson
third respondents

Counsel for the forth respondent: Mr T. Simos, QC and

and Mr R.E. Williams
Solicitor for the fourth : A.C.T. Government Solicitor

respondent

ORDER

The appeal be dismissed.

The appellant pay the costs of the first, second and third respondents of the appeal.

There be no order as to the costs of the fourth respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Concrete Constructions Group Pty Limited (Concrete Constructions) is the lessee from the Commonwealth of lands situated in Civic Centre, Canberra, known as Blocks 1 and 2, Section 35, Division of City. It applied to the Supreme Court of the Australian Capital Territory (Kelly J.) pursuant to s.11A of the City Area Leases Act 1976 (ACT) to vary the covenant of the two leases in relation to the purpose for which the land the subject of those leases might be used.

The existing purpose of Block 1 is that the land is to be used for the main purpose of an industry (other than a noxious trade) employing not more than 50 employees and for any purpose subsiduary thereto such as a residence or shop. The existing purpose of Block 2 is that the land is to be used for the same purpose but the industry which may be carried on there is not to employ more than 25 employees. The application in respect of both blocks of land was refused.
From that judgment Concrete Constructions has appealed to this Court. The first, second and third respondents to the appeal are three objectors, Brian Leonard McNamara, Peter Firman Harrison and Edward George Wensing, who were granted leave by the Supreme Court pursuant to s.11A(6) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Concrete Constructions Group Pty Ltd v McNamara, B.L

Details

AGLC: Concrete Constructions Group Pty Ltd v McNamara, B.L. & Ors [1990] FCA 78 (92 ALR 427; 70 LGRA 241)
Case: [1990] FCA 78
Decision Date: 13 MARCH 1990

CaseChat Overview and Summary

Concrete Constructions Group Pty Ltd sought a variation of the purpose clause of a lease for land in Canberra. The first to fourth respondents, including the National Capital Development Commission, opposed the application. The case was heard in the Federal Court of Australia. The primary issue was whether the trial judge erred in refusing to vary the purpose clause of the lease, considering that the proposed use was not inconsistent with the Civic Centre Canberra - Policy Plan 1989. Another issue was whether the trial judge misapplied the discretion by focusing only on the impact on local amenities and traffic congestion, without considering other relevant interests. The court also considered whether the trial judge had effectively taken on the role of a planning authority.

The court found that the trial judge did not misapply the discretion in refusing to vary the lease. The judge properly considered the potential impact on local amenities, including traffic congestion, which was a significant factor in the decision. The court rejected the argument that the trial judge should have considered other interests beyond those of the adjoining occupants and their amenities. The court also concluded that the trial judge did not assume the role of a planning authority but exercised the discretion within the bounds of the relevant legislation. The court found that the trial judge's decision was well-reasoned and supported by the evidence.

As a result of the court's decision, the appeal was dismissed. The appellant was ordered to pay the costs of the first, second, and third respondents. There was no order regarding the costs of the fourth respondent. The court's decision upheld the trial judge's refusal to vary the purpose clause of the lease, considering the potential impact on local amenities and traffic congestion. The court found that the trial judge properly exercised the discretion and did not assume the role of a planning authority.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the costs of the first, second and third respondents of the appeal.

There be no order as to the costs of the fourth respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Concrete Constructions Group Pty Ltd v McNamara, B.L. & Ors [1990] FCA 78 (92 ALR 427; 70 LGRA 241)

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Legislation Cited

City Area Leases Act 1936 (ACT) 11A
4 mentions
Australian Capital Territory (Self-Government) Act 1988 (Cth)
2 mentions
City Area Leases Act 1976 (ACT)
2 mentions
Federal Court of Australia Act 1976 (Cth)
2 mentions
National Capital Development Commission Act 1957 (Cth)
2 mentions