Concrete Constructions Group Pty Ltd v McNamara, B.L

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 the City Area Leases Act to be heard in opposition to the application. The fourth respondent is the Minister for Industry, Employment and Education of the Australian Capital Territory who was added as a party respondent to the appeal in lieu of the Minister of State for Territories of the Commonwealth of Australia who had been a party respondent to the proceedings before the Supreme Court. The change was effected consequent upon the coming into operation on 11 May 1989 of the main provisions of the Australian Capital Territory (Self-Government) Act 1988 (Cth) and related legislative provisions.
The subject land had been used in association with the publication of the "Canberra Times" newspaper for many years. That use ceased when the publishers opened new premises in Fyshwick, leaving the land vacant. The variations sought before the Supreme Court were the deletion of the purposes clause of each Crown lease and the substitution of the following:

"1(f) To use the said land jointly with the adjoining land for one or more of the following purposes:- Offices, professional suites, car parking, banks, co-operative societies, bars, cafes, restaurants, clubs, indoor recreation facilities, hotels, motels, residential flat buildings, community facilities, health facilities, personal service establishments, service industries, shops, tourist facilities.

PROVIDED ALWAYS THAT:-

(i) the gross floor area of the building or buildings on the said land and the adjoining land shall not exceed 17,600 square metres. For the purposes of this sub-clause gross floor area means the sum of all the areas of all the floors in the building or buildings measured from their external surfaces excluding only rooftop plantrooms used solely for housing mechanical plant and a basement used solely for car parking and housing mechanical plant;

(ii) the gross floor area of the building or buildings on the said land and the adjoining land used for the purpose of shops shall not exceed 1,000 square metres;

(iii) car parking for not less than one car per 100 square metres of gross floor area of the building or buildings on the said land and the adjoining land shall be provided on the said land and the adjoining land."

On 10 June 1988 Concrete Constructions filed an amended Notice of Motion by which it sought orders identical with those sought in the original application save that the area referred to in the first provision was reduced to 16,000 square metres and a further proviso was added in the following terms:

"(iv) the gross floor area of the building or buildings on the said land and the adjoining land used for the purposes of offices shall not exceed $14,000 square metres."

The improvements on Block 1 consist of a two-storey building covering the entire block. The only improvements on Block 2 are bitumen surfacing and several carports.
Concrete Constructions agreed to purchase the unexpired terms of the leases from Federal Capital Press of Australia Limited in May 1985 and the agreement was completed in March 1987.
It is unnecessary to set out the relevant legislation as it is set out in the respective judgments of Sheppard and Neaves JJ., which I have had the benefit of reading in draft form.
Except to the extent that it is necessary later, I do not refer at length to the Policy Plans for the Civic Centre of Canberra developed and published by the National Capital Development Commission (NCDC) as they too are set out in the other judgments. It is sufficient to observe that under the latest Policy Plan adopted in January 1989 and entitled "Civic Centre Canberra - Policy Plan" the subject land falls within what is referred to as an office area identified as Precinct 2a. The objectives of the land use policy for the office areas, including Precinct 2a, are said to be to maintain Civic as the main metropolitan office employment location and to group employment opportunities in close support of retail areas. The primary land use intended for Precinct 2a is shown as office/professional suite. Other land uses permitted are:
Retail Church use
Cafe, bar, restaurant Health centre
Bank Place of assembly
Co-operative society Administrative use
Personal services Community protection
establishment facility
Consulting rooms Residential
Club Hotel
Indoor recreation facility Motel
Cultural facility Passenger transport facility
Social/community facility Carpark
I return to the trial judge's findings in relation to land use policy later.
The evidence established that Concrete Constructions proposes to demolish the existing improvements on the land and to build a six-storey building which will be designed predominantly for offices but which will also be available for some of the other uses referred to. Concrete Constructions' original plan was to erect a building with a gross floor area not exceeding 17,600 square metres, of which not more than 1,000 square metres would be used for shops and for which carparking at the rate of not less than one car per 100 square metres of gross floor area would be provided on the land. After that proposal had been received and as a result of discussions between Concrete Constructions and NCDC, Concrete Constructions decided to reduce the maximum gross floor area to 16,000 square metres, of which not more than 14,000 square metres would be used as offices. The number of carparking spaces proposed was reduced from 176 to 160, all of which would be provided within the building.
It was subsequent to that changed proposal that the January 1989 Policy Plan for Civic Centre was adopted by NCDC.
The objections
The application for variation was duly advertised pursuant to s.11A(4)(b) and brought forth four objections. These were made by the objectors McNamara, Harrison and Wensing, and Mrs M.J. McNamara. Mrs McNamara was not represented at the hearing before the Supreme Court. Mr McNamara appeared in person and the other objectors by counsel.
The objectors McNamara live at 12 Macleay Street, Turner, a little more than one kilometre away from the subject land. Their objections as set out in their Notice of Intention to Oppose dated 12 July 1988 were that commercial development of the type proposed will create further demand for on-street parking with associated increases in motor traffic in Macleay Street and nearby streets which they frequently use for access to shops, entertainment and exercise; that the proposed development is repugnant to the principles "currently espoused" by the NCDC and does not conform with the 1984 Metropolitan Policy Plan; and that the development could lead to a threat to retailing in the Civic Centre because of increased difficulties of access.
The objector Harrison lives at 33 Booroondara Street, Reid, which is a little more than one kilometre away from the subject land. His objections as set out in his Notice of Objection dated 11 July 1988 are that the construction of the subject building would result in employment levels in excess of those set out in the 1984 Metropolitan Policy Plan which could lead to serious traffic congestion, carparking problems, increased transport costs and undesirable environmental impacts. In addition, he asserted that with office management growth in the adjoining areas of Turner and Braddon, Civic employment will soon exceed 35,000 in gross breach of the principles and policies adopted to govern the construction and development of the City of Canberra.
The objector Wensing lives at 164 Maribyrnong Avenue, Kaleen, about 10 kilometres from the land. His objections as set out in his Notice of Intention to Oppose dated 21 July 1988 include that the proposed development is repugnant to the policies set out in the 1984 Metropolitan Policy Plan. He said that redevelopment of the site for office purposes would increase the workforce to 32,750 employees, well above the limits set by the 1984 Metropolitan Policy Plan; would cause an overspill of kerbside parking and create demand for parking in residential areas, thus further deteriorating residential amenity; the road system in Civic would not be able to cope with further increases in traffic without major improvements for which no proposals have been made public; the public transport system would incur an additional deficit of $10-15 million in annual operating costs; the environmental quality and air pollution in the Civic area will further deteriorate; and heritage areas in Reid and Braddon would be severely blighted by all day commuter kerbside parking in residential streets.
The hearing
It is to be noted that the actual hearing of the application by way of evidence commenced in the Supreme Court on 19 December 1988 and continued till 23 December 1988. The hearing resumed on 22 February 1989 when the trial judge reserved his decision, which was delivered on 21 July 1989.
On 13 December 1988 NCDC had made a submission to the Commonwealth Minister for the Arts and Territories headed "Civic Centre Canberra - Policy Plan" pursuant to s.12(1) of the National Capital Development Commission Act 1957. That policy plan was described as being the final policy plan to guide the planning and development of Civic and stated that it superseded the 1984 Civic Policy and Development Plan. Under that plan the predominant land use is shown as "offices". It is apparent that that plan was not made known to the objectors or to the Supreme Court until after the evidence had concluded on 23 December 1988. Hence all the evidence and the main thrust of the objections before the Supreme Court had been based upon the 1984 Metropolitan Policy Plan. However, the 1989 Plan, having been disclosed to the parties, was the subject of submissions and was dealt with in his Honour's judgment.
The judgment
The trial judge made a number of specific findings in relation to the application to vary the purpose clause. He adopted the concession which had been made that it was obvious that it was desirable to vary the purpose clause of the two leases in question in order that the reasonable user of the land should not be impeded. He accepted the evidence of a town planner in support of the application that the commercial office use and other uses proposed would be entirely compatible with the surrounding development in terms of land use and intensity of development. There being no argument to the contrary, he found that the proposed building would be in visual and architectural harmony with nearby buildings. He found that the mere height of the proposed building was not objectionable and that, in the absence of any objection by occupants of a nearby community services building, there would be no adverse effect on the light available to or overshadowing of that building.
He accepted that it would be totally impracticable to keep the land for industrial use, that it would be "silly" to have industrial use in the middle of the city and totally impracticable to use the land for a two-storey building. He found that there would be some increase in chemical pollution from vehicles used in connection with the proposed building but counterbalanced that by the fact that there will be a decrease of chemical pollutants emitted from motor vehicles over the next 10-15 years. He accepted that the proposed development would contribute insignificantly to motor traffic noise. Nevertheless, he found it desirable to avoid levels of pollution at or near the maximum if this can be reasonably achieved and reflected that the question was not whether the community ought to be prepared to put up with some level of traffic problems because other cities have them, but rather whether it is necessary to have the conditions which lead to those traffic problems at all. He prophesied "that the traffic flow in Civic will rapidly deteriorate".
He placed no particular emphasis on the parking problem, accepting that there is a possibility that persons using nearby suburban streets for carparking may be persuaded to use pay-parking stations, open spaces or public transport.
In the 1989 Policy Plan the objectives of the land use policy for the precinct of which the land forms part were set out as follows:

". maintain Civic as the main metropolitan office employment location

. group of employment opportunities in close support of retail areas."

The primary land use policy for the precinct is stated as "office/professional suite". As the trial judge found, other related uses are permitted so that the totality of permissible land use in the precinct very nearly approximates that which was proposed in respect of the area designated as "Commercial office Area 1" in the 1984 Plan. His Honour, however, noted the difference in emphasis. He said:

"Where before there were a number of purposes in respect of which proposals for development or change would normally have been supported and a larger number of purposes for which proposals for development or change of use would have been assessed on individual merit, now the primary land use of the precincts is that given above with the other uses permitted. It seems to me, therefore, that the emphasis of the policy has changed to permit as the primary use of the land within the precinct that of offices or professional suites. It follows that now the use proposed by the applicant comes more emphatically than before within the policy propounded."

He further noted that NCDC had taken into account some of the problems, particularly problems as to parking, which might well have militated more strongly against the application before him than would have been the case had NCDC taken no action.
He referred to the fact that in the redevelopment of Civic Centre every single development that had taken place had been a commercial office development. He then said, referring to the evidence adduced on behalf of Concrete Constructions:

"Men of business can see no other use for the land consistent with its location and value as an inner city site. If that be the case it follows ineluctably, I think, that the land ought to be redeveloped as proposed so that its highest and best use might be availed of unless, and this is the position for which the objectors contend, what I may describe, if broadly and loosely, as environmental factors are to take precedence over what men of business would see as the commercial imperative."

The law

His Honour turned to consider the wide discretion conferred upon the Supreme Court as expounded in Morpath Pty Limited v. ACT Youth Accommodation Group Inc. and Others (1987) 16 FCR 325; (1987) 74 ALR 121. Beaumont J., with whom Fisher and Davies JJ. agreed, said (at FCR p 343; ALR p 140):

"Assuming the grounds for jurisdiction specified in s.11A(2) are made out positively, in the case of para

(a) and negatively in the case of par (b), the Court then proceeds to the second stage, that is, the question of the exercise of the wide statutory discretion conferred by s.11A(1). As has been said, this discretion should be exercised in the public interest, balancing society's interest in the fullest use of land against the interests of local occupants in their amenities. Ordinarily, town planning considerations will be prominent in any such inquiry. Of course, the Court is not a planning authority. But this is not to say that in the exercise of a judicial discretion the Court should disregard town planning considerations. On the contrary, any consideration of the public interest requires that significant weight be given to the current plans of the Commission as the public body charged with that responsibility. There is a clear distinction between, on the one hand, asking the Court to act as a planning authority and, on the other, entitling or requiring the Court to take planning material into account in the exercise of its judicial functions under s.11A (see Preston and Newsom, op cit, p 212). Moreover, in balancing the public interest in the full use of land against the local interest in the amenities, it will be appropriate for the Court to consider whether it is proper to permit the variation to proceed but upon the condition that compensation is paid to those injuriously affected: see s.11A(8)(b)."

The primary judge said he regarded himself as required to exercise that discretion in the public interest, balancing society's interest in the fullest use of land against the interests of local occupants in their amenities. He rejected a submission put to him by Concrete Constructions that the present respondents were not local occupants as they were not occupants in the vicinity or area of the proposed building concerned about the impact of the building on them in and about the use of their premises. His Honour regarded such an interpretation as being unduly restrictive and said that he could not see why residents within a district who can show that their amenities will be affected by the erection of a new building may not properly be described as local occupants.

On the hearing of the appeal to this Court it was not contented that his Honour had not properly found that there were such circumstances existing as made it desirable to vary the leases of the subject land in order that the reasonable user of the land should not be impeded, nor was there any contention that he had incorrectly found as a fact that no certificate in terms of s.11A(2)(b) of the City Area Leases Act had been filed by the relevant Minister.
It was common ground on the hearing of the appeal that he correctly identified the substantial issue remaining to be determined within the exercise of the Court's discretion, i.e. -

"whether the use of the building proposed to be erected, should the application be granted, will, adversely and to a significant, that is to say, more than to a minor, acceptable degree, affect the local amenities by traffic congestion, parking overspill (into neighbouring residential areas), air pollution and damage to the heritage."

Having found expressly that the proposed development conformed with NCDC's current planning proposals for the subject land and that NCDC had taken into account some of the problems, particularly problems as to parking, which might well have militated more strongly against the application if the NCDC had taken no action, his Honour concludes:

"Nevertheless, it seems to me that this is a case where longer term interests ought to prevail. If I were to grant this application I would be compounding a situation where problems of great magnitude come into existence as a result of developments like those proposed. The community as a whole will suffer. Underlying the evidence which I heard on behalf of the applicant seemed to be the viewpoint that the application is concerned with a Central Business District, that such Central Business Districts throughout Australia and, no doubt, throughout the world, suffer traffic congestion, lack of parking space, noise and chemical pollution and other problems and there is no reason why Canberra's Central Business District should not put up with those problems at least

(to) some degree. But it is not necessary that this should be the case in Canberra. The Metropolitan Policy Plan seems to me to be still a valid document even though it does not deal specifically with the land. That Policy Plan considered an appropriate upper limit of employment in the Civic district as 27,000. I do not think that the Commission was bound by that figure because some tolerances must be allowed in planning to take account of unforeseeable or unforeseen contingencies and events. But it seems to me that what is proposed here would result in a large increase in what on the evidence is already well on the way to being an overcrowded business area which will require for its proper servicing the expenditure of vast sums of money. As to this I accept the estimates given by Mr Morison, taken from a draft report on Transport Implications of City Development prepared in June 1985, that the expenditure on transport to serve properly its growth from a work force of 27,000 to one of 35,000 would be $586,000,000 for capital works, including $300,000,000 to establish a public transport system less sensitive to delay on the roads, with estimated increased operating costs of $10,000,000 a year. Those figures would now, four years later, be much higher. I think this court can accept that in the current economic climate it is most unlikely that the vast sums of money which will have to be spent to put into place the necessary supporting infrastructure will be available.

In my opinion the application should, in the exercise of the discretion referred to above, be dismissed. There will be an order accordingly."

The role of this Court

The manner in which an appellate court should exercise its power to interfere with a discretionary judgment has been laid down by the High Court many times. In House v. The King (1936) 55 CLR 499, which was an appeal against sentence, Dixon, Evatt and McTiernan JJ., having observed that the appeal was a full one on law and fact, said at pp 504-505:

"But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

The court declined to interfere with the sentence.

In Pearlow v. Pearlow (1953) 90 CLR 70, the High Court unanimously reversed a discretionary judgment of the primary judge where the trial judge was given by the relevant legislation an absolute discretion to grant or refuse a dissolution of marriage. At p 76, Dixon C.J. observed, having quoted the foregoing passage from House v. The King:

"Whatever may be the case under particular statutes, it is not possible to maintain the truth as a general proposition of the view expressed by Jordan C.J. in Thompson v. Thompson (1942) 59 WN (N.S.W.) 219 'that if an appeal lies from the exercise of a discretion which is determinative of substantive legal rights, the appellate court must exercise its own discretion' (at p 220). But while an appellate court will not set aside the exercise of a discretion by a primary judge on the ground that it disagrees with him, it is a mistake to limit the power of the court of appeal to cases where the judge has acted on some erroneous principle of law."

Another case in which the discretionary judgment of a trial judge was restored was Mace v. Murray (1955) 92 CLR 370. It concerned dispensing with the consent by a natural mother to the adoption of her child. At p 378, Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ. said as to the principles to be applied:

"The order of the learned primary judge was made in the exercise of a discretionary judgment; and it has been repeatedly laid down by this Court, following decisions of the highest authority in England, that in such a case a court of appeal is not justified in interfering with the decision appealed from unless it reaches a clear conclusion that by reason of some error, whether of fact or of law, the primary judge not only has taken a view different from that which the judges of the court of appeal would have taken if they had been in his place, but has failed properly to exercise the discretion committed to him: House v. R. (1936) 55 CLR 499 at 504, 505; Lovell v. Lovell (1950) 81 CLR 513 at 518, 520, 526, 528, 532-4; Pearlow v. Pearlow (1953) 90 CLR 70 at 76, 77; Paterson v. Paterson (1953) 89 CLR 212 at 218-24."

Gronow v. Gronow (1979) 144 CLR 513 was a case in which an order by the trial judge awarding custody of a child to the father was restored by a unanimous decision of the High Court. At pp 519-520, Stephen J. said:

"The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all."

See also Australian Coal and Shale Employees' Federation and Anor v. The Commonwealth and Anor (1953) 94 CLR 621 at 627.

This Court has consistently applied the stated principles in the exercise of its jurisdiction pursuant to s.24(1) of the Federal Court of Australia Act 1976. (See, for example, Philip Morris v. Brown (1980) 31 ALR 232.) Such appeals are full appeals on fact and law (s.28(1)).
Adopting the words of Northrop J. in Philip Morris v. Brown, supra, at p 253 the present appellant bears a heavy onus in seeking to disturb an order made in the exercise of a discretionary power. The appellant has to establish that the exercise of discretion has miscarried by reason of an identifiable error or because the result is unreasonable or so plainly wrong or unjust that there has been a failure to exercise it (Gronow v. Gronow, supra, and Australian Broadcasting Commission v. Parish (1980) 29 ALR 228; 3ATPR 42193 per Bowen CJ at 42195 and Deane J. at 42215).
Grounds of appeal
The submission had been made to the trial judge that the objectors did not fall within the description of adjoining occupants as referred to by the Full Court in Morpath and that the phrase meant occupants in the vicinity or area of the proposed building who are concerned about the impact of the building on them in and about the use of their premises. In rejecting that submission, the trial judge said that that construction would be unduly restrictive and that he could not see why residents within a district who can show that their amenities will be affected by the erection of a new building may not properly be described as "local occupants".
The submission to this Court was that his Honour was wrong in that construction of the Morpath test (see the passage in Beaumont J.'s judgment set out above) and that "local occupants" was equivalent to adjoining owners, or at least owners in the nearby vicinity, whose enjoyment of their premises could be adversely physically affected by the building and its use. The evidence established that the objectors, McNamara, Harrison and Moore lived something over one kilometre away and Wensing lived 10 kilometres away.
The submission was supported by reference to s.11A(8)(b) which provides for conditions to be imposed, where appropriate, whether as to compensation or otherwise. The submission was that s.11A(8)(b) clearly contemplates physical proximity of the local owners and the site of the building and to read it to include owners in any district in the Australian Capital Territory would be absurd.
It was further submitted that a covenant limiting the purpose for which land under the City Area Leases Act might be used is in the nature of a restrictive covenant, which is for the protection of persons who may be adversely affected by the use in a direct and relevant way. The purpose of the covenant is not to protect the public at large in relation to the development of the central business district as a whole, which may lead to traffic congestion, general pollution, general noise, general parking problems or transport delays to commuters and the like. These, so the argument ran, are problems which flow from the existence and growth of a central business district and cannot in any relevant way be seen to flow from the use of the proposed building.
It was agreed that, if his Honour was correct, the consequence would be that any variation which increases employment in Civic must be refused because it will increase the perceived problems and all similar variations should be frozen and the land sterilized until the infrastructure is in place to meet these problems.
In my opinion, the interests to be considered are not limited to those of occupants of land adjoining or in close or reasonable proximity to the subject land. There is nothing in the judgments in Morpath to support such a restricted approach. I am of the opinion that his Honour was correct in concluding that the interests of residents within a district who can show that their amenities will be affected by the erection of a new building may properly be described as local occupants and come within the Morpath test. However, the arguments advanced do have some force. The further objecting residents are from the proposed building, the less impact the building can have upon their amenities. It is a question of what weight is to be given to that impact, assuming such residents not in close proximity can show some effect upon their amenities.
It does not appear that his Honour has addressed the specific impact of the particular development on the reasonable use and enjoyment of owners in and about their land and their amenities such as loss of privacy, loss of views, visual impact, noise from the activity such as noise of airconditioning, odours, loss of light, wind effects, overshadowing and the like. His Honour was not called upon to do so, as none of the objectors who had been given leave to object made any case of such amenities being affected. There were no objections from adjoining or nearby owners. The objectors' evidence largely concerned the impact of an indirect kind, such as, general street parking and traffic movements, the impact the development would be likely to have on the Canberra community as a whole and the amenities of that whole community. After the evidence had closed the merits of the current plan, namely the Civic Centre Canberra Policy Plan January 1989, were compared with those of the 1984 plan.
Whilst it was appropriate to have regard to those generalised effects raised by the objectors, the weight to be attached to their objections on those grounds ought, in my opinion, to have been far less than was attributed by the trial judge. In accordance with established principles, however, this Court should be slow to interfere with the exercise of the discretion on the ground of different opinion on evidentiary weight.
It was further submitted on behalf of the appellant and the Minister that s.11A does not invest the Supreme Court with the functions of a planning authority. The Court does not have jurisdiction under s.11A to exercise the planning functions and powers of the NCDC. It is not the function of the Court to carry out the planning, construction and development of Canberra whether as the National Capital or otherwise. The Court does not have the expertise, information or familiarity with private and public sector interests to decide on the proper planning and framework for the National Capital. It is not the role of the Court to decide, for example, which competing representations after public exhibition are to be accepted.
In support of that submission the appellant relied upon the following passage in Kent v. Minister for Works (1973) 2 ACTR 1 at 9.8 per Smithers J.:

"It appears to me to be incompatible with the notion of conferring on a designated authority the functions of undertaking and carrying out the planning development and construction of the city as the National Capital that other bodies may also so plan develop and construct. I am of opinion therefore that, in conferring these functions upon the NCDC, Parliament was conferring them upon the NCDC to the exclusion of other bodies. It is an inevitable consequence of this that the Act impliedly forbids other authorities to undertake and carry out the functions conferred on the NCDC."

That passage was cited by Neaves J. in Morpath (FCR at p 333; ALR p 129-130). He added that the Supreme Court may only approve a varied purpose clause which is consistent with a policy plan in force.

Beaumont J. said in the passage in Morpath quoted above (FCR at p 343; ALR at p 140):

"Ordinarily, town planning considerations will be prominent in any such inquiry. Of course, the Court is not a planning authority. But this is not to say that in the exercise of a judicial discretion the Court should disregard town planning considerations. On the contrary any consideration of the public interest requires that significant weight be given to the current plans of the Commission as the public body charged with that responsibility."

Later he said (FCR at p 344; ALR at p 141):

"It is one thing to say that the court should take into account as a material, indeed powerful, consideration, the Commission's plans for the area. It is a different thing to say that the Commission's views, even if they are current, must be determinative of all the questions, jurisdictional and discretionary, which arise under s 11A. The Commission's policies lay down the general rule in the region or precinct. There remains the question, to be determined in the exercise of the judicial discretion conferred by s 11A(1), whether that general rule should be applied to a particular parcel of land at a particular time. Prima facie, the Commission's plan will be applicable, but the special or particular circumstances of the case may justify the court's departing from what the Commission has proposed."

Miles J., in his separate judgment, also agreed with the dicta of Smithers J. in Kent v. Minister for Works, supra, and went on to say:

"It is not part of the function of the Supreme Court to carry out the planning, construction and development of Canberra whether as the National Capital or otherwise. That is not to say, however, that the Supreme Court may not take town planning matters into consideration when deciding whether or not to approve a variation of a purposes clause under s.11A. . . . For the Supreme Court to make a decision conflicting with the plans and policy of the NCDC may, depending upon the circumstances, be a wrongful exercise of discretion, but the Supreme Court does not lack the power to exercise that discretion albeit wrongly."

Thus the Court was unanimous in Morpath about the weight to be accorded to the current plans of NCDC. They are to be given "significant weight" and taken into account as a "material, indeed powerful, consideration". They lay down "the general rule in the region or precinct".
It was submitted on behalf of the appellant and the Minister that the correct approach in accordance with the decision in Morpath is for the Supreme Court in the exercise of the discretion under s.11A of the City Area Leases Act 1936:

(a) to ascertain the existing position in relevant respects eg. traffic, parking, noise, air pollution etc.

(b) to determine the effect of the proposed development on relevant matters so as to be able to predict the cumulative or resultant position after the proposed development is completed and occupied.

(c) to ascertain whether or not that cumulative or resultant position contravenes any relevant planning instruments eg. the Civic Centre Canberra Policy Plan, January 1989 (Exhibit G).

(d) if a planning instrument would be so contravened if the proposed development went ahead the application should be refused.

(e) if the proposed development would not contravene, but would produce a situation which is consistent with all relevant planning instruments, then "significant weight" should be given to that fact and the court should prima facie, grant its consent to the application whilst, perhaps, maintaining a residual discretion to refuse it in special circumstances."

In my opinion that approach to the exercise of the discretion is correct. In the present case the principal relevant planning instrument for Civic was the Civic Centre Canberra Policy Plan January 1989. In para 1.2 it stated that it was the final policy plan for Civic and prevailed over the 1984 Civic Policy and Development Plan. It did not purport to affect the 1984 Metropolitan Plan.
The application to vary the purposes clauses of the subject blocks would not have produced any contravention of the relevant planning instrument, the Civic Centre Canberra Policy Plan January 1989, and was supported by the NCDC. The basis of that support was examined and rejected by the trial judge.
In considering and basing his decision on what he regarded as the longer term interests of the community as a whole, his Honour rejected the reasons given by Commissioner Latham in evidence for the refusal of NCDC to support the appellant's original application to vary the purposes clause and the NCDC's subsequent reversal of that stance.
Latham gave evidence on behalf of the Minister. He was at the relevant time the Commissioner of the NCDC. In his affidavit sworn 2 November 1988 he described himself as an architect and town planner. Details of his educational qualifications and experience were annexed to the affidavit. There was no contention before his Honour that Latham was not a fully qualified expert architect and town planner.
In his affidavit he set out the history of Concrete Constructions' negotiations with NCDC for support of its proposal to apply for a variation of the lease purpose for the subject blocks. Concrete Constructions' initial proposal was refused by NCDC. Latham issued a press release at the time explaining NCDC's refusal to support a proposal to construct an office building containing 17,600 square metres of office space. The press release was in evidence as an annexure to Latham's affidavit.
It is necessary to set out in greater detail than in his Honour's judgment the contents of the press release. They contain qualifications to the refusal which are relevant to the subsequent decision reversal by NCDC and its ultimate support for the proposal to construct a smaller office building having 14,000 square metres of office space.

"NCDC REFUSES CANBERRA TIMES SITE REDEVELOPMENT PROPOSAL The NCDC will not support the Concrete Constructions proposal for the redevelopment of the former Canberra Times site in Mort Street, Braddon. NCDC Commissioner Malcolm Latham said that Lewis Development Pty Ltd a subsidiary of Concrete Constructions had put forward a redevelopment proposal involving the construction of 17,600 square metres of office space on the Canberra Times site. Mr Latham said the NCDC would not support the necessary application to the Supreme Court for a change to the lease purpose of the land to allow the redevelopment to proceed.

'It is clearly not in the public interest at this time to have yet another very large office development in Civic. It would also be contrary to undertakings required of the Commission by the Parliamentary Joint Committee on the ACT', Mr Latham said. He said "A large single occupancy would be necessary for the redevelopment to be viable at the size proposed, and Commonwealth tenants had been actively sought to occupy the proposed building'. Mr Latham said there was more than enough Commonwealth office space in Civic now, and the need is to get office space and office jobs into Tuggeranong and Belconnen, not Civic, in accordance with the Commission's metropolitan objectives. 'In March this year the Joint Committee on the ACT, reporting on Variations to the City Plan to allow development on Section 38, City, to proceed, required an undertaking between the NCDC and the appropriate government agencies that no more government offices be located in Civic until the situation in Civic had been thoroughly reviewed. This has been an influential factor in our consideration of the development proposal' the Commissioner said. The Commission had also proposed encouraging the location of offices in Tuggeranong and Belconnen by restricting lease purpose clauses to prevent Commonwealth agencies occupying further office space in Civic. However it had not been possible to secure agreement to this course of action. 'Much work has been done and is being done to increase parking supply in Civic and improve public transport, but more remains to be done to overcome the lag in this provision. A very large office development such as that proposed for the Canberra Times site will erode the efforts now under way to bring parking, transport and development back into balance', Mr Latham said. 'The developer has requested a decision on this project now and is entitled to a decision. We have decided not to support an application to the Supreme Court for the change in lease purpose'. A revised Civic Centre Plan containing new guidelines is about to be published for community comment. Between now and when the new Plan is finally adopted applications for development in Civic Centre will be decided on their merits. The Commission's decision not to support the Lewis Development application reflects an assessment of the facts surrounding the current stage of development of Civic Centre. 'As is obvious from this decision large scale proposals which are clearly intended for major Commonwealth office occupancy in Civic will not be supported by the Commission' Mr Latham said. 'Lewis Development Pty Ltd is free to approach the Commission concerning the form, amount and type of redevelopment which might be acceptable on this site. However a major office development at this time is ruled out', Mr Latham said."

On 14 December 1987 Latham advised the relevant Minister of NCDC's refusal to support Concrete Constructions' development application in its present form. In his Ministerial submission Latham referred to the continued negotiations between NCDC and Concrete Constructions which might form the basis of an application to the Court for a change of the lease purpose but went on to refer to the fact that NCDC would not make any decision until the outcome of the Government's decisions relating to the timing and location of office space in Canberra. He referred to the fact that both NCDC and the Department of Local Government and Administrative Services were seeking to decentralise Commonwealth office employment away from Civic, especially into the Belconnen and Tuggeranong Town Centres.
In April 1988 Concrete Constructions again sought NCDC support for the proposed change of land use to construct 17,600 square metres of office space on the subject blocks. As a result of negotiations NCDC agreed to support a smaller development, totalling 16,000 square metres with an office component not exceeding 14,000 square metres, and basement parking for 160 cars. Concrete Constructions was formally advised of this change of position by letter dated 2 June 1988.
The reasons for the reversal of NCDC's position were closely detailed in Latham's evidence. Most of them are based upon town planning considerations. It is necessary to examine the evidence and his Honour's treatment of it with some care.
The first reason for the refusal related to the proposed development of some 30,000 square metres of Commonwealth office space in the Tuggeranong Town Centre. In his affidavit Latham said:

"In May 1988 it became apparent that a pre-commitment by the Commonwealth for development of some 30,000 square metres of Commonwealth office space would be achieved in the Tuggeranong Town Centre. Further, leases had been granted to two private developers for the development of over 30,000 square metres of office space in the Belconnen Town Centre."

It is to be noted that in the press release set out above, he had detailed the prior uncertainty about the Commonwealth's strategy on Commonwealth office space in Canberra as a reason for refusal.

His Honour dealt with that evidence in the following way. He said that he was unable to see that the fact that there was potential Commonwealth office space in other areas warranted the change of attitude by NCDC. He said:

"I am unable to see that the fact that there was potential Commonwealth office space in other areas warranted the change of attitude by the Commission. The question must surely have been not whether Commonwealth office space should be available in other areas, thus drawing off, as it were, the need for Commonwealth office space in Civic, but whether the proposed building which had until that point been seen as something which would erode the efforts then underway to bring parking, transport and development back into balance, had in some fashion lost that potential and become acceptable from a planning point of view."

In my view that criticism of Latham's first reason for the refusal of the previous decision misconceives the significance of the Commonwealth's commitment to develop office accommodation away from Civic Centre. What Latham was saying at the time of the initial refusal was that NCDC would not agree to the application until the outcome of the Government's decision relating to the timing and location of office space in Canberra. Both NCDC and the Department of Local Government and Administrative Services were seeking to decentralise Commonwealth office employment away from Civic, especially into the Belconnen and Tuggeranong Town Centres. Latham said so not only in the press release but in the Ministerial submission which was annexure G to his affidavit. When the reversal decision was made the Commonwealth's strategy on office space location was known. It was decided in accordance with town planning considerations to approve a smaller building for office and other uses.
The second reason was that moves were afoot to increase the supply of carparking in Civic by public works then planned and later implemented for that reason. Latham referred to those developments in his affidavit and in his evidence. In his affidavit he said:

"In 1987 the Commission undertook a substantial program for the provision of carparking spaces in Civic which resulted in a net addition of some 3,300 spaces in Civic."

In his evidence he referred to the increase in supply of carparking in Civic. In regard to that evidence his Honour said that he regarded the argument as "illogical". He went on to say:

"the Commission had undertaken and begun before the end of 1987 to provide up to 3,300 additional carparking spaces in Civic and by June they had been completed. Indeed, as appears from Mr Latham's press release of 20 July 1987, the planning had taken place as far back as that date with an expected finishing date of 31 December 1987 for the 3,300 spaces. They would certainly have been completed long before a building might have been erected on the land had the Ministerial submission of 6 November 1987 supported rather than opposed the redevelopment."

Here again, his Honour seems to have misconceived the significance of parking from a town planning point of view in the initial consideration of the application to develop. In the Ministerial submission of 6 November 1987 referred to by the trial judge, Latham had reported to the Minister that:

"The Joint Committee on the ACT has required that no more Government offices be located in Civic until the situation has been thoroughly reviewed and there is urgent need to locate office space and provide office jobs in Tuggeranong and Belconnen. Against this background and the need to continue efforts to bring parking, transport and development in Civic back into balance, the Commission has decided the development should not proceed."

It is quite clear that at the initial stage of refusal NCDC considered parking in the context of no more Government offices in Civic until the situation had been thoroughly reviewed, coupled with transport and development in Civic. The decision to refuse approval, the reconsideration of the relevant factors in the light of up-to-date information and the decision to approve are plainly an exercise in town planning.
The third reason advanced by Latham for the refusal of the decision, as dealt with in his affidavit and in his evidence, was that by June 1988 it was clear to NCDC that the rate of employment growth within Civic was going to be significantly lower than forecasts had indicated. Latham regarded this as a key point in the proceedings. The survey carried out in May/June 1988 revealed that employment in Civic at that time was 23,600. The forecast that had been used by the Commission and others had been based on an assumed total employment by that same date of about 28,000. He advanced a number of reasons why that forecast had not been reached, namely that the space was not being fully occupied and was being set aside for possible future occupation; office space occupancy in yield terms was falling from one worker per 16 square metres, which had been a ratio commonly used by NCDC and others prior to June 1988, to one worker per 21 square metres, and the trend was continuing to rise. Thus, the numbers of workers per floor space were tending to decline which Latham perceived as a long term trend. He further advanced that computer technology and other forms of office technology were taking up more floor space. He thought that that trend would throw into significant doubt whether a total of 35,000 would ever in fact be reached.
In dealing with that reason, his Honour said:

"It seems to me that it (the third reason) ignores the fact that buildings capable of accommodating 32,000 office workers were at the date of the 1989 plan either approved, in the process of construction, or complete. And again, as I have earlier indicated, commercial pressures would have seen to it, I think, that the level of employment in Civic would have risen rapidly beyond the 23,600 and come close to the figure of 32,000."

In my opinion, this treatment of Latham's evidence gives scant regard to the fact that a survey in May/June 1988 had shown that the level of employment was 23,600, a figure accepted by the objector Harrison but challenged by the objector McNamara, and scant regard for Latham's reasons for the figure and forecasts based upon sound town planning considerations.
The next reason given by Latham in evidence was the reduction in office floor space from 17,600 to 14,000 square metres. He said that from NCDC's point of view it was seen as helpful that there be a reduced amount of office floor space rather than in increased amount because the aim was not so much to achieve a lessening of floor space but to achieve some increased diversity of uses within Civic and reductions in one component to the extent that they assisted in creating a market for others would be helpful.
His Honour rejected that reason, regarding the reduction of office space to 14,000 square metres as being still "a very large office development". He referred to the increased diversity of uses within Civic as supporting this reason for reversal and said:

"It seems to me however that the essential question to be considered is not whether there would be a diversity of uses within Civic but whether the very large office development which had added to it a component of shops and other services ought to have been supported."

In other words, his Honour rejects the town planning principles embraced in Latham's fourth reason and substitutes a view of his own as to whether diversity of uses is a relevant factor.

The fifth reason for reversal was related to the improved carparking arrangements in Civic which were in place by June 1988. His Honour in effect dismissed the improved carparking as a factor, preferring to rely upon the evidence of the objector Harrison in respect of his survey of parking in nearby suburban streets. His Honour accepted that evidence and said that 1,496 cars parked at the kerbside in nearby suburbs represented a very substantial number of drivers who had to be persuaded into using the relatively expensive carparking spaces provided as a result of NCDC's initiatives in 1987/88.
Latham then advanced some other facts as reasons for the reversal, which he himself recognised as not strictly town planning arguments at all but falling within the general environment of considerations which NCDC was bound to take into account. They included lobbying from private sector organisations. His Honour dealt with that evidence by saying that although such pressure seems to have been undoubtedly legitimate, it is hardly a reason for NCDC to change its mind "so suddenly and completely". Of course, Latham had not said that it was a reason. He had merely advanced that factor as a consideration which NCDC was bound to take into account. Nor was the change of mind sudden or complete. The grounds for initial refusal foreshadowed further consideration when other factors became known.
Lastly, Latham referred to the seventh reason, namely the state of the building industry as a component of the economy. He referred to the fact that the new Parliament House had been completed, the expectation that the workforce would decline and likewise building industry expenditure. His Honour said that he did not think that that was a legitimate factor "although it might well be a matter for self-congratulation if, as an incident to a valid change of use, an improvement in the economy were effected".
Thus his Honour rejected every one of the reasons advanced by the Commissioner of NCDC for reversing the decision not to support the development proposal, most of which were based upon town planning principles not shown to be erroneous or otherwise irrelevant.
His Honour went on to note that traffic considerations had formed no part of NCDC's change of mind. He said traffic in Civic had already become a serious problem and would become an even bigger problem when the town centre of Gunghalin was developed unless some expensive roadworks can solve it. He noted also that traffic and public transport figures took no account of University or TAFE students whose numbers, at least in term time, would exacerbate the problems. His Honour was not correct in concluding that traffic considerations formed no part of the decision. It was fundamental to the approval that the increase in employment figures caused by the new development would still fall within the tolerance ceiling of the transport system.
I am of the opinion that in rejecting most of Latham's evidence his Honour failed to take account of relevant facts, namely town planning considerations, and failed to give proper weight to those relevant facts which he did consider, so that his judgment should be reviewed.
Finally, it was submitted by the appellant and the Minister that the trial judge had made an error of fact in relation to the likely numbers of persons occupying space in the Civic area and the likely impact of the presence of those persons on public transport facilities and carparking spaces.

The 1984 Metropolitan Plan detailed the employment capacity of Civic based on the capacity of the road network. It stated that the existing road network could cope with a capacity of 27,000. It was further stated in that policy plan that Civic's employment was expected to grow to between 25,000 and 27,000 and beyond that level the transport costs in terms of congestion, road capacity and carparking, would increase substantially. The 1989 Civic Centre Canberra Plan January stated that a recent survey indicated that the present Civic employment level was 23,500, that future employment growth was expected to be slower than previously predicted and was unlikely to reach 35,000 until the year 2000. It stated that the capacity of existing buildings together with buildings approved or under construction, was about 32,000 and went on to say: "The physical form of Civic at the 35,000 employment level is therefore virtually apparent now".
The trial judge adopted those statements and concluded that the proposed development would accommodate 700 office workers. He then said, "but that figure of 700 has to be added to the 32,000 employment level, already according to the 1989 plan, virtually in place.
The submission was that his Honour was in error in adopting the 32,000 capacity level as an actual level of employment in Civic and failing to give proper weight to the survey evidence that the actual employment figure according to the 1989 Plan as 23,600. In other words, he had confused actual workforce population with the capacity which the buildings in Civic had to house that workforce.
I have set out above the evidence of Commissioner Latham in relation to the reasons for the reversal decision and the fact that it became apparent in about May 1988 that the rate of employment growth in Civic was slower than indicated by the figures previously released. The survey to which Latham referred had been carried out by Daniel Roland Steiner, whose evidence was reviewed by the trial judge. His evidence was to the effect that a detailed survey of employment figures in Civic in May/June 1988 showed an employment level of 23,600. Steiner detailed the reasons for the discrepancy between the actual level of employment found in 1988 and the previous forecast of up to 28,000-29,000 by 1988/99. He said that the survey results and analysis of overall employment growth and distributions in the ACT led to a re-appraisal of Civic's employment forecasts, which suggested that Civic's workforce was likely to reach 28,000-29,000 in 1991 and 35,000 in the late 1990s.
The following passage in his Honour's judgment is the subject of challenge by the appellant and the Minister:

"It seems to me however that to make such a forecast ignores the fact that, as the 1989 Plan shows, buildings already in existence, approved or under construction, have already the capacity for an employment level of 32,000. I do not think it likely that all those buildings when completed, and no doubt their completion is not far distant, will remain substantially under-utilised as the forecast would seem to indicate. Commercial pressures would not, in my opinion, permit this to happen."

It is apparent that the trial judge did not accept Steiner's forecasts about employment levels in Civic, although it can be assumed that he did accept the survey result of 23,600 in May/June 1988.
It was submitted that his Honour was not entitled to reject Steiner's forecasts and if he had done so a proper assessment of the impact of the proposed development was:

(1) the 27,000 employment ceiling set out in the 1984 Metropolitan Plan was superseded by the figures in the 1989 Civic Policy Plan;

(2) the 1989 Plan permits a ceiling of 37,000 in 1991, when the proposed development will be completed, before any traffic problems will arise;

(3) the actual employment level in 1991 will be 28,000;

(4) the proposed development will add 700, giving a total of 28,700; and

(5) 28,700 is well below the tolerance figure of 37,000 and therefore no traffic problems should arise.

In my opinion the trial judge should have accepted the evidence of Latham and Steiner in respect of the actual employment figure in May/June 1988 at 23,600 and their respective forecasts as to the size of the workforce in the future based upon their assessments of what the trends demonstrate. It was, after all, fundamental to the approval decision that the impact of the development upon the infrastructure of Civic be taken into account. That impact embraced all the factors that were considered by Latham with such assistance as was available from an actual survey and professional forecasts. The evidence should have been accepted in the absence of any conflicting evidence. The only conflicting evidence, if it could be so described, is that contained in the 1984 Metropolitan Plan which had become less relevant having regard to the May/June 1988 survey.
The impact of the development from a traffic point of view was referred to in the evidence of David John Singleton, a transport engineer called on behalf of Concrete Constructions. His qualifications as an expert were detailed in evidence and it was not suggested that he was not fully qualified to express the opinions set out in his report and in his evidence.
In his report dated August 1988 he expressed the opinion: "In summary, on the ground of traffic impact or parking demand, there appears to be no significant reason why this development should not proceed". His conclusions were set out at the end of his report and are quoted in his Honour's judgment, viz:

"In general it may reasonably be concluded that: . development of the Site will have an impact on Mort Street but the effect on pedestrians and vehicle traffic will be minimal; . the intersections of Mort Street with Bunda Street and Cooyong Street will continue to operate at a satisfactory level of service; . the traffic generated by the proposed development has only a marginal impact on the Northbourne/ Cooyong/Barry Drive intersection operation, however this intersection requires improved operations to accommodate overall increases in traffic;

. both Northbourne Ave intersections will operate with a satisfactor()y level of service when drivers make optimum use of available right turn capacity;

. reductions in through traffic on Northbourne Ave and Barry Drive, as outlined in the NCDC draft plan (1) (are) desirable to provide increased capacity for Civic origin/destination traffic; . the Site is well located for public transport use; . in the short term the development of the Site may marginally increase demand for parking on street in Braddon;

. in the future, overspill demand for short and long term parking generated by the Site should be largely accommodated by structured carparks on Section 56."

His Honour did not accept that evidence and said that it seemed to him that the traffic flow in Civic will rapidly deteriorate and that Singleton's conclusions are too optimistic. He preferred the evidence of the objectors and photographs tendered in their case. The objectors' evidence and that of Ian Gollan Cooper of Action Bus Services tended to demonstrate the current traffic problems in Civic rather than the impact of the proposed development upon traffic conditions. There was no evidence from the objectors contrary to the evidence of Singleton, which was directed to the fundamental consideration of the impact of the development.
Notwithstanding my view that his Honour should have accepted Singleton's evidence as it was not really in conflict with the evidence of the objectors and Cooper, I think it was open to his Honour to decline to accept Singleton's evidence in the circumstances.
It was further submitted on behalf of the Minister that, when his Honour came to deal with the effect of the evidence before him, he approached the matter upon the basis of what he believed would be the resultant or cumulative position if the proposed development and other unspecified developments went ahead. There is much force in this submission. His Honour did say that if he were to grant the application he would be compounding a situation where problems of great magnitude come into existence as a result of developments "like those proposed". He also delved into the cost of expenditure on transport to service a growth in the workforce from 27,000 to 35,000, an increase in the workforce of 8,000, whereas the proposed development involved an increase of 700. In my opinion that was an error in approach.
In conclusion, I would simply add that, however it is expressed, the basic reason for dismissing the application appears to be that the trial judge had decided as a primary fact that the existing transport and parking infrastructure was already not coping and the approval of a development generating another 700 workers in the Civic area would only exacerbate an already serious problem. He effectively determined that in that state of affairs no further office development in the Civic area would be approved until the regional roads of the ACT and its public transport system underwent a significant improvement, or at least until there was the likelihood of the appropriation of sufficient funds for these purposes.
Such broad general considerations do not come within the exercise of discretion conferred upon the Supreme Court by s.11A of the Act. That sort of approach demonstrates an assumption of the role of town planner.
In my opinion the appeal should be allowed.
The question is whether to remit the matter to the Supreme Court for rehearing or to exercise the jurisdiction and grant the application. On behalf of the appellant it was submitted that the matter should not be further delayed and, there being no dispute about jurisdictional matters, the order as sought in the amended Notice of Motion dated 10 June 1988 be made. On the other hand, it was submitted on behalf of the second and third objectors that the matter should be remitted as the relevant considerations are now out of date.
In my view the need to bring finality to litigation should prevail and the order as asked should be granted.

JUDGE2

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory (Kelly J.) in which his Honour dismissed an application made by the appellant ("Concrete Constructions") pursuant to s. 11A of the City Area Leases Act 1936. Concrete Constructions is the lessee from the Commonwealth of Australia of Blocks 1 and 2 of Section 35 Division of City in the Australian Capital Territory. The land is situated on the corner of Cooyong and Mort Streets, Civic. The purpose clause in the lease of Block 1 provides 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 subsidiary thereto. The purpose clause in the lease of Block 2 provides that it 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.

For many years the land, that is Blocks 1 and 2, were used in connection with the publication of The Canberra Times. That use ceased when the publishers opened new premises in Fyshwick. Since then the land and the building on it have been vacant. The land was purchased by Concrete Constructions for redevelopment as a commercial office block. That use is not permitted and the application made to the Supreme Court was to seek the variation of the purpose clauses to enable the development to take place.
The Legislation
The relevant provisions of s.11A of the Act are as follows:-

"(1) Notwithstanding anything contained in this Act, the Supreme Court of the Australian Capital Territory may, subject to this section, on the application of the lessee (in this section referred to as the 'application for variation'), vary any provision, covenant or condition of a lease in relation to the purpose for which the land subject to the lease may be used.

(2) No such variation shall be made -

(a) unless the Court is satisfied that there are such circumstances existing as in the opinion of the Court make it desirable to vary the provision, covenant or condition in order that the reasonable user of the land should not be impeded; or

(b) if, not later than seven days before the day for hearing named in the notice of motion filed by the applicant in pursuance of this section, a certificate is filed by the Minister with the Registrar of the Court stating that, in his opinion, the variation sought would be repugnant to the principles for the time being governing the construction and development of the City of Canberra.

(3) An application for variation shall be made by motion supported by affidavit.

(4) The applicant shall file with the Registrar of the Court a notice of motion together with the affidavit in support and shall, at least thirty days before the day named in the notice for hearing the motion -

(a) serve a copy of the notice and affidavit on the Minister; and

(b) publish the notice in the Gazette and a newspaper circulating in the Territory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Any person who, within twenty-one days after the publication of the notice of motion in the Gazette -

(a) files with the Registrar of the Court notice of his intention to oppose the application for variation stating the grounds of his opposition; and

(b) serves on the applicant for variation a copy of such notice of intention, shall, with the leave of the Court, be entitled, either personally or by his counsel or solicitor, to be heard in opposition to the application for variation and to examine and cross-examine witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) An order of the Supreme Court under this section varying a provision, covenant or condition in a lease shall, in the first instance, be provisional only and is subject to -

(a) the condition (to be included in the provisional order) that if, in accordance with sub-section (9B) of this section, a premium is payable to the Commonwealth in respect of the variation, the premium will be paid to the Commonwealth by the lessee within the prescribed time; and

(b) such conditions, whether as to compensation to other persons or otherwise, as the Court thinks just and are included in the provisional order.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." It is unnecessary to refer to the provisions of s.9B.
4. Section 11A was the subject of recent consideration by this Court in Morpath Pty. Limited v. ACT. Youth Accommodation Group Inc. (1987) 16 FCR 325; 74 ALR 121. The Court was comprised of Fisher, Davies, Neaves, Beaumont and Miles JJ. All members of the Court reached a similar conclusion, but there is some difference in the reasoning of some of the judges. Fisher and Davies JJ. agreed in the judgment delivered by Beaumont J. I think it must follow that his reasoning, to the extent that it differed from the reasoning of Neaves and Miles JJ., prevailed so that it is to the judgment of Beaumont J. that regard should be had. Although there was some discussion during the argument about the implications of some of what his Honour said, there was no challenge to the correctness of it by any party and it should accordingly be followed. The relevant passages from his Honour's judgment are as follows (FCR pp 343-4; ALR pp 139-141):- "The structure of s.11A requires the court to proceed in two stages. The first stage is to inquire whether the grounds for jurisdiction described in s.11A(2) are satisfied. The court must be satisfied that it is desirable to vary the provision in order that the reasonable user of the land should not be impeded. As has been said, this inquiry will involve an inquiry into the town planning aspects of the proposed new user. Where, as here, the proposal accords with the Commission's (the National Capital Development Commission's) current plans for the land, it will ordinarily follow that what is proposed should be regarded as a reasonable use. If so, the grounds for jurisdiction in s.11A(2)(a) will be made out. Where the Commission has no current plan or where what is proposed does not conform with the Commission's plan, the question still remains for the court to decide whether the proposal is 'reasonable' in the sense previously explained. The next inquiry is whether a certificate of the kind described in s.11A(2)(b) has been filed. This is a simple question of fact as to the existence or not of the statutory certificate. It does not permit or require the court to embark upon an inquiry as to whether the proposal would be 'repugnant to the principles for the time being governing the construction and development of the City of Canberra'. Assuming the grounds for jurisdiction specified in s.11A(2) are made out positively in the case of para. (a) and negatively in the case of para. (b), the court then proceeds to the second stage, ie the question of the exercise of the wide statutory discretion conferred by s.11A(1). As has been said, this discretion should be exercised in the public interest, balancing society's interest in the fullest use of land against the interests of local occupants in their amenities. Ordinarily, town planning considerations will be prominent in any such inquiry. Of course, the court is not a planning authority. But this is not to say that in the exercise of a judicial discretion the court should disregard town planning considerations. On the contrary, any consideration of the public interest requires that significant weight be given to the current plans of the Commission as the public body charged with that responsibility. There is a clear distinction between, on the one hand, asking the court to act as a planning authority, and, on the other, entitling or requiring the court to take planning material into account in the exercise of its judicial functions under s.11A (see Preston and Newsom's Restrictive Covenants Affecting Freehold Land, 7th ed., at 212). Moreover, in balancing the public interest in the full use of land against the local interest in the amenities, it will be appropriate for the court to consider whether it is proper to permit the variation to proceed but upon the condition that compensation is paid to those injuriously affected (see s.11A(8)(b)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provided an objector can demonstrate an appropriate interest in the outcome of an application under s.11A(1), leave to oppose should generally be granted under s.11A(6). It should be no disqualification that the objector wishes to canvass the merits of the town planning proposed by the Commission. That will be a central question in the proceedings even if, ordinarily, the Commission's current proposals are to be given significant weight. It is, of course, a different question whether an objector has demonstrated a sufficient interest to be allowed in. But once allowed in, the objector is entitled to be heard in general opposition (see s.11A(6)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . It was also submitted by Morpath and by the Minister that the exercise of the court's jurisdiction under s.11A was subject to the actions of the Commission pursuant to its statute. It was said that the court could not exercise its jurisdiction so as to 'frustrate' the policies of the Commission. But no conflict between the exercise of the court's jurisdiction and the policies of the Commission need arise. The Commission's function is to plan the national capital. The court's function is to adjudicate, judicially and in accordance with the criteria specified in s.11A, upon an application to vary a restriction on user. They are distinct functions which need not and should not, collide. It is one thing to say that the court should take into account as a material, indeed powerful, consideration, the Commission's plans for the area. It is a different thing to say that the Commission's views, even if they are current, must be determinative of all the questions, jurisdictional and discretionary, which arise under s.11A. The Commission's policies lay down the general rule in the region or precinct. There remains the question, to be determined in the exercise of the judicial discretion conferred by s.11A(1), whether that general rule should be applied to a particular parcel of land at a particular time. Prima facie, the Commission's plan will be applicable, but the special or particular circumstances of the case may justify the court's departing from what the Commission has proposed."

In my opinion the application should, in the exercise of the discretion referred to above, be dismissed. There will be an order accordingly."

Role of this Court

The principles upon which an appellate court acts in a case such as this where the appeal is from the exercise of a statutory discretion are well established. The appellate court's role is not to re-examine the evidence which was before the primary judge and determine whether the court would have exercised the discretion in the same or a different way. The appellate court will interfere only if it is satisfied that the primary judge has acted on a wrong principle, has given weight to extraneous or irrelevant matters, has failed to take into account relevant considerations or has made a mistake as to the facts: House v. The King (1936) 55 CLR 499 at pp 504-5.
The issues in the appeal
The primary submission advanced by counsel on behalf of Concrete Constructions was that the primary judge, in exercising the discretion conferred by s.11A(1) of the City Area Leases Act, failed to act in accordance with the test said to have been adopted by a Full Court of this Court in Morpath Pty Limited v. ACT. Youth Accommodation Group Inc. (1987) 16 FCR 325. The test was said to have been adopted in the following passages (at pp 342 and 343 of the report) in the judgment of Beaumont J. with whose judgment Fisher and Davies JJ. agreed:

"But, even if it be assumed that the grounds for jurisdiction in s.11A(2)(a) are established, there remains the question whether the discretion conferred by s.11A(1) should be exercised in Morpath's favour. That discretion is conferred in unlimited terms. Such a discretion is unconfined except insofar as it is affected by limitations to be derived from the context and scope and purpose of the Ordinance: see R. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50. It is evident from the context, scope and purpose of the Ordinance and s.11A in particular, that the discretion vested in the Court under s.11A is to be exercised in the public interest having due regard to the interests of adjoining occupants in the local amenities. Lord Gardiner's description of the function of the Lands Tribunal is apposite here . . . 'the task of holding the balance between the interest of the adjoining landowner in the amenities and the interest of society in the full use of the land must be left to the Tribunal': HL Deb, ser 5, Vol 301, Col 586 cited by Polden (supra) at 207. . . . .

Assuming the grounds for jurisdiction specified in s.11A(2) are made out positively, in the case of par (a) and negatively in the case of para

(b), the Court then proceeds to the second stage, that is, the question of the exercise of the wide statutory discretion conferred by s.11A(1). As has been said, this discretion should be exercised in the public interest, balancing society's interest in the fullest use of land against the interests of local occupants in their amenities."

Those passages were said to have established that, in exercising the discretion, the Supreme Court is limited to considering the impact of the proposed development upon the amenities of those who answer the description of adjoining or local occupants. The persons who were to be regarded as falling within the class of adjoining or local occupants were variously described in the course of argument but none of the descriptions embraced persons other than those who had an interest in land that adjoined, or was situated in close, or reasonable, proximity to, the land the subject of the lease to be varied. It was also submitted that what was to be considered was the specific impact of the particular development on the reasonable use and enjoyment by such occupants in and about their land in relation to such matters as loss of privacy, loss of views, visual impact, noise from the activity such as noise of air conditioning, odours, loss of light, wind effects, overshadowing and the like.
Two matters, in particular, were said to support this view of the statutory provision. A covenant limiting the purpose for which the land the subject of a lease under the City Area Leases Act might be used was said to be in the nature of a restrictive covenant on the use of the particular parcel of land, the covenant being for the protection of persons who might be adversely affected in a direct and relevant way by the use to which the land might be put. The purpose of the covenant, so it was argued, was not to protect the public at large in relation, for example, to the development as a whole of the central business district of the City of Canberra notwithstanding that that development may lead, by its very nature, to such problems as traffic congestion, air pollution, noise, difficulties in parking, transport delays to commuters and the like.
That the interests to be considered are limited to those of the occupants of land adjoining, or in close, or reasonable, proximity to, the subject land was said to be reinforced by a consideration of the provision contained in s.11A(8)(b) of the City Area Leases Act which permits the Supreme Court, if it considers it just to do so, to require, as a condition of approving a variation, that the applicant for the variation pay compensation to those adversely affected by the approval. It was asserted that the presence of that provision was consistent only with an intention on the part of the legislature to limit the adverse effects which may be considered to those which have a direct nexus, in terms of locality, with the subject land. It cannot have been contemplated, so the argument ran, that compensation could be ordered in other circumstances and this, it was said, threw light on the kind of objection that might relevantly be taken into account.
It was said to be demonstrable on the evidence before the Supreme Court that, if society's interest in the fullest use of the subject land was to be realised, the site should be used for an office building. It was further submitted that the public interest in having the land so developed was not outweighed by any resultant adverse effects upon the amenities of any occupant of land within the immediate or near vicinity. None of the objectors was said to answer that description and the matters upon which they relied were said to be unrelated to such local amenities and to raise issues of wider import outside the scope of the statutory discretion.
The primary judge clearly rejected any such limitations as those contended for by Concrete Constructions upon the scope of the matters relevant to be considered in exercising the discretion under s.11A(1). In this his Honour was, in my opinion, clearly correct. The passages relied upon in the judgment of Beaumont J. in Morpath Pty Limited v. ACT. Youth Accommodation Group Inc. (supra) identify relevant and important considerations which are to be taken into account in determining how the discretion under s.11A(1) is to be exercised, considerations which may, in some cases, be decisive. I am unable, however, to read the passages cited as providing an exhaustive statement of the matters relevant to the exercise of that discretion. The overriding consideration, as Beaumont J. clearly recognised, is whether, in all the circumstances, it is in the public interest that the variation sought be approved. Given the width of the language in which the discretion is conferred, I am unable to discern, from a consideration of the context and the scope and purpose of the City Area Leases Act, the limitations on the discretion which the argument propounds. In particular, I am unable to regard s.11A(8)(b) as providing any support for the argument.
It was also submitted for Concrete Constructions and for the Minister that the primary judge did not confine his consideration, as it was said he should have done, to the impact of the proposed building upon the amenities of the area but determined the matter upon wider and more generalised grounds which amounted to setting planning parameters. The role of the Supreme Court, so it was submitted, was not to determine what planning principles should govern the development of Civic Centre, Canberra but to apply to the circumstances of the particular case the principles that have been established by the appropriate planning authority, in the instant case the Commission. To regard the Court as having a wider role would be inconsistent, as it was said, with the intention of the legislature to vest in the Supreme Court a judicial discretion. In reaching his conclusion upon the application before him, the primary judge had, it was asserted, travelled beyond the Court's proper role and had determined the application by reference to such broad planning principles as his Honour considered ought to apply. Those principles were said to be at variance with those adopted by the Commission in the Civic Centre Canberra - Policy Plan (January 1989). The submission was summarised by saying that his Honour had decided for himself matters of high government policy in relation to the planning of Civic Centre rather than applying the 1989 Plan to the facts of the particular case. The matters to which his Honour gave decisive weight were described as being matters which flowed from the existence and growth of the central business district of Canberra and not matters which could in any relevant way be said to flow from the proposed use of the building envisaged for the subject site.
Counsel for the Minister summarised what he advocated as being the correct approach to the exercise of the discretion under s.11A(1) in the following way. It was, it was submitted, for the Supreme Court to ascertain the existing position in relation to such matters as traffic, parking, noise and air pollution and, having done so, to determine the effect of the proposed development upon those matters so as to be able to predict the cumulative or resultant position after the proposed building was completed and occupied. It was then for the Court to determine whether that cumulative or resultant position would contravene any relevant planning instrument, in the present case the Civic Centre Canberra Policy Plan (January 1989). If the Court determined that a relevant planning instrument would be contravened, the application should be refused. If, however, the Court determined that the proposed development would not contravene, but would be consistent with, the relevant planning instruments, the Court should grant the application subject, perhaps, so it was said, to a residual discretion to refuse it in special circumstances. It was submitted that the primary judge had failed to approach the matter in this way and, as an error of principle in the exercise of the discretion was thus disclosed, the judgment should be set aside.
In considering these submissions, it is important to keep firmly in mind the true character and purpose of a policy plan such as the Civic Centre Canberra Policy Plan (January 1989). A policy plan has no operative force as such although, as has been noted, s.64 of the Australian Capital Territory (Planning and Land Management) Act obliges a Territory authority, during the transitional period which commenced on 31 January 1989, to act consistently with the policy plans there identified. Nor does the adoption of such a plan by the relevant planning body operate to vary the terms of any existing lease of land in the area covered by the plan. The purpose of such a plan is not to prescribe rigid rules governing the planning and development of the area to which the plan relates but to provide general guidelines for that purpose. The theme recurring throughout the report containing the Civic Centre Canberra Policy Plan (January 1989) is that the policies set forth, including, in particular, the land use policies, are flexible enough to enable appropriate decisions to be made with due regard to the circumstances existing in a particular area at a particular time. The following references, which focus to a significant degree upon the growth of office buildings in the central business district, amply illustrate the point.
The statement of objectives set out in the report, to which reference has already been made, recognises that, to achieve the identified objectives, action will be required to meet the needs for infrastructure and services to facilitate appropriate public and private development and to protect the environment (par.1.3). In discussing the metropolitan role and size of Civic (par.2.2) in chapter 2 headed "Major Issues and Conclusions", the following statements appear:

"A major objective of the Civic Policy Plan is to reinforce the role of Civic as the prime metropolitan centre, and the major focus of commercial, retail, entertainment and tourist activities in Canberra. In achieving this objective it will also be necessary to ensure that the relationship between the amount of employment which generates peak hour traffic and the capacity of the transport infrastructure, remains generally in balance. In order that the metropolitan Policy Plan objective of achieving a high level of employment dispersal to other towns can be realised, Civic's share of total ACT employment should be closely monitored. Accordingly, adequate and up-to-date data will need to be available on an annual basis to allow appropriate decisions on both future development in Civic and the programming of works necessary to support such future development."

Having referred to existing employment levels in Civic and likely trends, it is noted, in Chapter 2, that "(t)he critical question for the planning authority to decide will be how much office space it should agree to in the light of forecasts of employment levels, transport infrastructure, environmental capacity and the character of the city centre". It is expressly recognised that some flexibility in the application of the published criteria is an essential element of sensible decision-making. After referring to the need to ensure that decisions concerning future development in Civic are based on up to date information on the perceived capacity of the existing and future transport system and take into account social, economic and environmental factors, the following appears:

"Therefore employment growth, the environment and infrastructure provisions need to be monitored continuously and, based on the findings, limits set for growth in office employment, in any given period."

In relation to transport, Chapter 2 of the report notes that:

"Future employment growth in Civic will need to be matched by corresponding transport infrastructure provisions, or alternatively constraints placed on the rate and type of future development."

Reviewing the Civic road network and noting that some disruption is caused by heavy traffic volumes in Northbourne Avenue, the report states:

"The monitoring or continuous review process will be used to assess the on-going performance of the Civic road network. When required, additional road capacity can be provided by road widening and intersection improvements. Intersections will have to be progressively controlled by signals and on-street parking will have to be adjusted in accordance with traffic flows, particularly at peak periods."

The plan itself, which is set out in Chapter 3 of the report, states under the heading "General Policies":

"METROPOLITAN ROLE

Preamble

The policies which place Civic in a metropolitan context aim to reinforce its role as the prime metropolitan centre, while at the same time being cognisant of relative Metropolitan Policy

(MPP) Plan objectives: Policies

1. Major office developments will generally be directed to other town centres in accordance with the objectives of the MPP.

2. Civic will continue to be developed as the prime metropolitan centre for commercial, tourist, retail, entertainment and community facilities in Canberra.

3. Generally, uses that do not generate significant peak hour traffic, which reinforce Civic's role as the prime metropolitan centre, and which contribute to a lively and vital character, will be supported.

EMPLOYMENT POLICIES

Preamble

The recent Civic Employment Survey indicates that the present Civic employment level is 23,500, which is about 17% of the total employment of the ACT. Future employment growth is expected to be slower than previously predicted and is unlikely to reach 35,000 until about 2000. However the capacity of existing building stock, together with buildings approved or under construction is about 32,000. The physical form of Civic at the 35,000 employment level is therefore virtually apparent now. Transport thresholds for access to Civic exist in the employment range of 35,000 to 40,000. Accordingly the planning authority will need to make critical decisions about how much office space it should agree to in the light of forecasts of employment levels, transport infrastructure and the character of the city centre.

Policies

1. An annual review will be made of the amount of additional office development which, in the judgment of the planning authority, could be absorbed in the following three years in the context of known employment levels, transport, environmental and other relevant conditions expected to prevail over that period. This annual review may also be used to determine whether additional public works should be carried out to increase the capacity of the transport system and related infrastructure.

2. Applications for future development or redevelopment in Civic will be judged according to their effects upon the balance between employment and peak hour transport capacity (including long stay parking); upon the need to achieve development of decentralised employment throughout the metropolitan area, and upon the extent to which the character and diversity of land uses proposed contribute to the character sought for Civic.

3. No absolute employment ceiling will be placed on Civic but its share of metropolitan employment should not exceed 20%."

The preamble to the section of the plan setting out land use policies (par.3.3) states:

"Commercial office developments have provided the basis of growth in Civic's workforce in recent years and current commitments anticipate that employment could reach approximately 28,000 by 1991. Having achieved the broad aims of the 1984 Civic Policy Plan, to establish Civic as the main commercial area of Canberra, the intent of this Policy Plan is to conserve the now scarce resources in Civic for the uses most appropriate to a Central Business District location and for which there are clear public benefits."

The introduction to that part of the plan that sets out transport policies (par.3.4) provides:

"Canberra, compared with other Australian cities, has grown relatively rapidly. Civic in particular has experienced an extremely rapid development phase in the past five years and this is expected to continue for the next few years.

Imbalances have developed from the rapid employment growth which has not been matched by corresponding infrastructure provisions. These policies seek to redeem that imbalance in areas of parking, road access and capacity and public transport."

The decision of the Court in Morpath Pty Limited v. ACT. Youth Accommodation Group Inc. (supra) makes it abundantly clear that, in approaching the task which s.11A(1) of the City Area Leases Act commits to it, the Supreme Court is not bound to approve an application for the variation of a purpose clause simply because the proposed use is consistent with the uses for the area in which the land is situated set forth in the relevant policy plan. As the Court there said, the discretion conferred on the Supreme Court is of the widest ambit in the exercise of which it is entitled, indeed bound, to take into account relevant town planning considerations. As Beaumont J. said at p 344:

"It was also submitted by Morpath and by the Minister that the exercise of the Court's jurisdiction under s.11A was subject to the actions of the Commission pursuant to its statute. It was said that the Court could not exercise its jurisdiction so as to 'frustrate' the policies of the Commission. But no conflict between the exercise of the Court's jurisdiction and the policies of the Commission need arise. The Commission's function is to plan the national capital. The Court's function is to adjudicate, judicially and in accordance with the criteria specified in s.11A upon an application to vary a restriction on user. They are distinct functions which need not and should not, collide. It is one thing to say that the Court should take into account as a material, indeed powerful, consideration, the Commission's plans for the area. It is a different thing to say that the Commission's views, even if they are current, must be determinative of all the questions, jurisdictional and discretionary, which arise under s.11A. The Commission's policies lay down the general rule in the region or precinct. There remains the question, to be determined in the exercise of the judicial discretion conferred by s.11A(1), whether that general rule should be applied to a particular parcel of land at a particular time. Prima facie, the Commission's plan will be applicable but the special or particular circumstances of the case may justify the Court's departing from what the Commission has proposed."

The statements in the 1989 Plan to which I have referred are, of course, expressed in terms of the powers and functions of the Commission as the then relevant planning authority. However, in my opinion, they are equally apt to indicate the kind of consideration to which the Supreme Court may have regard in determining whether an application such as that made by Concrete Constructions should be granted.
To accept the submissions on behalf of Concrete Constructions and the Minister to which I have referred would be to deny to the Supreme Court, in considering an application under s.11A(1), any role in determining whether an office development in the central business district additional to those already approved is to be sanctioned. That issue would remain in the exclusive province of the relevant planning authority. So to limit the role of the Supreme Court cannot, in my opinion, be justified having regard to the generality of the language of the legislative provisions and the view which was taken of them in the passage from the judgment of Beaumont J. cited above.
There remains the question (which has caused me considerable difficulty) whether, given the wide ambit of the discretionary power conferred upon the Supreme Court by s.11A(1), the primary judge none the less went beyond the true scope of that power by rejecting the application "on broad policy grounds unrelated in any specific way to the subject building". To support the conclusion that he did so, counsel for Concrete Constructions and for the Minister relied heavily upon the final paragraphs of his Honour's judgment, the text of those paragraphs being set out earlier in these reasons. Contrary to the submission made by counsel on behalf of the second and third respondents, I regard those paragraphs as setting out, in essence, the reasons which led him to conclude that the application should be dismissed.
Counsel for Concrete Constructions and for the Minister emphasised the generality of the language used by his Honour in referring to the need to alleviate and, as far as possible, avoid the problems said to be the almost inevitable consequence of the development of a central business district and the need for the expenditure of large sums (recurring and non-recurring) to service the growing demands for transport to and from that district at peak periods generated by the number of office buildings already occupied and those in respect of which construction had been approved (whether construction had been commenced or completed). Nevertheless, a close analysis of what his Honour said leads me to conclude that the basis for the rejection of the application was his Honour's view of the impact which the proposed development would have in exacerbating the perceived problems. Not only does his Honour, by express reference in the penultimate paragraph of his judgment, state his conclusion to be based upon the perceived effects of the proposed development, but the whole of that paragraph must be read in the light of the paragraph earlier in the judgment where the issues were defined in terms limiting them to the impact which the use of the building proposed to be erected would have on the local amenities.
I express no view on the question whether, on the evidence, I would have reached the same conclusion as that reached by the primary judge. That is not the question. The question is whether it was open to his Honour, on the evidence before him, to reach the conclusion which he did on grounds falling within the discretionary power. I am not convinced that it was not open to him to do so or that, in doing so, he overstepped the boundary of matters relevant to be taken into account in exercising the discretionary power.
I would, therefore, dismiss the appeal. I would also order that the appellant pay the costs of the first, second and third respondents of the appeal. I would make no order as to the costs of the fourth respondent.

[1990] FCA 78

13 MARCH 1990