Fairman v Wright

[1995] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B15 of 1995

B e t w e e n -

REGINALD ALBERT FAIRMAN

Applicant

and

HAYDEN GEORGE WRIGHT

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 1995, AT 10.47 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC, Solicitor-General for Queensland:  May it please the Court, I appear for the applicant with MR R.A.I. MYERS of counsel.  (instructed by Hemming & Hart)

MR P.J. LYONS, QC:  May it please the Court, I appear with my learned friend, MR P.G. BICKFORD, for the respondent.  (instructed by King & Company)

DAWSON J:   Yes, Mr Keane.

MR KEANE:   Your Honours, this case raises a short question.  In this case the majority of the Court of Appeal held that the expression “natural surface levels” appearing in a town planning scheme regulating land use in a semi‑rural area near Brisbane should not be read as the dictionary suggests as meaning formed by nature but rather as including the surface levels resulting from the lawful use of the land and that use, “together with the operation of the elements of nature over a period of time”.  Your Honours will see that conclusion in the judgment of Justice White, with whom Mr Justice Pincus agreed.  Her Honour’s judgment is at page 27 of the record and the relevant passage is at lines 23 to 27.

Your Honours, the case concerned a prohibition in the relevant local planning scheme against an owner of land changing the natural surface levels of an allotment.  In the dissenting judgment of his Honour Justice McPherson, which your Honours will find in the record at page 14, lines 15 to 25, his Honour points out out that if the majority is correct, action taken by an owner to restore land damaged over time by erosion consequent on the activity of man and his animals would be to alter the natural surface levels and would not be permitted to an owner of land.

Your Honours, in paragraph 7 of our learned friend’s summary the majority view is put in another way which involves equating natural surface levels with the phrase “established surface levels” but, in our submission, the word “established” is clearly not the same as “natural” and neither, if one goes to paragraph 8 of their summary, is the phrase “existing level” which is urged as an alternative to be equated with “the natural level”.

DAWSON J:   Mr Keane, there is no absolute truth that lies at the end of this rainbow, is there?

MR KEANE:   Your Honour, we accept that it may be that context can control.

DAWSON J:   It is a town planning scheme which has a local application.

MR KEANE:   It is, your Honour.  The phrase is a phrase that does come up - and one can understand why, particularly in relation to semi‑rural areas.

DAWSON J:   In a different context it may be given different interpretations, but that is not of importance, is it?

MR KEANE:   Your Honour, as Mr Justice Pincus pointed out in his judgment, while one can say that other phrases might more happily be used, it is difficult in some circumstances to imagine how you can better put the point, particularly in semi‑rural areas, than saying “Don’t change the natural surface levels”.

DAWSON J:   That may be so, but is that something which really attracts the attention of this Court?

MR KEANE:   Your Honour, it is a phrase that has fallen for attention in some other decisions because of provisions, for example, of development approvals in New South Wales in Rizzi v Rockdale Municipal Council.  Might we hand your Honours copies of that decision.  In that case, admittedly in terms of development approvals, the phrase “existing natural ground level” was used and the New South Wales Court of Appeal held at page 115 that that should be taken to refer to the ground level existing in its natural, as opposed to artificially altered, mode.  In the decision of Shire of Gisborne v King, which is referred to in the majority judgments, the phrase “natural topography” is used in Victorian planning legislation and planning schemes made under it.

DAWSON J:   So that different words are used with slightly different meanings leading to different results, but so what?

MR KEANE:   Well, there is a fundamental core of meaning which, in our respectful submission, is ‑ ‑ ‑

DAWSON J:   What is that fundamental core?

MR KEANE:   That fundamental core is “formed by nature” rather than something which exists at the time of particular development starts or established.  A fortiori, in our respectful submission, it cannot mean established by the activity of man and his animals over a period of time or ‑ ‑ ‑

DAWSON J:   But this Court has resisted getting itself involved in the interpretation of town planning schemes.  They are instruments which can be easily amended to cope with local conditions.  They are essentially local in their application.

MR KEANE:   What your Honour says is obviously true.  It is most recently reflected in the decision on a special leave application in Courtney Hill v South Australian Planning Commission.  Might we hand copies of that to your Honours just to make one point in relation to your Honour’s point.  When one looks at what is said in the Courtney Hill decision in the left‑hand column, we can at least say this, that this is not a case where there is occasion for the application of special expertise by a town planning court or tribunal.  It is a case where we are concerned with land use legislation which orders its prescription by reference to a fundamental concept, that fundamental concept being the natural state of the land, and that its meaning may be a little illusive.  It does not mean that it is not an important point.  It is certainly not a point that involves town planning expertise and it is not a point that involves the Court in having to go through a lot of eccentrically drafted town planning language and jargon.

So that, your Honours, we submit the point is appropriate for the grant of special leave.  It is a short point; it is a point on which there is a difference between the Queensland Court of Appeal and the New South Wales Court of Appeal in relation ‑ ‑ ‑

DAWSON J:   It is different context, different phraseology.

MR KEANE:   ‑ ‑ ‑ to a phrase that does come up, and one can expect it will come up, in legislation regulating land use.  Your Honours, those are our submissions.

DAWSON J:   We need not trouble you, Mr Lyons.

The question raised by this application is one of the construction of a town planning scheme which is of local concern.  No point of special importance emerges which would justify the grant of special leave.  Special leave is therefore refused.

MR LYONS:  The respondent seeks the costs of the application, if the Court pleases.

DAWSON J:   It is refused with costs.

AT 10.58 AM THE MATTER WAS CONCLUDED