Courtney Hill Pty Ltd v South Australian Planning Commission

[1991] HCATrans 81

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A28 of 1990

B e t w e e n -

COURTNEY HILL PTY LTD

Applicant

and

SOUTH AUSTRALIAN PLANNING COMMISSION, CONSULERE PTY LTD and THE CORPORATION OF

THE TOWN OF GAWLER

Respondents

Application for special

leave to appeal

MASON CJ DAWSON J TOOHEY J

Courtney 15/3/91

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1991, AT 12.06 PM

Copyright in the High Court of Australia

MR B.R.M. HAYES, OC: If the Court pleases, I appear for the

applicant in this case with my friend,

MR J.F. COSTELLO. (instructed by Thomson Simmons

& Co)

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If the Court pleases, I appear with MS J.R. HART, for the respondent, the South Australian Planning

Commission. (instructed by the Crown Solicitor for

South Australia)

MR s. WALSH:	If the Court pleases, I appear with my learned friend, MR J.E.L. SCANLON, for the respondent,
Consulere. (instructed by Ward & Partners)

MASON CJ: Yes, Mr Hayes.

MR HAYES: If the Court pleases, I am mindful of the

comments of Your Honour the Chief Justice about a

year ago about how this Court views town planning

cases with a degree of aloofness, and would hasten

to point out that this application for special

leave does not involve the Court embarking on a

consideration of a statutory instrument such as the

one in the New South Wales case.

Your Honour, this Court in -

MASON CJ:  In a sense the New South Wales case might be

regarded as a bit stronger because that statutory

instrument was of a general and important kind.

MR HAYES: Well, we would say, with respect, that none the

less this Court from the point of view of being an

ultimate court of appeal is an ultimate court of

appeal for matters of this kind because of the

importance that it has in this State.

The Court in a previous case considered the

pivotal section with which we are concerned in the

Planning Act in Dorrestijn, and was at pains to

point out that the development plan was, in fact, a

fairly pivotal document in this Act.

Your Honour, the section with which we are

concerned is of significant importance to the

construction and the control of development in this

State, and the development plan itself is one which

all of the local authorities, of course, have to

rely on literally every day.

MASON CJ: If you are referring to the interpretation of the

phrase ttseriously at variancett, it does not really

lend itself to interpretation, does it? It raises

issues of fact and degree.

Courtney 15/3/91

MR HAYES:  Yes, Your Honour. The point that we would make

in support of the application for special leave is that the Full Court of South Australia in the case

of Reg v The City of Munno Para; ex parte John

Weeks Pty Ltd, 46 SASR 400, decided that the issue
of "seriously at variance" was, in fact, a matter
of law. If I can just take Your Honour to page 403
of that judgment, in the middle of that page

His Honour the Chief Justice said:

For good or ill, Parliament has decided that

the validity of a consent is not to be

determined by reference, as is usual, to

defined legal criteria but is to depend upon

the judgment of a court of law as to whether a

proposed development is seriously at variance

with the Development Plan. Care will be

required on the part of the court, when such

an issue comes before it on an application for

judicial review, to confine itself to its

legitimate role in supervising the legality of

the planning process. The court must ensure

that it does not become involved in matters of

planning merits which are proper for the
consideration of the appellate tribunal but
which are not jurisdictional in character. An
alleged serious departure from the plan can be

the basis of intervention by the court on

judicial review only 'if the existence and

seriousness of the departure can be discerned

plainly by the court from the material before

it without the necessity of resolving

debatable issues relating to planning merits.

The Court then went on to find that the question of determining whether a matter was

seriously at variance with the development plan is

a matter of law and not a matter of planning and

even though there may, on some occasions, be the

areas where there is room for argument as a matter

of planning.

MASON CJ:	Where did they say it is a question of law?
MR HAYES:	Could I take Your Honour to page 402, in the

middle of that page:

What is the legal effect of the change

made by the introduction of par (b)?

And that is the addition of the words "seriously at

variance".

There are alternative views. The first is

that the new paragraph does not touch the

validity of decisions made by a planning

authority which has had regard to the plan,

Courtney 3 15/3/91

but merely provides a ground which, if it

exists on the facts of the case, must lead to

the refusal of consent. On this view a

consent which is seriously at variance with

the Development Plan would be a legally valid

but incorrect decision. It could only be

corrected on appeal brought by a person having

standing to appeal. The second view is that

the new paragraph circumscribes the legal

power of the planning authority to consent to

a proposed development and renders any

purported consent which is at serious variance

with the plan invalid.

There are cogent arguments in favour of

the first view.

His Honour then deals with those arguments but

concludes, at the bottom:

Notwithstanding the arguments, based on

such considerations, in favour of the first

view, it is difficult when the matter is

approached as an exercise in statutory

construction, to escape the second view.	The
new paragraph is expressed in terms of

outright prohibition. It is engrafted onto a
statutory provision requiring the planning

authority to have regard to the plan,

compliance with which provision has been held

to be a condition precedent to the validity of

a grant of consent. The language used in

par (b) of subs (9) stands in marked contrast
to the language of subs (1) were the

prohibition is merely against consent "without having considered'' the requirements of certain

instrumentalities and agencies. Under

subs (9)(b) the prohibition, if there is

serious variance, is absolute.

And then His Honour goes on to point out that there

are: 

on innumerable occasions questions whether a

particular statutory provision affects
jurisdiction or vires on the one hand or

whether it affects only the merits on the

other hand.

They decided, in the end, in this case, that it did

affect jurisdiction; it went straight to the

jurisdiction of the planning authority to grant the

consent. If it was seriously at variance it did
not matter that it might be a bad planning
decision, it, in fact, was an unlawful planning

decision, invalid planning decision.

Courtney 4 15/3/91

MASON CJ:  But what about the sentence - it is the third

sentence commencing in the next paragraph, after

the words "Development Plan", about 10 lines down:

I must say that I have reached this conclusion

with some reluctance because it makes the

validity of an important administrative act

depend upon debatable questions relating to

planning values and the degree of the proposed

departure from the Development Plan.

MR HAYES:  His Honour seems on the one hand to be saying

that it is not, in our respectful submission, a

matter which one goes into, those debatable
questions of planning because it is for the court
to look at the plan and say, "Is it seriously at

variance with that plan?".

That is, essentially, the ratio of the Weeks'

case, supported by Justice White and by

Justice Legoe. The decision in this case, the

court found this major extension, some 2000 square

metres of retail space, to be in conflict with the

plan. They found His Honour the Chief Justice

said, "If this was a new development it would be

seriously at variance with the plan.". He then

went on to say, "But it's an existing development

and because it is existing it is protected by -

that part of it which is existing is protected by

section 56 of the Planning Act. Therefore", and
then he went on to talk of the - "it could not be

considered to be seriously at variance".

Our point here is that there is simply no

basis for that decision consistent with the of law, and if a new development on the finding is

it is seriously at variance, it is the size, it is

the same development, then the fact that the same

size development is tacked on or attached to an

existing one, in our submission, cannot be not

seriously at variance with the development plan,

which is what they have held to be the case here.

So we say, with respect, that now there is

this inconsistency and conflict at the State level

of a very important point because it is fundamental

to the administration of development control.

TOOHEY J:  Mr Hayes, does that point, the point that you

have just made about the existing use and its

relationship to "seriously at variance" come

through in the draft notice of appeal?

MR HAYES:  Yes. If Your Honour looks at page 91, "The Full

Court erred in holding that there was no clear

intention - - -

Courtney	15/3/91
TOOHEY J:	I think it is 81, is it not, at least on my copy

it is. At any rate, I have it.

MR HAYES: Sorry. It is ground number (c).

TOOHEY J: Yes.

MR HAYES:	The Full Court erred in holding that there was
no clear intention evinced by the Planning Act
that the ordinary method by which a
development in continuation of an existing use
is to be sanctioned is by Supplementary
Development Plan.

The next ground is linked to it, and I will take

the Court to those parts of the judgment, because

we say the reliance on the existing use provisions

by the Full Court was misplaced in the

circumstances of this case, having regard to what

they say. Your Honour, can I take you to page 65

of the appeal book? That sets out section 56,

which is the relevant section which was relied on.

Section 56 says:

Division I does not prevent or otherwise

affect the continuation of an existing use of

land but, subject to subsection (2) -

and that is not applicable here -

a person is not entitled to undertake

development for the purpose of the
continuation of an existing use of land

contrary to that Division."

Now, the effect of that is that it does not

matter as a matter of law and the legislation does

not give any special protection to existing use

when you seek to extend it, and when you seek to

extend by undertaking development, which is the

case here, then it falls within the normal

categories of development. It must do because

otherwise Parliament would have given some

protection to the existing use and legitimate

extensions to that existing use, where they

were - - -

DAWSON J: But all that means is what the Court said, that

it is at variance with the development plan.

MR HAYES: Well, the Court said that the development itself

was seriously at variance with the development plan

if it was new.

DAWSON J: Yes, that is right.

MR HAYES: If it was a new development.

Courtney 6 15/3/91

DAWSON J: Yes, but it was not when it was merely the

extension of an existing use.

MR HAYES: Yes. Well, we say, with respect, that it is

illogical to say that as a matter of statutory
construction, it is a matter of law to determine
"seriously at variance" when you look at one
building and say, "That is seriously at variance",
but you put it next door to another and attach it
to it to say, "That same building" - not the

combined building - "is not seriously at variance

because it is an extension of an existing one",

unless the legislation attaches some protection to

that extension. We say the legislation does not do
that, but the Court has purported to take it out of

the prohibition by having it as an extension.

The consequence of that is that any extension

to an existing building which would otherwise be

prohibited straight out and seriously at variance

will now have the argument that it is or might not

be.

DAWSON J:  I suppose it depends on the extent of the

variation or extension?

MR HAYES: Well, yes, I would accept that, Your Honour, but

in this case His Honour the Chief Justice looked at

the extent and said, "It is a massive 2000 square

metre building". If it was standing alone it would

be seriously at variance. He would have no

hesitation in saying, "It was seriously at

variance" and we say, with respect, that that

simply is inconsistent, I mean it just leads to a

very unsatisfactory position as far as planning

authorities are concerned in this State because

there is no support for the proposition.

TOOHEY J: That is a much narrower argument than one would

glean from reading the notice of appeal I think.

You appear to be saying, Mr Hayes, that the real

question here is whether the Full Court erred in	failing to have regard to the existence of the use
that was, in fact, a continuing or non-conforming
use, is that right?

MR HAYES:	The Full Court had too much regard to - - -
TOOHEY J:	I am sorry, yes, I see the way you are putting

it, yes.

MR HAYES:  - - - too much regard which is not supported by

the legislation itself.

TOOHEY J: But do you say they were not entitled to have

regard to it at all?

Courtney 15/3/91

MR HAYES:  That is right. They were not entitled to look at

the existing building and say, as they have said,

"That existing building is protected as an existing

use, therefore, any extension of it which we find,

in terms of its size, is seriously at variance but

because it is an extension of the existing building

is not seriously at variance".

Now, Your Honours, it would be quite

impossible to put this argument, other than for the

fact, that the Full Court itself has found that the

determination of "seriously at variance" is a
matter of law. That is where there is this
inconsistency. If Your Honour looks at the bottom

of page 66 of the appeal book, just to make that

quite clear, His Honour the Chief Justice says at

the bottom of page 66:

The proposal is for a substantial

development which is prohibited by the Plan. If it were a new development rather than an extensions of an existing development, I would

have no hesitation in characterising it as

seriously at variance with the Plan. The

proposal under consideration, however, is not

a proposal for a new shopping complex but for

an extension ..... which is itself protected as

an existing use.

Now, if we go back to the protection which is

given, certainly it is protected but its extension

falls within the normal categories of determination

which he has found to be seriously at variance.

There is simply no nexus there.

His Honour places weight on this fact right

through the course of his judgment. If you go to

page 69, he says:

It seems to me that the extent of the variance

from the Plan involved in the project must be

judged in the context in which the project

will be implemented. That context must

include the fact that the existing shopping

complex is a protected existing use which will

continue.

It is, with respect to His Honour, difficult to see

how the fact that a complex as existing can

influence an objective judgment of whether the

building is seriously at variance given all the

characteristics of it, of its size, et cetera,

where there is already made that finding. If he

had said, that taken as a whole the extension is
not large enough to warrant a finding that it is
seriously at variance, so be it,but he has already

found that the extension is large eno.ugh to take it

Courtney 15/3/91

outside that category and make it unlawful for the

council to approve as a separate development but

then he attaches it on to the existing development.

The basis, ultimately, that he is able to do

that, with respect, involves him in looking at the

kind of planning issues which a jurisdictional

question would preclude. If Your Honour goes to

page 70 of the judgment, in the middle of that

page, he says again:

The reality is that that shopping complex will

continue to exist and operate irrespective of

the outcome of this proposal.

Now, with respect, that does not matter. Then:

The proposed extension is undoubtedly

substantial but its impact upon the

development of the town in accordance with the

appropriate planning objectives is, to my

mind, considerably minimized by the fact that

it is a mere extension of an existing and

operating facility.

If a development of 2000 square metres, on its

own, is seriously at variance with a development

plan, how, with respect, can it be minimized by

putting it on to an existing one?

DAWSON J: Because, in the circumstances, its impact upon

the community in various ways is not great because

it is already there. That is the answer and

therefore the tribunal was at liberty to come to

the conclusion that it did; it did not fall

outside the parameters of "seriously at variance".

MR HAYES: But, with respect, that, again, is not viewing or

not using Weeks' case in the way in which

His Honour said it should be used.

TOOHEY J:  I just wonder, Mr Hayes, if you are not drawing

too much from Weeks' case?	You took us to
page 402:

The second view -

which was referred to by the Chief Justice -

that the new paragraph circumscribes the legal

power of the planning authority to consent to

a proposed development and renders any

purported consent which is at serious variance

with the plan invalid.

Well, in that sense, there is a question of law

involved but does it follow from that that the

Courtney 9 15/3/91

expression "serious variance" at law is an
expression which has one specific meaning? It

still carries with it the notion of a value

judgment, does it not?

MR HAYES: It is very difficult, with respect, to reconcile

a value judgment being incorporated into the kind of expression which gives rise or which qualifies the jurisdiction of a court.

DAWSON J: Why not? The expression sets limits, but it is a

value judgment as to whether the particular

development does or does not fall within those

limits.

MR HAYES:  A value judgment based on the provisions of the

plan. The value judgment in this case, with

respect, was made by the Chief Justice finding the
complex to be seriously at variance. That value

judgment was then diminished for the wrong reasons by his reliance on section 56 and the existing use

provisions. There is simply no justification, in

our respectful submission, for that and that is

where we say that he has erred because the

consequence of the Full Court's judgment must now

be that if you have got an extension well then you

might bring yourself outside of the prohibition

which would otherwise apply to your building. And

we say that flies in the face of the provisions as

outlined in the legislation. If the Court pleases,

those are my submissions.

MASON CJ:	Thank you, Mr Hayes.
MASON CJ:	The Court need not trouble you, Mr Solicitor, nor you, Mr Scanlon.

This Court is, as a general rule, very

reluctant to grant special leave to appeal in town

planning cases. That is because jurisdiction in

town planning cases is vested in a specialist court

or tribunal which can bring to bear its expert

knowledge and experience, including its knowledge
and experience of the particular planning scheme

which it is called upon to interpret and

administer. In order to attract a grant of special

leave in such a case an applicant needs to

establish, at least, that it involves a fundamental

question of general principle, whether arising by

way of construction of a statute or otherwise.

The present case involves no such question.

The question is, whether the proposed development is "seriously at variance" with the provisions of the development plan, see section 47(9) of the

Planning Act 1982 of South Australia. That

Courtney 10 15/3/91

question necessarily involves elements of fact,

degree and value judgment.

We should mention that the history of the

matter holds out little hope that an appeal to this

Court, if special leave were granted, would

succeed. Appeals by the present applicant were

successively dismissed by the planning tribunal, by

Mr Justice Jacobs and by the Full Court of the

Supreme Court in a unanimous judgment. The

application for special leave is therefore refused.

MR WALSH:  If the Court pleases, I ask for costs on behalf

of both respondents.

MASON CJ: Yes.	You do not oppose an application for costs?
MR HAYES:	I cannot oppose that, Your Honour.

MASON CJ: Very well, the application is refused with costs

in favour of both respondents.

AT 12.30 PM THE MATTER WAS AD~OURNED SINE DIE

Courtney 11 15/3/91