No 2 Pitt St Pty Ltd v Wodonga Rural City Council (No. 4)
[1999] VSC 322
•6 September 1999
| SUPREME COURT OF VICTORIA VALUATION COMPENSATION & PLANNING LIST | |
| Send for Reporting | |
| Not Restricted | |
No. 4685 of 1999
| NO. 2 PITT STREET PTY. LTD. (ACN 008 624 771) | Plaintiff | |
| V | ||
| WODONGA RURAL CITY COUNCIL | First Defendant | |
| And | ||
| WEATHERALLS WODONGA HOTEL PTY. LTD | Second Defendant | |
| JUDGE: | Balmford, J. | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 9-11, 16, 17, 21 & 22 June 1999 | |
| DATE OF JUDGMENT: | 6 September 1999 | |
| CASE MAY BE CITED AS: | No 2 Pitt St Pty Ltd v Wodonga Rural City Council (No. 4) | |
| MEDIA NEUTRAL CITATION: | [1999] VSC 322 | |
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PLANNING – Planning permit granted to second defendant by first defendant – Plaintiff seeks to challenge the validity of the permit – Standing and commercial interests of the plaintiff – Whether subject land was properly described in the application and permit – Whether a permit must be obtained from the Minister of Planning and Local Government in relation to the use or development of Council land.
Local Government Act 1989 (Vic); ss 189, 223
Planning and Environment Act 1987 (Vic); ss 6(2)(ka), 47, 52, 96(2)
Planning and Environment Regulations
Alphapharm Pty Limited v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250
Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49: 194 CLR 247
Bycon Pty Ltd v Moira Shire Council [1998] VSC 25
Countrywide Retail Management Pty Ltd v Yarra Ranges Shire Council (1998) 21 AATR 47
De Poltieri v City of Prahran [1959] VR 760
Marock Pty Ltd v Billjoy Pty Ltd [1981] VR 413
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) FCR 50
Scurr v Brisbane City Council (1973) 133 CLR 242
Sinclair v Mining Warden at Maryborough (1975) CLR 473
The State of South Australia v Tanner (1989) 166 CLR 161
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| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr SR Morris QC with Mr S O’Bryan and Ms SM Brennan | Coadys |
| For the First Defendant | Mr EN Magee QC with Mr JH Gobbo | Maddock Lonie & Chisholm |
| For the Second Defendant | Mr H McM Wright QC with Mr MA Dreyfus | Coltmans Price Brent |
HER HONOUR:
Introduction
This proceeding, as well as number 4687 of 1999 (“the Administrative Law Act proceeding”), arises out of the following circumstances, outlined only briefly at this stage. The plaintiff (“Pitt Street”) is the owner of the Birrallee Shopping Centre (“Birrallee”) in West Wodonga. On 11 March 1998 the first defendant (“the Council”), as the responsible authority for the Wodonga Rural City Planning Scheme (“the planning scheme”), granted a planning permit for extensions to Birrallee, which extensions included a cinema complex. On 12 October 1998 the second defendant (“Weatheralls”) applied to the Council for a planning permit for a cinema complex on certain land in central Wodonga, adjacent to the Wodonga Plaza Shopping Centre.
The evidence set out in the witness statement adopted by Mr Stevens, a director of Pitt Street, which I accept, was that the commercial viability of the extensions to Birrallee hinges on the inclusion of the cinema complex because of the crucial anchor role played by a cinema in a shopping centre without a discount department store; that if the Birrallee cinema development has to be abandoned because the Wodonga Plaza cinemas proceed, there is a serious risk that it would not be economically viable for Pitt Street to proceed with its extensions involving the upgrading and improvement of the shopping facilities at Birrallee; and that the overall level and nature of the shopping and entertainment facilities for the residents of Wodonga and Albury would thereby be reduced. Pitt Street has accepted the tender for construction of the shopping centre incorporating the cinema complex and has completed preliminary stormwater drainage works. While the evidence of Mr Stevens was challenged in cross-examination, no evidence was called by the Council in rebuttal of his views, which I accept.
Pitt Street objected to the application made by Weatheralls. The Council rejected the objection made by Pitt Street and on 1 December 1998 granted a permit No 98/158 (“the permit”) to Weatheralls to construct a cinema complex on certain land in central Wodonga, some of which was owned by the Council. The Council has published a notice of intention to sell certain relevant land. Pitt Street has brought this proceeding and the Administrative Law Act proceeding challenging the validity of the permit and of the proposed sale of the Council owned land. The two proceedings were, by a consent order made on 4 June 1999, heard together, but not consolidated. The judgments in both proceedings should be read together.
Mr Wright, senior counsel for Weatheralls, which is a party only to this proceeding and not to the Administrative Law Act proceeding, announced his appearance with Mr Dreyfus. He indicated to the Court their view that, as no wrong-doing was alleged against their client, their active participation in that proceeding would not be of assistance to the Court, would involve their client in considerable expenditure and would unnecessarily prolong matters. He informed the Court that his client’s firm instructions were that it had no intention at all of acting without a valid permit. He sought the leave of the Court to withdraw from the Bar table with his junior, reserving their rights to attend if something arose which affected the position of their client, and ultimately to address the Court on the matter of costs. This leave was given, and save that junior counsel for Weatheralls attended the Court on one occasion in the context of an amendment of the statement of claim, they took no further part in the proceedings.
This proceeding was commenced by writ. The prayer for relief contained in the further amended statement of claim filed on 11 June 1999 reads as follows (with some elaboration taken from earlier provisions of the statement of claim added in square brackets):
And the Plaintiff Claims:
1.A declaration that Permit 98/158 granted pursuant to the Wodonga Rural City Planning Scheme dated 1 December 1998 is void and of no lawful effect.
2.A declaration that the second defendant must obtain a permit from the Minister for Planning and Local Government before carrying out any use or development on the land or any part of the land situate at and known as 8-14 Smythe Street, Wodonga, and more particularly described in Certificates of Title Volume 7313 Folio 569, Volume 8071 Folio 034 and Volume 8098 Folio 756 [“the Council land”] prior to the sale of the said land or any part of the said land by the first defendant.
2A.A declaration that the second defendant must obtain a permit for use of the land at 62-64 Elgin Street for a carpark associated with the Wodonga Plaza Cinema Development before commencing such use.
2B.A declaration that the second defendant must obtain a permit for use of the swimming pool lot for a cinema and for construction of a building or work of a permanent character on the swimming pool lot before commencing such use or development.
3.An injunction restraining the second defendant through its officers, agents, employees or howsoever otherwise from doing or performing any act or taking any step to commence use or development of the Hotel land [being the land situate at and known as 6 Smythe Street, Wodonga, more particularly described in Certificate of Title Volume 7320 Folio 964] and the Council land [being the land situate at and known as 8-14 Smythe Street, Wodonga, more particularly described in Certificates of Title Volume 7313 Folio 569, Volume 8071 Folio 034 and Volume 8098 Folio 756] in reliance on the said permit.
4.An injunction restraining the first defendant from proceeding with the sale of the land situate and known as Lots 5, 6 and 7 LP 183838 and an area of 81.38 m2 from the western boundary of the swimming pool site until the statutory requirements of the Local Government Act 1989 have been met.
5.An injunction restraining the first defendant from proceeding with the sale of the land situate and known as Lots 5, 6 and 7 LP 183838 and an area of 180 m2 of Plan of Consolidation PC35416E shown on the proposed plan of subdivision PS425584A until the statutory requirements of the Local Government Act 1989 have been met.
It was convenient to deal first with the Administrative Law Act proceeding, judgment in which has been delivered this day. In that proceeding I indicated my intention to order that the decision of the Council to reject the objection of Pitt Street be quashed, and that it be directed that the permit be amended to a notice of decision to grant a permit, effective on the date of the making of the orders. The question of the appropriate orders is considered further at the conclusion of the reasons for judgment in both proceedings.
The grounds on which Mr Morris relied in support of the claim for a declaration that the permit was void are, summarised very briefly:
that the land was misdescribed in the application and the permit;
that the Council failed to refer the application to the Albury-Wodonga Development Corporation;
that the Council failed to accord natural justice to Pitt Street in rejecting its objection;
matters relating to other objections to the grant of the permit, and conditions attached to the permit.
Standing
Mr Morris, for Pitt Street, submitted that Pitt Street had standing to bring this proceeding. The grounds of that submission were first, that the matters described in paragraph 2 above gave Pitt Street a special interest in the Wodonga Plaza cinema development; and second, that Pitt Street’s private rights to object, to have its objection taken into account, and to appeal in relation to its objection had been affected by the Council’s rejection of its objection, described in paragraph 3 above. On that point he relied on the passage from the judgment of Barwick CJ in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 478, where His Honour said:
The appellant, having been an objector before the warden, had a right to have the hearing of the application conducted, and the warden consider the application and the objections and make his recommendation, according to law. If the application has not been so heard and determined, he is a proper party to seek a mandamus to compel the hearing to be had according to law.
In my judgment in the Administrative Law Act proceeding, I have set out the submissions of Mr Morris, which I there accepted, to the effect that it was not the intention of Parliament in the Planning and Environment Act 1987 (“the Planning Act”) to shut out absolutely objections based on commercial considerations. Those submissions are equally relevant to the basis on which it can be said in this proceeding that Pitt Street has a special interest in the Wodonga Plaza cinema development.
Mr Morris also relied on the statement of Mason J in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 547 as authority for the proposition that in considering the question of standing the Court should look at the nature of the relief claimed, rather than the grounds upon which that relief is sought. His Honour said:
Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests (as to which see New South Wales Fish Authority v Phillips [1970] 1 NSWR 725) and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v Western Australian Museum (1977) 138 CLR 283 at 327-8:
The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another.
In the same case, Aickin J said at 511:
The “interest” of the plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed . . . [T]he plaintiff’s interest should be one related to the relief claimed in the statement of claim.
In Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1988] HCA 49 Gaudron, Gummow and Kirby JJ, after citing that passage, said at [48]:
Upon the true construction of its subject, scope and purpose, a particular statute may establish a regulatory scheme which gives an exhaustive measure of judicial review at the instance of competitors or other third parties. An example is the special but limited provision by the legislation considered in Alphapharm Pty Limited v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 for judicial review of successful applications for registration . . . the circumstance that the plaintiff conducts commercial activities in competition with those which it seeks to restrain is not necessarily insufficient to provide it with a sufficient interest in the subject matter of the action.
And from [50] to [53]:
. . the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject-matter. Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive, procedural stipulation.
. . . The primary judge found that because the parties would be operating in substantially the same limited market it was highly probable that, if not restrained from commencing and concluding their activities, the appellants would cause severe detriment to the business of the respondents. That, in the circumstances of this litigation, gave the respondents a sufficient special interest to seek equitable relief.
The appeal should be dismissed with costs.
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) FCR 50 at 68-69 and 84-85 was cited by Gaudron, Gummow and Kirby JJ in Bateman’s Bay at [48] in their footnote reference to Alphapharm. In Right to Life Association, Lockhart J said at 68-69 that the Full Court had held in Alphapharm that the corporation lacked standing because its commercial interests were not relevant to the public interest to which the relevant legislation was directed. At 84-85, Gummow J said that in Alphapharm the purposes which Parliament sought to advance by the statute were not those with which the applicant was concerned and seeking to advance by the processes of judicial review.
In that context, I would adopt the interesting passage to which Mr Morris referred me from the decision of the Administrative Appeals Tribunal, constituted by Mr Byard and Ms Monk, in Countrywide Retail Management Pty Ltd v Yarra Ranges Shire Council (1998) 21 AATR 47 at 53:
We often hear complaints that an objector has a commercial interest in delaying or obstructing a potential competitor. It seems to be implied that the submissions of such an objector must necessarily lack merit. That proposition is illogical and frequently untrue. A retailer, or a lessor or a developer of retail premises in Lillydale can have a legitimate concern in relation to the sound planning of Lillydale and its town centre. Such a legitimate interest is likely to be shared by all retailers whether direct competitors with the new proposal or not; and also by residents, other users of the town centre and the public generally. . . . an objector who raises valid planning considerations [in the Tribunal] can expect to have them seriously considered and weighed, along with other evidence and submissions, on their merits. Over the years the community has been saved from bad proposals because of the action of objectors, including objectors who have had commercial interests. Other proposals have been considerably improved as a result of objections and objectors’ appeals.
Pitt Street is a landowner in Wodonga and must share the interest of other Wodonga landowners in good planning under the Planning Act, and in the proper performance by the Council of its responsibilities under the Planning Act and the Local Government Act 1989 (“the Local Government Act”).
For reasons which are set out in my judgment in the Administrative Law Act proceedings, and which need not be repeated here, I do not consider that the Planning Act, in the context of the disallowance of the objection to the permit, establishes, as was the case in Alphapharm, a regulatory scheme which excludes other forms of judicial review.
On the basis of the material cited above, I am satisfied that Pitt Street has standing to bring all of the claims set out in the writ.
The relevant land
The comprehension of parts of this judgment will be assisted by the attached plan of the relevant area of central Wodonga, which may be decoded by reference to the following legend. The statements as to occupation are based on aerial photographs in evidence, and on a Council report of 12 October 1998, which was also in evidence.
AThe whole of the land in Certificates of Title Volume 8614 Folio 326 (as to four equal undivided fifth parts or shares) and Volume 8827 Folio 740 (as to one equal undivided fifth part or share) being Crown Allotment 2 [and Crown Section 2] Section O Township and Parish of Wodonga
Known as part of 51-53 Elgin Street
Owned by Weatheralls and occupied by a hotel and associated activities
Zoned commercial under the planning scheme
BThe whole of the land in Certificate of Title Volume 8079 Folio 999 being part of Crown Allotment 1 Section O Town and Parish of Wodonga
Known as part of 51-53 Elgin Street
Owned by Weatheralls and occupied by a hotel and associated activities
Zoned commercial under the planning scheme
CThe whole of the land in Certificate of Title Volume 7320 Folio 964 being part of Crown Allotment 1 Section O Town and Parish of Wodonga
Known as 6 Smythe Street
Owned by Mr Weatherall, a director of Weatheralls, and apparently not occupied by buildings associated with the hotel
Zoned commercial under the planning schemeDPart of the land in Certificate of Title Volume 7313 Folio 569 being Lot 7 on Plan of Subdivision No. 18383
Known as 8 Smythe Street
Owned by the Council
Zoned commercial under the planning scheme
D1 occupied by part of a building which also partly lies on E1
D2 occupied as part of the swimming pool surrounds
D1 and D2 are separated by a cyclone fence
EPart of the land in Certificate of Title Volume 7313 Folio 569 being Lot 6 on Plan of Subdivision No. 18383
Known as 10 Smythe Street
Owned by the Council
Zoned commercial under the planning scheme
E1 occupied by part of a building which also partly lies on D1
E2 occupied as part of the swimming pool surrounds
E1 and E2 are separated by a cyclone fenceFPart of the land in Certificate of Title Volume 8071 Folio 034 being Lot 5 on Plan of Subdivision No. 18383
Known as 12 Smythe Street
Owned by the Council
Zoned commercial under the planning scheme
F1 occupied by a building
F2 occupied as part of the swimming pool surrounds
F1 and F2 are separated by a cyclone fence
G1 The whole of the land in Certificate of Title Volume 8098 Folio 756 being part of Lot 4 on Plan of Subdivision No. 18383
Known as 14 Smythe Street
Owned by the Council
Zoned commercial under the planning scheme
Occupied by a small building
G2 Part of the land in Certificate of Title Volume 8071 Folio 034 and the balance of Lot 4 on Plan of Subdivision No. 18383
Owned by the Council
Zoned commercial under the planning scheme
Occupied as part of the swimming pool surrounds
G1 and G2 are separated by a cyclone fenceHThe land contained in Plan of Consolidation 354165E
Owned by the Council
Occupied by the swimming pool and part of its surrounds
Reserved for open space (recreation reserve) under the planning scheme
Conveniently referred to here as “the swimming pool lot”
H1 has an area of 180m2
In summary, A, B and C are owned or controlled by Weatheralls; D, E, F, G and H are owned by the Council; and the swimming pool and its surrounds occupy D2, E2, F2, G2 and H. The proposed use and development of the land is of the type which requires a permit.
The claim that the permit is void and of no lawful effect
The principal ground for the claim that the permit is void and of no lawful effect arises from the variations in the descriptions of the land in four separate documents, namely:
·the application for the permit made by Weatheralls to the Council;
·the plans lodged in support of that application;
·the published notice of application; and
·the permit itself.
In the application for the permit lodged on 12 October 1998 pursuant to section 47 of the Planning Act on the standard form prescribed by the Planning and Environment Regulations 1998 (“the Regulations”), which came into operation on 3 February 1998, the box marked “Give the address and title particulars of the land, and attach a sketch plan” was completed thus:
Vol Folio
Smythe Street 7320 964
Wodonga 3690 8827 7408614 326
That is a description of the land shown on the attached plan as A and C, the northernmost and southernmost of the three properties owned or controlled by Weatheralls. The box on the form marked “Describe the way the land is used now” was completed “Function centre, bottle shop, hotel, drive through bottle shop, restaurants gaming venue”. All of these are activities associated with the hotel.
The plans lodged in support of the application are sketches only and show no measurements, title boundaries or lot numbers, although counsel informed the Court that they can be scaled. They show a number of existing buildings, and do not define the land the subject matter of the application. However, it is clear from those plans that the proposed development is intended to cover a great deal of land to the south of the properties controlled by Weatheralls, including D. Whether it is intended to include A and B, the properties currently occupied by the hotel, is not clear, although it would appear so from the description in the application of the present use, set out in the previous paragraph.
The notice of application published in the Border Mail, a newspaper generally circulating in the Wodonga area, on 31 October 1998 pursuant to section 52(1)(d) of the Planning Act states:
The land affected by the application is located at: 10-14 Smythe Street, Wodonga.
That is a description of the land shown on the attached plan as E, F and G, three of the properties owned by the Council. The notice went on to notify readers of their rights to look at the application at the City Office and to object.
The permit itself reads opposite the heading “Address of the Land”: “10-14 Smythe Street Road Reserve and 51-53 Elgin Street, Wodonga”. If a comma is to be read as appearing between “Smythe Street” and “Road Reserve”, that is a description of the land shown on the attached plan as E, F, G, Smythe Street, A and B; namely, three of the properties owned by the Council, Smythe Street itself, and two of the three properties controlled by Weatheralls.
Section 47 of the Planning Act requires an application for a permit to be made in accordance with the Regulations, and Regulation 16 relevantly reads:
16. An application for a permit under section 47(1)(a) of the Act must be made in writing to the responsible authority and must—
(a) state the name and address of the applicant; and
(b)indicate clearly the land affected by the application by—
(i) stating the address of the land; or
(ii) stating the title particulars of the land; or
(iii) including a plan showing the land; or
(iv) any combination of these; and
(c)state clearly the use, development or other matter for which the permit is required; and
(d) describe the existing use of the land; and
. . .
(f) state who owns the land.
Section 52(1) of the Act requires the responsible authority to give notice of an application, in a prescribed form—
(a) to the owners . . . and occupiers of allotments or lots adjoining the land to which the application applies unless the responsible authority is satisfied that the grant of the permit would not cause material detriment to any person; and
(b) to a municipal council, if the application applies to or may materially affect land within its municipal district; and
(c) to any other person to whom the planning scheme requires it to give notice; and
(d) to any other persons, if the responsible authority considers that the grant of the permit may cause material detriment to them.
Section 52(2) provides that a notice of application under sub-section (1)(d) may be given by, inter alia, “publishing a notice in newspapers generally circulating in the area in which the land is situated”. The first requirement in the form prescribed by regulation 19 for a notice of application under section 52(1) is to “insert the location of the land”. The regulation also requires notification to readers of their rights to look at the application at the City Office and to object.
Regulation 24 relevantly provides that a permit must be in the form of Form 4, which requires the inclusion of “the address of the land”.
The plaintiff claims that the land referred to in the application for a permit was not the land referred to in the notice of application or in the permit; that the land referred to in the notice of application was not the land referred to in the permit; and that the Council acted unlawfully in granting the permit for land for which an application had not been received and for which no notice of application had been given.
Taking the last point first, I was referred to a number of authorities as to the effects of defects of various kinds in notices of application or analogous documents under planning legislation in Victoria and other jurisdictions. This is clearly one of those areas where each case turns on its own circumstances.
The circumstances of the present case are:
The published notice of application describes the land as being only the land shown on the attached plan as E, F and G, while the actual permit as issued affects E, F, G, Smythe Street, A and B, although the application refers only to A and C, and the plans lodged with the application show the land intended to be affected as extending over B and D.
The published notice of application describes the land by reference to street numbers, without making clear that much of the land to the rear of the buildings visible at the front of the properties described by those street numbers is actually occupied by part of the swimming pool surrounds.
The published notice of application informs readers of their rights to look at the application itself and to object.
A person looking at the application would have found the various inconsistencies described above.
In Marock Pty Ltd v Billjoy Pty Ltd [1981] VR 413, Tadgell J was concerned with what he found to be merely an application for a permit to “use” land for a particular purpose, on the basis of which the Town Planning Appeals Tribunal had issued a permit to “use and develop” the land for a relevant purpose. His Honour said at 417:
The question, of course, is not what the applicants subjectively intended their application to mean but what it should be regarded as conveying to those who were or might be supposed to be concerned to ascertain the nature of the application, either for the purpose of dealing with it or objecting to it.
That passage, which I would, with respect, adopt, is as applicable to the published notice of application as to the application itself.
In Scurr v Brisbane City Council (1973) 133 CLR 242, the High Court was concerned with an advertisement of an application for a planning permit. It found the application to be defective in terms of the relevant Queensland legislation corresponding to section 52(1) and regulation 19. Stephen J, with whom the other members of the Court agreed, said at 254:
. . . the more extensive and elaborate a particular proposal and the greater its likely impact upon local amenity, the greater will be the need for particulars. In the present case the application was one which, if granted, might have a marked effect on the character of the vicinity. I say this without forming any view as to whether that effect would be, on balance, beneficial or detrimental, it is sufficient to note the magnitude of the proposal. Moreover it involved the introduction into the locality of a significant new land use which might well be thought likely to affect local amenity and which would obviously attract large numbers of motor cars into the adjacent road system. Each of these factors should have suggested to a planning authority that here, if ever, was a case in which its statutory obligation to give public notice of the application called for a high degree of particularity in informing that public of the application being made to it.
That passage has manifest relevance to the present case. His Honour continued at 255:
I have already referred to the important part played by the advertising of the making of an application and to the extent to which the working of the statutory provisions depends upon its adequacy; there can, I think, be no doubt but that it is mandatory that there must be a giving of public notice by means of advertisements and that those advertisements must contain some particulars of the application. The legislation employs mandatory language, makes the giving of public notice a condition precedent to any consideration of the application by the council and the section is wholly dependant upon the giving of public notice for the attainment of its objects.
I doubt, however, whether, in the present case, a distinction of any substance exists between a mandatory and a directory interpretation of the requirement that the public notice contain particulars of the application. It is well established that a directory interpretation of a statutory requirement still necessitates, as a condition of validity, that there should be substantial compliance with the requirement; Cullimore v Lyme Regis Corporation [1962] 1 QB 718 provides a modern instance of this. When the requirement is that "particulars of the application" should be given by public advertisement and when once it is accepted that there must be an advertisement which gives some such particulars, it is difficult to discern any distinction between a strict observance of this requirement, such as a mandatory interpretation would call for, and the substantial observance of it, as called for by a directory interpretation. The situation is quite different from that encountered when some formality of time or procedure has been neglected, or when some question of waiver arises, as it did in Edward Ramia Ltd v African Woods Ltd [1960] 1 WLR 86; [1960] 1 All ER 627. That which the statute calls for is not compliance with precise and detailed formalities, some of which might be omitted without affecting substantial compliance; substantial compliance can in this case only be achieved by giving adequate particulars and strict compliance calls for no more than the giving of those same adequate particulars. The particulars of the advertisement will either be sufficient to effect the legislative purpose of giving notice to the public of the application or, if not, will not amount even to a substantial compliance with the statute. I have found the particulars in the present instance to be inadequate and, whether as a result of a mandatory interpretation or of a directory one, the outcome will be the same; the council, or its delegate, here proceeded to a determination of the application without either strict or substantial compliance with relevant statutory requirements and the formation of its proposal to grant the application has thereby been vitiated.
His Honour concluded that the Local Government Court, on appeal by an objector from a refusal of permit by the council, should have rejected the application for the permit, as the council should have done.
In the present case, Mr Gobbo, for the Council, submitted that the proposals to use land in the immediate area for cinemas, to expand the Wodonga Plaza shopping centre and to use Smythe Street for parking had been in the public arena for some years and were well known to those interested. This was evidenced by newspaper cuttings contained in the court book. It was very unlikely that people would be misled by the description of the land in the notice of application. An interested party, on reading the notice of application, would have looked at the full application in the City Office. There was no evidence that any person had been misled by the notice.
However, it is easy to conceive of interested potential objectors who might, for example, have come only recently to Wodonga and therefore been unaware of the history of the proposals; or who, while being aware in principle of the proposal, might have had no knowledge of the details. Further, the full application which a person would have found when taking advantage of the opportunity to look at it in the City Office is itself misleading, given the inconsistency between the formal application and the accompanying plans. To adopt Mr Gobbo’s arguments would be to say that it is not necessary to comply precisely with regulations 16 and 19 where the circumstances of the application are thought to be well-known in the local community. The absence of evidence that anyone was misled by the notice of application cannot be taken as evidence that no-one was misled; nor is such evidence necessary.
Mr Gobbo pointed out that it was within the powers of the Victorian Civil and Administrative Tribunal (“the Tribunal”) to cure the defects in the description of the land in the various documents. However, the effect of the refusal by the Council of Pitt Street’s objection has been, for reasons set out in the judgment in the Administrative Law Act proceeding, to remove from Pitt Street its entitlement to appeal to the Tribunal as of right.
In Marock v Billjoy (paragraph 29 above) Tadgell J said at 419:
It might be objected that the approach I have taken overlooks the possibility that potential objectors might not have been misled. It might be thought that any intelligent potential objector who was enthusiastic enough to have inspected the application documents in the first place would have made it his business to discover what the permit sought was for, that he might have inferred it from the documents, or that he could easily have ascertained it by asking an officer of the responsible authority, even if he had not discovered it from the newspaper notice. But that kind of argument is, in my opinion, beside the point. It might have been possible to infer by speculation or deduction what the application was really about, or to have ascertained what it was about by asking appropriate questions in a likely quarter. Perhaps some people did so, but perhaps others did not. If they did not, I would not blame them. The scheme of the Town and Country Planning Act [a forerunner of the Planning Act] is, I think, such as to discourage speculation and inference about the purpose for which a planning permit is sought and to encourage a plain statement of purpose.
That passage is equally applicable to the present case of misdescription of the affected land.
In the present case, it should be noted that by placing the notice of application in the newspaper, the Council must, by virtue of section 52(1)(d) of the Planning Act, set out in paragraph 24 above, be taken to have considered that the grant of the permit might cause material detriment to persons other than those listed in paragraphs (a), (b) and (c) of section 52(1). Having formed that view, it had an obligation to take the proper steps to bring the proposal to the attention of such persons.
For these reasons, the claim of the plaintiff that the Council acted unlawfully in granting the permit for land which was described neither in the application for a permit nor in the published notice of application succeeds, and I do not propose to consider the other grounds put forward in support of that claim, which are set out in paragraph 7 above. (The natural justice point has already been considered and determined in the context of the Administrative Law Act proceeding.)
Arguments were put as to the discretion of the Court, should it reach that conclusion, to issue the declarations and injunctions sought in paragraphs 2A, 2B and 3 of the prayer for relief, which are set out in paragraph 5 above. Mr Morris conceded that the existence of the Tribunal, as an alternative tribunal to the Court, with jurisdiction to deal with the issues before the Court, was a relevant factor for the Court to take into account. Having said that, he submitted, with reference to authority which it is not necessary to set out here, that in most instances courts would not exercise their discretion to refuse relief, which is otherwise justified, on that ground. He pointed out that on 28 April 1999 I decided that this Court should assume jurisdiction to hear this proceeding on the ground inter alia that there were “special circumstances” in terms of section 52(2) of the Victorian Civil and Administrative Tribunal Act 1998.
However, in the circumstances of this case, a matter to take into account is that, as appears from paragraph 6 above, I have already reached a decision in the Administrative Law Act proceeding, in accordance with the submission of Mr Morris, which will give Pitt Street the opportunity to have those matters considered by the Tribunal. That being so, I consider that the appropriate remedy on this issue is the same as in that proceeding. Accordingly, on this ground also, it is my intention that there be an order directing the amendment of the permit to a notice of decision to grant a permit, effective on the date of the making of the orders, which will then entitle Pitt Street to apply to the Tribunal within the time prescribed for review of the decision to grant the permit. In so far as issues relevant to that review have been decided by the Court, those decisions will, of course, if such an application is made, bind the Tribunal. The other matters raised by Pitt Street in this connection can then be dealt with by the Tribunal.
Sections 96(2) and 6(2)(ka) of the Planning Act and clause 2-4 of the planning scheme
In the claim numbered 2 in the prayer for relief set out in paragraph 5 above, Pitt Street seeks a declaration that Weatheralls must obtain a permit from the Minister for Planning and Local Government before carrying out any use or development on the land or any part of the land shown on the attached plan as D, E, F and G (see the legend in paragraph 17 above) prior to the sale of that land or any part thereof by the Council.
This claim depends on section 96(2) of the Planning Act, which reads, so far as relevant:
(2) A person other than the responsible authority must obtain the consent of the responsible authority and a permit from the Minister before carrying out any use or development on any land . . . owned by the responsible authority for which a permit is required under the planning scheme for which it is the responsible authority unless the planning scheme exempts the land, use or development from this sub-section.
Section 96(1) imposes a similar requirement, with a similar provision for exemption, in the case of a responsible authority proposing to carry out any use or development for which a permit is required under the planning scheme for which it is the responsible authority. Section 6(2)(ka) of the Planning Act provides that:
. . . a planning scheme may—
. . .
(ka)set out classes of land, use or development exempted from section 96(1) or(2);
The submission of the Council is that by virtue of section 6(2)(ka), clause 2-4 of the planning scheme operates to exempt the proposed use or development from that sub-section. That clause reads:
2-4 Applications under Section 96 of the Act
This clause applies to an application for a permit which, except for the provisions of this clause, would be made to the Minister in accordance with Section 96 of the Act.
2-4.1 Exemptions from Section 96(1) and 96(2) of the Act
In accordance with Section 6(2)(ka) of the Act, the following classes of use and development are exempted from Section 96(1)and 96(2) of the Act:
class 1
Use of land for –
[a number of specified uses]
class 2
Development of land for –
[a number of specified developments]
class 3
Any other use or development.
Thus effectively any form of use or development is exempted from section 96(2), and that provision is rendered nugatory.
Mr Gobbo pointed out that clause 2-4 is in the State section of the planning scheme, which has been in force since 24 October 1990 and is part of every planning scheme in the State. He had not been able to find any example of its effectiveness being called into question.
Mr Morris submitted that as clause 2.4 does not set out classes of use and development which are exempt from section 96(2), it is invalid because it defeats the intention of that provision. In his submission, Parliament could not have intended that every use and development be exempted from section 96(2). The clause was unfair because it enabled the Council to be a law unto itself in regard to developments on its own land. He was not arguing that it was not possible to have one class consisting of the whole. Rather, his submission turned on the intention of Parliament in enacting the provision to ensure that a responsible authority was not a judge in its own cause.
He also relied on the passage from the judgment of Wilson, Dawson, Toohey and Gaudron JJ in The State of South Australia v Tanner (1989) 166 CLR 161 at 167-8 where their Honours said:
. . . the test of validity is whether the regulation is capable of being considered to be reasonably proportionate to the end to be achieved . . . It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power.
He referred me to the discussion of that passage in Pearce & Argument Delegated Legislation in Australia (Butterworths, 1999) and the authorities there cited, and submitted that clause 2.4 was “so lacking in reasonable proportionality as not to be a real exercise of the power” contained in section 6(2)(ka) of the Planning Act.
Having considered the matter, I find myself, with reluctance, unable to accept those submissions, with which I have some sympathy. I note the decision of the Full Court (Herring CJ, Smith and Hudson JJ), dismissing an appeal from Adam J, in De Poltieri v City of Prahran [1959] VR 760, to which Mr Morris referred me. In that case a provision of the Local Government Act 1946 authorised a municipality to make by-laws “prescribing areas within the municipal district as residential areas” The Council made a by-law so prescribing the whole of the municipal district, which the Court found to be within power. It may be said that that case does not relate directly to the submissions I am considering. However, it indicates, in my view, a basis for the consideration of those submissions. In South Australia v Tanner, Brennan J said at 174:
In my opinion, a delegation of legislative power should be narrowly construed unless the Parliament has, by express provision or necessary intendment, revealed a contrary intention.
The language Parliament has chosen to use in this respect seems to me to indicate a contrary intention in that sense. Accordingly the claim numbered 2 in the prayer for relief must fail.
Local Government Act
In the claims numbered 4 and 5 in the prayer for relief, Pitt Street seeks an injunction restraining the Council from proceeding with the sale of the land shown on the attached plan as D, E, F and H1 until the statutory requirements of the Local Government Act have been met. (It should be noted that the correct number of the lodged plan of subdivision referred to in those two claims is 18383, not 183838, but nothing turns on this.)
The relevant provision of the Local Government Act is section 189, which reads, so far as relevant:
189.Restriction on power to sell land
(1). . . if a Council sells or exchanges any land it must comply with this section.
(2) Before selling or exchanging any land the Council must—
(a) ensure that public notice of intention to do so is given at least 4 weeks prior to selling or exchanging the land; and
. . .
(3) A person has a right to make a submission under section 223 on the proposed sale or exchange.
Section 223 requires the Council to publish a public notice calling for submissions, and provides that the Council must consider written submissions received within 14 days of the publication. A person who has made a written submission and has requested to be heard is entitled to be heard at a meeting of which reasonable notice must be given, and the Council “must take into consideration all the submissions made under this section”.
On 14 December 1998, the Council resolved:
That pursuant to section 189 of the Local Government Act 1989, Council hereby resolves that this land is surplus to Council’s requirements and to give notice of its intention to sell Lots 5, 6 & 7 LP 18383, Smythe Street and an area of 81.38m2 from the western boundary of the swimming pool site, and that submissions be invited and considered pursuant to section 223 of the Act.
That resolution refers to the land described on the attached plan as F, E and D and an area of 81.38m2 of H, corresponding to part of H1 on that plan.
On 17 December 1998, the Director of City Development of the Council wrote to the Border Mail asking that an advertisement be inserted in that newspaper on 23 and 26 December, reading in part:
In accordance with section 189 of the Local Government Act 1989 notice is given that the Council of the City of Wodonga intends to sell the following land:
Lots 5, 6 & 7 LP 18383, known as 8 to 14 Smythe Street and part of Plan of Consolidation 354165E being an area of 81.38m2 from the western boundary of the swimming pool site.
Council intends to dispose of these properties to facilitate commercial developments in accordance with Council’s Town Centre Urban Design Plans. The plans aim to attract investment in entertainment facilities for the city, linked to public open spaces and retailing facilities.
The advertisement continued with a notification in accordance with section 223 of the Local Government Act. It duly appeared on 23 December. There is no evidence before me as to whether it appeared on 26 December.
The land known as 8-14 Smythe Street (D, E, F and G on the attached plan) includes Lot 4 (G on the attached plan) as well as Lots 5, 6 and 7 (D, E and F on the attached plan). It is conceded by the Council that the piece of land (H1 on the attached plan) intended to be sold from the swimming pool site has an area of 180 m2, not 81.38m2. The advertisement, therefore, does not correctly describe the land intended to be sold. Nor does it correctly describe the land the subject of the resolution, which itself did not correctly describe the land intended to be sold. The inaccuracies are conceded by the Council.
In the events which happened, Pitt Street did not become aware of the advertisement in time to lodge an objection to the proposed sale within the fourteen days provided by section 223 of the Local Government Act, and its solicitors wrote to the Council to express its objection on 15 January 1999. Council resolved to note the letter. One objection was received within the fourteen days from the Wodonga Amateur Swimming Club, requesting written confirmation of arrangements relating to the swimming pool, and confirmation was provided.
In Bycon Pty Ltd v Moira Shire Council [1998] VSC 25, Vincent J found compliance with the provisions of section 189 of the Local Government Act, in circumstances where it is applicable, to be mandatory. I would refer also to the passages from Marock v Billjoy and Scurr cited in paragraphs 29, 30 and 34 above, which, although not directed to a failure to comply with section 189, are of relevance in that context.
The submission of Pitt Street is that the public notice published on 23 December 1998 did not comply with the requirements of section 189, and accordingly was invalid. Mr Gobbo, in response, submitted that the land ownership in the area was clear, and enquiry would have clarified the position for any interested person. The directly affected parties were aware of the true position by reason of the planning application and the fact that the area of H1 was pegged out on the ground. The extra area represented only a small percentage of the land to be sold. The error was not significant, and would not have led an interested party to decide not to make submissions when that person might otherwise have done so.
However, consistently with the authorities to which I have referred, I find that section 189 requires that a public notice by a council of intention to sell land must accurately describe the land intended to be sold. As in the case of the application for the permit, to accept the submissions of the Council would be to say that that principle need not apply where the circumstances of the proposed sale are thought to be well-known in the community. For these reasons, there will be injunctions in accordance with the claims numbered 4 and 5.
Conclusion
In summary, then, I find:
·that Pitt Street has standing to bring all of the claims in this proceeding (see paragraph 16);
·that the Council acted unlawfully in granting the permit for land which was described neither in the application for a permit nor in the published notice of application (see paragraph 36);
·that the appropriate remedy for that unlawful action, in all the circumstances of this case, is an order in the same terms as that proposed in the Administrative Law Act proceeding (see paragraph 38);
·that the claim of Pitt Street for a declaration that Weatheralls must obtain a permit from the Minister fails (see paragraph 45); and
·that injunctions will issue restraining the Council from proceeding with the sale of the relevant land owned by it until the statutory requirements of the Local Government Act are met (see paragraph 54).
I am not to be taken as making any orders today. I propose now to fix a time, as soon as possible, for counsel to make submissions as to the appropriate orders to be made in both proceedings in the light of my findings. There will, no doubt, need to be submissions as to costs from all three parties.
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