Council of the City of South Sydney v Claude Neon Limited

[1989] HCATrans 245

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S49 of 1989

B e t w e e n -

THE COUNCIL OF THE CITY OF

SOUTH SYDNEY

Applicant

and

CLAUDE NEON LIMITED

Respondent

Application for special leave to

appeal

Claude

MASON CJ
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 1989, AT 2.02 PM:

Copyright in the High Court of Australia

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SIR M. BYERS, QC:  If the Court pleases, I appear with my

learned friend, MR P.D. KERR, for the applicant,

the appellant below.	(instructed by Pike Pike &
Fenwick)

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR D.P. WILSON, for the

respondent. (instructed by Cutler Hughes & Harris)

MASON CJ:	Sir Maurice?
SIR MAURICE:	Your Honours, the question in the appeal before the Court of Appeal was whether section 39(2)
of the LAND AND ENVIRONMENT COURT ACT empowered
that court retrospecti\'elyto exercise a council's
right as owner of the land to make a development
application although the council, as owner, had
refused to do so.  The court said the answer to that
question was, yes, and it did so for reasons that
appear at page 39 of the appeal book connnencing at about line 19 and which, in our respectful
submission, disclose, an error of principle both as
to the LOCAL GOVERNMENT ACT and as to section 39(2) of the
LAND  AND ENVIRONMENT COURT ACT. They say:

The giving of its consent to the making of

an application for development approval is

undoubtedly a function of the council -

well, we say, not in the relevant sense -

and it is a function the exercise of which

is basic to its function to grant

development approval in such a case.

And, we say again, that is a mistake:

If the view which I have expressed is

right, namely, that a council can give its

consent to the lodging of an application by

giving development approval, in my opinion

section 39(2) places the LAND AND ENVIRONMENT

COURT, upon an appeal, in the same position

as the council. Section 39(5) provides that

a decision of a council upon an appeal

shall, for the purposes of the LAND AND instrument, be deemed, where appropriate, to be the final decision -

by the appeal tribunal.

The decision of the Court is thus, where

appropriate, deemed to be the decision of

the Council, and in my opinion the subject

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case is an appropriate case. The Court

thus having the same powers as the

council had when dealing with the

application before it, it is empowered

to give a consent which will operate as

a consent by the council in its capacity

as owner of the road to the lodging of

the application for development approval.

Now, that is the point. Your Honours, under

section 77 of the ENVIRONMENTAL PLANNING AND

ASSESSMENT ACT, copies of which I will hand to

Your Honours - could I just hand up all the statutes

to Your Honour at the moment?

MASON CJ:	What do you mean by all the statutes?
SIR MAURICE:	Well, I do not mean all of the statutes,

Your Honour, I just mean certain sections of the

statute. Perhaps if Your Honour:' s associate keeps it

and then when I mention them - I am going to refer to,,Your Honours, section 77, section 39(2) of the LAND.AND ENVIRONMENT COURT ACT and section 232

of the LOCAL GOVERNMENT ACT and maybe some of the other sections. The only point of section 77 is,

it says:  ·

A development application may be made only by -

(a) the owner of the land to which that

development application relates; or - - -

McHUGH J:	I do not think I have got a copy of that, Sir Maurice.
SIR MAURICE:	Your Honour, I have a profusion of copies here

which is probably the problem. I will give

Your Honour three copies on the face of which will

appear section 77:

(b) any person, with the consent in

writing of the owner of the land to which

the application relates.

Now, Your Honours, if I can next take Your Honours

to section 39(2) of the LAND AND ENVIRONMENT COURT ACT?

MASON CJ:  You seem to have succeeded in handing us all

the provisons of these statutes except the ones you

want to refer to.

SIR MAURICE:	Well, Your Honour, that is more than my usual confusion, Your Honour.
MASON CJ:	I was going to say generosity.

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SIR MAURICE:	Well, Your Honour is very gracious.
MASON CJ:	I have now been provided with these statutes,

so I ought to be able to find them.

SIR MAURICE:  If Your Honour pleases. If Your Honour goes

to section 39(2) - section 39(1) I do not think

matters, it just says an appeal means an appeal -

and then it says:

In addition to any other functions and

discretions that the Court has apart from

this subsection, the Court shall, for

the purposes of hearing and disposing of

an appeal, have all the functions and

discretions which the person or body whose

decision is the subject of the appeal had

in respect of the matter the subject of

the appeal.

Now, that is the making of the application for

development approval. If I could take Your Honours

now to the LOCAL GOVERNMENT ACT - - -

MASON CJ:  We need not trouble you any.further, Sir Maurice,

at this stage. Yes, Mr Jackson?

MR JACKSON:  Your Honours, may I hand up a short outline of

what we would say in response to the application?

MASON CJ:	Yes.
MR JACKSON:	Your Honours, may I just say one thing about

the facts which no doubt Your Honours will recall

is an advertising sign at Taylor Square, the

relevant part in respect to which the council had not

given its consent was the arms which come out over

the street and which illuminate the sign. Now,

Your Honours, could I turn then to the first of the

two aspects by reason of which we would resist the

application for special leave and that is that what

we would submit is that the case really does not do	any more than deal with how section 39(2) operates
in particular classes of case and does not raise an
issue of principle. Your Honours, section 39(2)
simply says that for the Land and Environment Court
to exercise the power, the power must be one which
is in respect of the matter:

the subject of the appeal -

and it says specifically that in addition to any

other functions and discretions that the court has,
the court shall for the purposes of hearing and
disposing of an appeal, have all the functions and

discretion of the council and the term "functions

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and discretions" is one which is defined by

section 4 of the same Act to include powers,

authorities and duties.

Now, Your Honours, having said that, views

may no doubt differ on whether a particular function

or discretion or a power falls within the
description in section 39(2) in a particular case but,

in our submission, the test is one which is

established and Your Honours will see indications of

it in the three cases to which I would wish to refer

Your Honours very briefly now.

The first of those, Your Honours, is

KOGARAH MUNICIPAL COUNCIL V KENT, (1981) 46 LGRA 334.

Your Honours, in that case at page 336,

Mr Justice Reynolds said in the last substantive

paragraph of his reasons for judgment:

However, the language of section 39(2)

which I have set out is wide and clear and

to me it means, as it does to Hutley JA,

that the court could do whatever the council

could do in order to disRose of the appeal.

Your Honours, in the judgment of Mr Justice Hutley,

again in the last few lines of it at page 337:

What the council could do, he could do, and whether he could it better is not

for this Court.

And, Your Honours, Mr Justice Glass, at about point 6 on page 337:

The application is such as to trigger the exercise of any relevant power vested in the council or court charged with the

responsibility of accepting or rejecting the

application absolutely or conditionally.

GAUDRON J:  But, is not the question, Mr Jackson, somewhat anterior

to that. Is not the question, really, whether there

was any application at all?

MR JACKSON:  Well, with respect, Your Honour, there was an

application. It was for the court in the end to

decide whether the application had or had not been

properly refused. One of the features about the

application was that the council might or might not

consent to it and if it had consented then that was

the end of the matter. If, on the other hand, the

council did not consent to it, that is a matter, in

our submission, which the Court in the exercise of

the power of section 39(2) could itself give. We

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would not suggest, Your Honour, that apart from

section 39(2), the Court could do it, but

section 39(2) does give the Court the power and that

is what I am seeking to say, Your Honour, is that

the question really is whether section 39(2)

applies in a case of this kind and it is clear that

section 39(2) does have a broad application and that

all the case is about is whether in a particular

class of cases it applies and, in our submission, that
is not sufficient for the grant of special leave.

Your Honours, the second case I was going to go to was STRATHFIELD MUNICIPAL COUNCIL V DREW, (1985) 1 NSWLR 338 and at page 344 -

MASON CJ:  That must be a wrong page reference, Mr Jackson.

The case ends at page 317. It starts at page 310 and ends at page 317.

MR JACKSON:  Your Honour, I suspect the Court has been given -

Your Honour, is it a decision of the Court of Appeal?

I am sorry to have to ask.

McHUGH J:  Yes, this is a decision of the Court of Appeal.

MASON CJ: Yes, but we have the report-in the Local Government

Reports of Australia.

MR JACKSON:  I am sorrY, Your Honour. The case I was

referring to -

McHUGH J:	You have got it in the New South Wales Law Reports.
MASON CJ:	Yes.
MR JACKSON:	Yes, I am sorry, Your Honour. Could I seek to

find the passage as quickly as possible? I was going
to go to Mr Justice Samuels' judgment and Your Honours,
the first paragraph of his reasons for judgement, he

sets out, in effect, _the section- and. then in the last

sentence of the second paragraph says:

Hence, the exercise of any power under the

PUBLIC HEALTH ACT was not in any way

involved in the subject of the appeal which
concerned only the council's power and
responsibilities under the environmental
planning instrument.

What His Honour is there doing, Your Honours, is simply

applying the test set out in the section with the

result one way rather than the other and,Your Honour,

I am simply referring to this case to indicate that

the approach to be applied is clear; it is simply a

question whether it applies in the particular instance.

Could I go also to Your Honour Justice McHugh, the

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penultimate paragraph of Your Honour's reasons for
judgment where Your Honour said in the middle of

the paragraph:

The power which it is claimed that the

court can exercise under section 39(2)

is a power to give approval under the

PUBLIC HEALTH ACT, section 51(2). It has

nothing to do with the development application

as such.

And Your Honour was looking there, and as will appear

from the third case to which I will come, the

question seems to be the degree of relationship

between the development application and the particular

other power of the authority.

Your Honours, may I come then to the third

case which is the decision of the Court of Appeal in

NORTH SYDNEY MUNICIPAL COUNCIL VP D MAYOR PTY LTD,

(1988) 14 NSWLR 740. Your Honours, in that case,
a case where the other members of the court agreed
with the judgment of Your Honour Justice McHugh,
the provision which was relevant appears at page 742

and if Your Honours look between letters Band C,

Your Honours will see that:

Where it appears to the responsible

authority that the purpose for which the land

is reserved -

the various public purposes for which the land might

be reserved -

cannot be carried into effect within a

reasonable period the responsible authority - and so on. And the question, Your Honours, was

whether the court, in the exercise of the power under

section 39(2), could decide the matter which was an

anterior question, of course, whether it appeared to

court held that it could. Your Honours, the reasons	the responsible authority that the purpose for which the land was reserved cannot be carried out and the	start relevantly at page 745, in letter C - Your Honours,
I shall not read it out but may I ask Your Honours to
refer to the sentence commencing:

But it is another question -

at page 745 and going on then, Your Honours, to almost

the whole of the next page at the end of letter F.

Now, Your Honours, the point to which I wish to direct

the Court's attention particularly, if I may, appears

at page 746 between letters D and F, where Your Honours

will see that the court took the view that if the

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council were to refuse an application on the ground

that it appeared to it that the pre-condition, if

I can use that expression, in section 10(2) was

not satisfied, that issue could be the subject

of an appeal and, Your Honours, section 39(2) would

apply to that part of the decision. The second

thing about the passage is that it does tend to

indicate that the question is really one of the degree

of relationship between the decision of the council

and the matter which is the subject of the appeal

and, in our submission, that is, with respect, of

course, really a paraphrase of what the section says

and the present case is simply one in which the

Court of Appeal was deciding whether it did or did not
apply to the particular type of circumstances
involved.

Your Honours, may I say one other thing on the

public importance aspect? The argument in the
affidavit in support of the grant suggested the
case is one of overall public importance to councils

as an owner of land,whether the land be roads or

otherwise.	Your Honours, may I say one or two things
about that?

One is that the Court of Appeal was careful to

confine its reasons to cases where the ownership was
of a public road and, Your Honours, in cases like that,

it is clear that the council's ownership is not as

absolute as that of a private owner. Your Honours have,

I think, one of the provisions that my learned friend

gave Your Honours; it is section 232 of the

LOCAL GOVERNMENT ACT and I would refer Your Honours

in particular to section 232(3)(d) which says:

Unless otherwise expressly provided nothing

in this section shall be deemed -

(d) to authorise the council to grant;

demise, dispose of, or alienate the road

projection above the roadway but it does indicate	I do not suggest, Your Honours, that applies to a or the soil or materials thereof.	that the council's powers are of a more limited
nature than might be conveyed just by being the owner.
And, the second feature is that the decisions to
which I refer· recognize that whilst the Court may
have the power conferred by section 39(2), it may not be appropriate for it to exercise it in particular
cases and, Your Honours, that appears by analogy, in
our submission, from NORTH SYDNEY MUNICIPAL COUNCIL V
PD MAYOR PTY LTD, the case to which I last referred
Your Honours at page 747, in the paragraph commencing
between letters A and B, where Your Honour Justice McHugh

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set out various considerations which might militate

against the exercise of power by the council. The

point which I make about that, Your Honours, is that

one should not take the view that the Court may not

have the power because of the possibility that a

court may exercise it capriciously.

Your Honours, that is all I wish to say about the question of whether the case is one of sufficient

importance to merit special leave. Your Honours,

could I just say one thing about the merits of the

case in relation to whether the judgment is attended

with sufficient doubt? Your Honours, there was only

one judgment in the Court of Appeal; there was no dissenting judgment and the judgments in the two courts below, the Court of Appeal were all to the

same effect and, Your Honours, without going into any

detail of the merits of the argument, it is simply a case where the essential issue'WB.S whether that power

was or was not, in terms of section 39(2), a

function of the relevant kind. The term "function"

is defined, as I have indicated to Your Honours, and

it is clearly capable of falling within that.

Your Honours, that is all I_wish to say.

MASON CJ:  Thank you, Mr Jackson. The Court need not trouble

you, Sir Maurice. There will be a grant of special

leave in this case.

SIR MAURICE:  If the Court pleases.

AT 2.25 PM THE MATTER WAS ADJOURNED SINE DIE

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