CSR Limited v Pine Rivers Shire Council

[1994] HCATrans 347

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane Nos B2 and B3 of 1994

B e t w e e n -

CSR LIMITED

Applicant

and

PINE RIVERS SHIRE COUNCIL

First Respondent

and

THE ATTORNEY-GENERAL FOR THE

STATE OF QUEENSLAND

Second Respondent

Applications for special leave

to appeal

CSR 1 13/5/94

BRENNAN J
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 MAY 1994, AT 11.12 AM

Copyright in the High Court of Australia

MR P.J. LYONS, QC:  May it please the Court, I appear with

my learned friend, MR W.G. EVERSON, for the

applicant. (instructed by Connor O'Meara)

MR R.V. HANSON, QC:  May it please the Court, I appear with

MR C.L. HUGHES, for the first respondent.

(instructed by R. D. Forbes, Shire Solicitor, Pine

Rivers Shire Council)

MR J.A. GRIFFIN, QC:  May it please the Court, I appear with

MR G.C. MARTIN, for the second respondent.

(instructed by K.M. O'Shea, Crown Solicitor for the

State of Queensland)

MR LYONS:  The question which is raised in this application

and in the appeal determined by the Court of Appeal

was whether the Planning and Environment Court had

jurisdiction to grant a declaration as to the

validity of an amendment to a town planning scheme

once the amendment had been published in the

Gazette.

BRENNAN J: What is the question of general public

importance which would warrant the grant of special

leave on those matters?

MR LYONS:  Your Honour, we would submit that the extent of

the jurisdiction of that court is a question of general public importance.

BRENNAN J: There is no doubt that there is a jurisdiction,

either in that court or the supreme court to make

the declaration which is sought. Why is it not an

appropriate matter for the Court of Appeal in

Queensland to determine where that jurisdiction

resides and to determine that question finally? It

must turn, after all, on the words of the statute.

MR LYONS:  It does turn on the words of the statute.

BRENNAN J: And a mere question of interpretation without

raising any new principle of interpretation.

MR LYONS:  It does not raise any principles of

interpretation. However, we do submit it is a

question of general importance, as I have already

stated, and we do submit that there is conflict in

the approach which was taken by the majority in

this case and that taken by members of the court in

an earlier decision dealing with the same section.

BRENNAN J: Perhaps you can demonstrate that.

MR LYONS: If the Court pleases. The basis for the decision of the majority in this case appears in the reasons

commencing at page 28 of the record, paragraph 19.

The majority took the view, as we would summarize

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it, that an application to amend - that an

amendment of a planning scheme, was not an "act,

matter or thing", to be undertaken with respect to

the scheme. That appears from paragraph 20 where

they identified a need for not one, but two,

material connections. In paragraph 21

Their Honours stated:

It is necessary to identify the "act,

matter or thing" which the declaration is

sought "in respect of", which cannot itself be

"the planning scheme" or "the use of land".

The author stated:

That, as it seems to me, is the deficiency in

CSR's claim. It is in respect of "the planning scheme" and perhaps also "the use of land", but it is not in respect of an act, matter or thing which is in respect of the planning scheme or the use of land.

In paragraph 22 in the last sentence, Their Honours expressed the view:

It is reasonably clear that the "act, matter

or thing" referred to is an act, matter or

thing different from the planning scheme (or

the use of land).

And Their Honours concluded in paragraph 23:

that the declaration sought is outside the

limits of the Planning and Environment Court's

jurisdiction.

The other case with which we would submit that

reasoning is in conflict is Makucha v Albert Shire

Council, (1993) 1 Qd R 493. It was a case

concerned with the validity of an application for

rezoning. Rezoning, under the provisions of the

Their Honours there held, or all members of the	legislation, is an amendment of the scheme, and
court came to the conclusion that the application
for the declaration in that case was within the
jurisdiction of the Planning and Environment Court.
The form of the application, I hasten to point out - the form of the declaration sought, is not
identical with the form of the declaration sought
here. The form of the declaration appears at the
bottom of page 494 of the report at paragraph 1:

that rezoning applications •.••. were not duly

made.

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BRENNAN J: That is a pretty substantial disparity between

the relief sought in that case and the relief

sought in this.

MR LYONS:  Your Honour, I drew the Court's attention to the

difference, but on page 495 in the judgment of

Their Honours Mr Justice Pincus and

Mr Justice Davies, the reasoning on which the

judgment was based appears commencing at line 22:

The proposed rezoning is an act, matter

or thing to be undertaken in respect of a

planning scheme, as well as being in respect

of the use of land.

And Their Honours continue:

taken •.... depended on the Act - It is true, as the judge said, that the points

There was a dispute about whether a matter which

turned upon the provisions of the Act was within

the court's jurisdiction, but Their Honours

concluded at the end of that paragraph that:

the Planning and Environment Court had, and of

course still has, jurisdiction to hear and

determine the application for declarations.

In our submission, what Their Honours said in the
first couple of lines of that paragraph supports
the proposition that the rezoning, which is an

amendment of the scheme, is an Act, matter or thing

to be undertaken in respect of a planning scheme as

well as being ln respect of the use of the land. implication, found the contrary because they took

the view that the application which was precisely

for a declaration that that act, matter or thing

was invalid, was not within the jurisdiction of the

court.

BRENNAN J: Where in the judgment of the majority in the

present case is there any consideration of the

judgment in Makucha?

MR LYONS:  Your Honours, they do refer to it briefly when

they refer to the submissions.

BRENNAN J:	On page 27 there is a reference to it.
MR LYONS:	Yes, I think that is so, where they summarize the

submissions on behalf of the present respondents

who were the appellants in the Court of Appeal.

BRENNAN J: Yes.

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MR LYONS:	The submission which was advanced to them was

that the decision in Makucha's case supported the
propositions for which the present respondents
contended. It is not, I do not think, discussed

further in the reasons of the Court of Appeal.

BRENNAN J:  Is it not impliedly the view of the Court of

Appeal that Makucha's case did not decide the

question which was to be decided in the present
case?

MR LYONS:  Yes.

BRENNAN J: And the present case is as they say it is.

MR LYONS:  The present case is for an application after the

amendment has been gazetted. Makucha's case was

not, on its facts, an application of that nature.

It was an application made before gazettal but the basis of the two members of the court to whose

judgment I have already referred in Makucha's case,

in our submission, is inconsistent with the

approach taken by the majority in the present case.

BRENNAN J: That rather suggests to my mind, Mr Lyons, that

the present case was intended to deal in its terms

with the problem which you raise and that

Makucha's case and what was said in it, was "not

regarded as definitive of that point. If there is

some mistake in relation to that approach to the

court's analysis of Makucha's case, it would:be

appropriate to have the Court of Appeal say so

rather than this Court say so.

MR LYONS:  I can only say that they have not set out an

analysis of Makucha's case and can only suggest that one could try to speculate as to what they thought about Makucha's case, but their decision,

in our submission, the result they have come to is

inconsistent. The reasoning relied upon by the two

members of the court to whom I have referred -

different approach - is, in our submission, His Honour Mr Justice Williams took a somewhat	inconsistent with the reasoning of the majority in
this case.

BRENNAN J: Yes, thank you, Mr Lyons.

MR LYONS:  I had other submissions about the questions

raised. We would be submitting, obviously, that

the conclusion was wrong. we submit that the act,

matter or thing in respect of which the declaration

was sought was the amendment itself or,

alternatively, was the application which CSR, the

present applicant, had made for rezoning, and we

would refer to the approach taken by His Honour

Mr Justice McPherson on that issue which - and I

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will simply give Your Honours the reference -

commences at page 34 of the record, and we would

make some submissions about the correct approach to

the construction.	We would submit the language
used in the grant is wide.	It is consistent with

the purposes of the legislation and that a grant to

a specialist tribunal such as the Planning and Environment Court should be broadly construed.

I have dealt, I think, with all of the matters

that I propose to deal with. Those are our

submissions.

BRENNAN J: Yes, thank you, Mr Lyons. We need not trouble

you, Mr Hanson, nor you, Mr Griffin.

The question of law which the applicant seeks

to raise on appeal is not inherently of sufficient

public importance to justify a grant of special

leave. There may be some difficulty in reconciling

the majority decision in this case with what was

said by the majority in Makucha v Albert Shire

Council [1993] 1 Qd R 493, but that is a

difficulty more appropriate for resolution by the

Court of Appeal than by this Court. Accordingly,

special leave will be refused.

MR HANSON:  If the Court pleases, we ask for costs of the

application.

BRENNAN J: Yes, Mr Hanson. Mr Griffin, do you make a

similar application?

MR GRIFFIN: Similarly, if the Court pleases.

BRENNAN J:	Do you have anything to say, Mr Lyons?
MR LYONS:	No, Your Honour.
BRENNAN J:	Special leave will be refused with costs.
AT 11.26 AM THE MATTER WAS ADJOURNED SINE DIE

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