Lewani Springs Resort Pty Ltd v Gold Coast City Council

[2010] HCATrans 295

[2010] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B37 of 2010

B e t w e e n -

LEWANI SPRINGS RESORT PTY LTD (ACN 068 977 104)

Applicant

and

GOLD COAST CITY COUNCIL

First Respondent

ALDI STORES (A LIMITED PARTNERSHIP)

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 NOVEMBER 2010, AT 10.30 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR R.S. LITSTER, SC, for the applicant.  (instructed by Hopgood Ganim Lawyers)

MR C.L. HUGHES, SC:   If it please the Court, I appear with my learned friend, MR B. LE PLASTRIER, of counsel for the first respondent.  (instructed by McDonald Balanda and Associates Lawyers)

MR D.R. GORE, QC:   If the Court pleases, I appear with my learned friend, MR B.D.H. JOB, for the second respondent.  (instructed by DLA Phillips Fox Lawyers)

HAYNE J:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, this is a case where it is submitted special leave should be granted for the reasons which are set out at page 65 of the application book in paragraphs 34 to 37.  Your Honours, may I go immediately to the provisions which lie at the heart of the application and then to the question of the utility of allowing it.  The Integrated Planning Act 1997 is concerned with applications to local authorities for development on land. Your Honours will see the provisions are set out in our materials. I will take your Honours to them as I come to them. Public notification of such applications is required for the purposes set out in section 3.4.1, the commencing provision of the part of the Act which deals with the notification stage. Your Honours will see that at tab 2. You will see at the bottom of that page 3.4.1:

The notification stage gives a person –

(a)the opportunity to make submissions . . . and

(b)the opportunity secure the right to appeal –

It is a particular reflection of the matter which is referred to at the commencement of the Act in section 1.2.3 behind tab 9.  You will see the heading, “What advancing this Act’s purpose includes” and if your Honours would look at 1.2.3(1)(f) it says:

providing opportunities for community involvement in decision making.

Your Honours will see also that the heading of that subsection (1) “Advancing this Act’s purpose”, and then your Honours will see also that functions or powers conferred under the Act are to be exercised “in a way that advances” those purposes.  You will see that, your Honours, from section 1.2.2(1), relevantly (a).  If I could return then to the notification stage.  The provisions of section 3.4.4, which appear behind tab 3, require the giving of notices in a newspaper, on the land and to the adjoining owners.  The notification period is provided for in two places, first of all by section 3.4.5, which on the third page behind tab 3, “15 business days”.  Section 3.4.6(1):

The notice placed on the land must remain on the land for all of the notification period.

In many cases, of which this was one, the notification period was not 15 days but 30 days.  That comes about because of section 6.7.1A behind tab 6.  Your Honours will see, in particular, 6.7.1A(2) which says it “30 business days” if the case falls within 6.7.1A.  Your Honours, I do not think I need to go into the detail why it was 30 rather 15.  It was because of a wetland.  None of the methods of notification given by the second respondent referred to the period of 30 business days.  All wrongly identified the period for lodging submissions as concluding after 15 business days and the notices on the land were taken down after only 15 business days.

Your Honours, there is a power to excuse non‑compliance, which is the provision critical for present purposes.  It includes the power to exclude non‑compliance with provisions of the nature to which I have referred.  You will see it behind tab 1 and it is section 4.1.5A.  The court, under subsection (2) can “deal with the matter in the way the court considers appropriate” and then one goes back to subsection (1).  In this case, your Honours, it is accepted that paragraph (a) was satisfied.  The question was paragraph (b).  Your Honours, the question raised by it was whether the non‑compliance had not, to use the words of the provision, “substantially restricted” the opportunities which are there set out.

Your Honours, the rights and the opportunities are those to which we have referred in section 3.4.1.  It is the provision behind tab 2, that is, the opportunity to make a submissions and if one has made a submission, the opportunity to appeal to the court about the decision that is made in relation to it.  Your Honours will note that section 4.1.5A(1)(b) speaks of a restriction of opportunity to exercise those rights.  One can understand that there may be cases where a difference of view could be open as to whether there had been a substantial restriction of opportunity in some cases, mail delivered late, a day or two date, for example, or a sign blown down in a storm and not re‑erected until late the next day or something of that kind.

This case had no such features.  It was a case of the starkest kind.  On the view most favourable to the respondents, the notifications had only been for half the required period.  The judge in the Planning and Environment Court, as you will see at page 5 at the bottom of paragraph [10], regarded it as “a considerable deficiency”.  Your Honours, in our submission, only one view of the matter was possible.  The power to deal with non‑compliance arises only if it could be established that the non‑compliance had not substantially restricted the opportunity for a person to exercise the rights. 

With respect, your Honours, it is, we would submit, an extraordinary consequence to say that if these notices are up for only half the time and if the time in them is restricted to only half the time of which there is an opportunity to make a submission, that there has been something that one could say the opportunity for a person to exercise the rights has not been substantially restricted.  Now, your Honours, our submission is that the case was one where only one view was possible.  To hold otherwise was an error of law.  The considerations taken into account were not apt to lead to a conclusion that the considerable deficiency had not substantially restricted the opportunity. 

Your Honours, could I just go for a moment to the considerations actually taken into effect by the Court of Appeal.  We refer to them in our written submissions at page 61.  The relevant part of the Court of Appeal’s reasons, to which this is referring, your Honours, they are in paragraphs [20] to [27] at page 21.  Could I invite your Honours to, in effect, keep that page 21 open.  The comments that we make about them is that the Court of Appeal said, well, it was a busy road, the notice had been up on the busy road for 15 days.  The point we would seek to make, your Honours, is that it should have been there for 30.

CRENNAN J:   Two busy roads, I think.

MR JACKSON:   With respect to the Court of Appeal, it is a really strange conclusion to say because it was a busy road, well, it should have been there for 30 but it was only there for 15, that was okay.

HAYNE J:   Is that a conclusion that turns inferentially upon some understanding of the significance to be attached to the reference to “a person” in 4.1.5A(1)(b), that is, does it turn inferentially upon a conclusion that all those who in fact were interested had a sufficient opportunity?

MR JACKSON:   Your Honour, some consideration of that kind appears to underlie the approach taken by the Court of Appeal but that, in our submission, is not the consideration that is contemplated by the section.  True it is that one sees the expression “for a person to exercise the rights”, but the person being referred to there, your Honour, is any person who might have exercised the rights and there is no limitation on a person.  One can understand if one is speaking about the letters that the person to whom letters have to be addressed are indicated.  One can see, your Honours, the advertisement in the paper is directed to, presumably, all persons and then when one comes to the notice on the land, it is directed to anyone who might be able to provide information or take a view about the matter that should be taken into account.

CRENNAN J:   Was there any suggestion that any particular person was deprived of an opportunity, someone who wished to make a submission?

MR JACKSON:   No, your Honour, there was not evidence that a particular person had been deprived of the opportunity.  The point I was going to make, your Honours, is that to adopt that as the criterion is itself, if we may say so, with respect, something that is erroneous.  May I come to that, your Honours.  We would say the purpose of provisions like this have been referred to in a number of decisions.  May I take your Honours very briefly to the passages.  One is the case behind tab 14, Scurr v Brisbane City Council (1973) 133 CLR 242 at page 251.

HAYNE J:   I am sorry, Mr Jackson.  I am lagging.  Which bundle am I looking at?

MR JACKSON:   I am sorry, your Honour.  It is the applicant’s materials. 

HAYNE J:   Yes.  And tab?

MR JACKSON:   Tab 14, your Honour.  If one goes to the bottom of page 251 setting out the then notice provision, Justice Stephen, who gave the main judgment in the matter, said:

This section secures the attainment of two important goals.  It provides the council with the views of those who oppose an application –

Your Honours will see that developed through the remainder of that paragraph on page 252 and also the next paragraph.  Then, your Honours, on the same page, 252, at about point 7 on the page, the sentence commencing, “Accordingly inadequacy”.  Could I refer next, your Honours, to Pioneer Concrete(Qld) Pty Ltd  v Brisbane City Council (1980) 155 CLR 485 behind tab 15. At page 518, Justice Wilson, your Honours will see at about point 6 on the page, said:

One may never know whether a proper application, and adequate advertisements, would have alerted other citizens who would have exercised their right to participate as objectors.

Your Honours will see that passage referred to in Helman v Byron Shire Council (1995) 87 LGERA 349 in the New South Wales Court of Appeal behind tab 16, in particular, your Honours, in the discussion by Justice Handley at page 358 at about point 4 on the page where he said:

The leading case in this area is undoubtedly Scurr v Brisbane City Council –

Then about two-thirds the way down the page it says:

In my opinion Scurr’s case is directly relevant –

And it says at the bottom of that page:

Compliance would have enabled relevant and better informed objections to be lodged.  While the decision‑maker had the benefit . . . the objectors had no opportunity –

speaking on the particular facts.  You will see, your Honours, at about point 4 on page 359 the reference to Pioneer Concrete and a passage from Justice Wilson there quoted.  Then at the top of page 360 the passage I referred your Honours to earlier, “One may never know” et cetera.  His Honour says immediately following that:

The problem in these cases is that the Court has no means of knowing whether other objectors may have come forward and other objections been raised had there been proper compliance with the statutory requirements.  In my opinion –

et cetera.  More recently, the Queensland Court of Appeal in Ramsgrove Pty Ltd v Beaudesert Shire Council (2005) 143 LEGRA 43, which is behind tab 17, at page 50, paragraph 28, Justice Keane said:

The purpose of the notification requirements in s 3.4.4(1)(b) of the IPA is discernible from s 3.4.1 of the IPA which provides that notification of an application serves the purpose of giving members of the community “the opportunity to make submissions, including objections, that must be taken into account before an application is decided”.

That purpose, of course, is referred to in the statutory provisions at the commencement of the notification stage and also in the part of the commencement of the Act itself to which I referred your Honours earlier.  Your Honours, the suggestion that it is for us to bring along persons who might have objected is one which, in our submission, should not be sustained.  As was said by the dissenting judge in the present case, “What are we to do?  Go out and advertise for people who might have objected or might have made a submission or put up people?”  The whole purpose of the provisions is to enable public participation and, your Honours, it is very difficult indeed to say that there has been public participation when the time has been truncated by half.

Your Honours, there is a further question, namely, for how long the notices on the land should be in place.  The relevant provisions are behind tab 4.  They are sections 3.4.5 and 3.4.6(1).  Your Honours will see that in 3.4.5 the notification period has to be not less than 15 days.  It is not to include business days between 20 December and 5 January in the next year, and 3.4.6(1), the notice has to remain there for all the period.  Your Honours, we contend, as we have set out in paragraph 29 of our submissions in‑chief at page 63, that the meaning of the provisions is that the notices have to remain on the land for a period which includes at least 30 business days. 

They have to remain on the land for the entire period, including the period of 15 or 30 days, as the case may be, until the number of business days for which they have been in place reaches 30.  Your Honours, if that conclusion is correct, the notices on the land were in place for a significantly lesser period than the proportion of the total period for which they should have been on display.  That is referred to by the Court of Appeal at page 23 in paragraph [31] and they appeared not to accept that.  Your Honours, could we say that the provisions utilising the same method of computation of the notification period continue under the Sustainable Planning Act 2009. The relevant provisions are set out in the second respondent’s list in tab 5.

Could we just say this, your Honours, in relation to the utility of entertaining the appeal.  If special leave is granted and the appeal is successful, the applicant’s application will not be allowed to proceed.  It would have to apply again and abide by the law in force at the time of application.  The points made by our learned friends, the second respondents, at page 84 in paragraph 21, that the new application period, because of the.....would be now 15 days.  Your Honours, so what, we would submit?  It does not follow at all that the only persons making submissions on such an application would be those who did so before in the truncated period.

CRENNAN J:   Just on utility, Mr Jackson, do you want to say anything about paragraph [37] on application book 24?  It is the point about further opportunity to ventilate concerns about the wetlands.

MR JACKSON:   Your Honour, it is true that if there is a hearing on the merits and the development, then the issues that arise can then be agitated. 

The question though is whether such an application should be allowed to go ahead at all.  It could only go ahead if there was an order made excusing the non‑compliance.  The power to make an order only existed in the circumstances to which I have referred.  Absent the existence of that power, then the application was finished.  Your Honours, the wetlands seem now to have been removed or very substantially removed.  Your Honours, I see my time is up.

HAYNE J:   Yes, thank you, Mr Jackson.  Yes, Mr Hughes.

MR HUGHES:   If it please the Court, could I commence by handing up a very succinct judgment of this Court in 1991 refusing special leave in Courtney Hill.

HAYNE J:   What are we meant to take out of that?

MR HUGHES:   Just some principles about the application of special leave applications with respect to town planning cases.  It is very short.  It is about half a page.

HAYNE J:   Yes.

MR HUGHES:   If it please the Court, there are, in our submission, five reasons why this is not an appropriate candidate for an application for special leave.  They relate to these matters.  Firstly, there is no fundamental question of any general principle involved in this case, second, there is no important question of any statutory construction.

HAYNE J:   We have read your submissions, Mr Hughes.  What do you say about Mr Jackson’s chief point, at least as I understood it, how is it possible to say there has not been a substantial restriction of opportunity?

MR HUGHES:   Your Honour, one starts from the premise that the provision that we are examining, section 4.1.5A, only ever comes into play when there has either been a non‑compliance or only a partial compliance.  So one is always going to be in a situation where one is examining the situation where there has not been a proper compliance with the requirements of the Act.  The purpose of the relevant provision, in our submission – our learned friend, Mr Jackson, concentrated on the purposes of the public notice provision. 

This case is about the purpose of the excusatory provision, 4.1.5A.  The purpose of that provision, in our respectful submission, is to ensure that the proper administration of the legislative requirements with respect to town planning is not inflexible but involves the capacity to relax or excuse requirements in appropriate circumstances.  Now, whether the circumstances are appropriate in this case will be the result of investigation by the court.  The discretion under section 4.1.5A is invested in the specialist court and, as many authorities in this ‑ ‑ ‑

HAYNE J:   Arguments from the premise of specialised courts do not ordinarily play particularly well here, Mr Hughes, but do go on.

MR HUGHES:   I am grateful for that, your Honour.  Certainly one of the reasons for handing up the decision in Courtney Hill was to illustrate that with respect to planning cases that was a different situation.  Your Honour, I am trying to come to the point, to answer your Honour’s question, the reality is that the discretion to excuse is invested in the court, a judicial body, and there is plenty of authority in this jurisdiction to the proposition that one ought not ordinarily interfere with that discretion.

HAYNE J:   The question is, what is your answer to the proposition that there has been here a substantial restriction of opportunity?

MR HUGHES:   It is a question of fact for determination by the tribunal of fact and whether – and I have done the best I can to explain that – the relevant section only ever comes into play in circumstances when there has been some failure.  Obviously, as an intellectual exercise, any non‑compliance is going to lead to the possibility, at least in a hypothetical sense, that there might be some restriction, but in the circumstances of this case the legislature has not sought, for example, to say that somehow the period of time, the temporal requirement with respect to the period of time, is such that it cannot be forgiven, or a failure to comply with it cannot be forgiven.  Each matter, in our respectful submission, must be dealt with on the facts of the individual case.

HAYNE J:   The other point upon which I would wish to hear you is, what do you say about utility?

MR HUGHES:   Your Honour, we say that there is no utility in allowing the appeal.  Firstly, we embrace what the second respondent said, that under the current legislation, the Sustainable Planning Act, and under the present facts the fresh public notice would only be for 15 days in any event.  We would add also, in terms of utility of the appeal in general, that the current legislation does not require as a prerequisite of the exercise of the excusatory power this exercise that the court must be satisfied that rights have not been substantially restricted. 

There is one other matter that we need, in our respectful submission, to emphasise and that really relates to the question of the absence of any injustice in this case.  As the material indicates, the applicant and the second respondent are competing shopping centre developments in the relevant

locality.  The applicant has the opportunity to pursue its appeal on the merits if it does not get special leave and its appeal against the approval granted by the Council to the second respondent.

The applicant has certainly demonstrated sufficient intellectual and financial capital to fully investigate matters such as that referred to in paragraph [37] of the judgment of the Court of Appeal which Justice Crennan referred to and certainly has the capacity to bring evidence before the court of the concerns, particularly adverse concerns, of any member of the public.  So, in our submission, there is simply no injustice.  This is not a case whether there are questions of injustice.  Unless there is any specific matters the Court wish to hear from, those are my submissions.  I am conscious that there is another respondent.

HAYNE J:   Thank you, Mr Hughes.  Yes, Mr Gore.  Do you wish to add anything?

MR GORE:   Just a couple of things, your Honours.  In relation to the first question raised by your Honour Justice Hayne in relation to the substantial restriction point, if the Court could go to page 21 of the application book, in paragraph [20] on that page the Court of Appeal begins its discussion of why it considered that there was evidence which was capable of supporting a finding made by the primary judge and, importantly, in the third line the court observed that:

The notices were in place for the 15 business days which the IP Act regards as the appropriate length of notice for most development applications.

Then if your Honours go to page 80 of the application book your Honours will see in paragraph 10 of our summary of argument that we pick up that point and we submit that:

Because the public notice given actually complied with the 15 business day period which the Information Privacy Act postulated as the appropriate length of notice for most development applications, a finding as to whether or not the non‑compliance relating to the extra period required by the wetland issue “substantially restricted” the opportunity for persons to exercise the rights conferred by the Act was very much a question of value judgment, in respect of which reasonable minds might differ.

Your Honours, we would make the observation that despite the comprehensive submissions by the applicant in its original submissions and in its reply, there is no challenge to that introductory submission which we have made and it is material to your Honour’s question.  It does therefore

raise for consideration the other matters which were addressed by both the primary judge and the Court of Appeal as to whether the extra time that was missed would in truth have made any difference and, to borrow a phrase used by your Honour Justice Hayne, the effect of the conclusion of the courts below is that there was in the circumstances a sufficient opportunity for the persons to lodge submissions so that there was in truth no substantial restriction of the opportunity for persons to exercise those rights.

It also, your Honours, focuses attention on the reason for the extra 15 days, which was the wetland issue, and in that regard it was material that the environmental protection agency, which was the referral agency that in effect had jurisdiction over that aspect of the matter from an environmental perspective, had been given proper notice of the development application.  It had in fact given a response which was not entirely favourable to the development application and despite that, it appeared on the hearing of the matter and indicated – not appeared, it indicated through writing that it had no concerns about the shorter public notice period.  The courts below were entitled to place significant weight on the attitude of the responsible agency.  That appears, your Honours, from the summary of the facts in the dissenting judgment of Justice Atkinson in paragraphs [43] to [46] at pages 25 to 26 of the application book and in paragraph [29] in the decision in the majority at page 23 of the application book. 

That also makes relevant the utility question, the land is no longer mapped as containing a wetland.  The very gravamen of the applicant’s contention against the respondents here is that there ought to have been an extra 15 days advertising because of the wetland.  Now that the wetland is no longer mapped and, as it is now accepted, there is no challenge to the proposition in our material that only 15 business days would be required, there is no utility in requiring further advertising for precisely the same period that in fact occurred in the circumstances of this case.  Just briefly on some of the other matters that have been raised, firstly, your Honours, there was no reversal of the onus of proof ‑ ‑ ‑

HAYNE J:   I do not think we need trouble you about those other aspects of the matter, Mr Gore.

MR GORE:   Thank you, your Honour.

HAYNE J:   Yes.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, first of all, our learned friend refers to an observation in the Court of Appeal that 15 days is the norm and therefore 30 days is unusual.  If your Honours go to tab 10 in our materials ‑ ‑ ‑

HAYNE J:   I would have thought, myself, Mr Jackson, that the designation of one as a norm and the other as exceptional is a difficult proposition to maintain.

MR JACKSON:   Of course, your Honour.  That is what I was going to say.  I was going to say, your Honours, this.  The reference to it as being the ordinary case is erroneous.  It is wrong, your Honour.  It is the wrong starting point.  You will see, if you go behind tab 10 of our materials, that a very significant range of matters or range of cases fall within the 30 day notification period.  Your Honours, that is the first point I would seek to make.  The second is that the views of the Environment Protection Agency, or its officers, cannot alter the contravention.  The primary judge was quite right in what he said in paragraph [4] of his reasons at page 7, namely, that that was irrelevant, in effect.

Your Honours, if I could come then to my learned friend, Mr Hughes, his argument was that the purpose being looked at was that of section 4.1.5A.  We accept that, but it has to be exercised by the Planning and Environment Court in the way which is referred to in the earlier provisions of the Act.  Could I take your Honours back for just a moment to tab 9 of our materials and in tab 9 your Honours will see that in section 1.2.2 it speaks of the circumstance where:

a function or power is conferred on an entity –

which includes the Planning and Environment Court –

the entity must –

(a)unless paragraph (b) or (c) applies – perform the function or exercise the power in a way that advances this Act’s purpose –

That concept is defined by 1.2.3(1) and the relevant part of that is on the next page:

(f)providing opportunities for community involvement in decision making.

That is the approach that has to be taken.  There has to be a preference given and to the extent to which there is a preference available, to ensuring community involvement.  That is the very thing that section 4.1.5A requires as the criterion to be satisfied before a power can be exercised to allow the matter to proceed notwithstanding the non‑compliance.  Your honours, so far as the fact that we are a competitor is concerned, so too, as we have said in our written submissions, was Mr Scurr in Scurr v Brisbane City Council.

HAYNE J:   It does not come as a shock to me that there may be some economic interests at stake, Mr Jackson.  Perish the thought.

MR JACKSON:   Yes, of course.  In fact, your Honour, as best as I can recall, Mr Scurr, I think, received some public recognition for his activity in that regard.

HAYNE J:   Thank you, Mr Jackson.

Having regard to the repeal of the legislation which is at issue in this matter and its replacement by the Sustainable Planning Act 2009 (Qld) and having regard also to the altered designation of certain land as wetland, we are not persuaded that there is sufficient utility in this Court determining the issues which the applicant seeks to agitate about the construction of the former Act as would warrant a grant of special leave. It is not in the interests of justice generally or in the circumstances of the particular case that there be a grant of special leave to appeal. Special leave is accordingly refused.

MR HUGHES:   If it please the Court, I ask for costs on behalf of the first respondent.

HAYNE J:   You too, Mr Gore.

MR GORE:   Yes, your Honours.  Could I draw to attention at page 84 ‑ ‑ ‑

HAYNE J:   Yes, this notion of indemnity costs?

MR GORE:   Yes, your Honour.

HAYNE J:   Why?

MR GORE:   Your Honour, because we gave notice before the application for leave ‑ ‑ ‑

HAYNE J:   So.

MR GORE:   It related to the utility point.  The land was no longer mapped.  There is nothing I want to add to what is in the written submissions, your Honours.

HAYNE J:   Yes.  Can you resist an order for ordinary costs, as distinct from indemnity costs?

MR JACKSON:   No, your Honour.  If the Court were minded to grant indemnity costs, I would certainly wish to say something about that.

HAYNE J:   Of course, yes.  Will be refused with costs and lest there be doubt about that, that is not an order for indemnity costs.

AT 11.08 AM THE MATTER WAS CONCLUDED