North Sydney Council v Ligon 302 Pty Ltd

[1996] HCATrans 49

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S104 of 1995

B e t w e e n -

NORTH SYDNEY COUNCIL

Applicant

and

LIGON 302 PTY LIMITED

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 4 MARCH 1996, AT 12.34 PM

Copyright in the High Court of Australia

MR W.R. DAVISON, SC:   If the Court pleases, I appear for the applicant.  (instructed by Mallesons Stephen Jaques)

MR T.S. HALE:   If the Court pleases, I appear for the respondent.  (instructed by Dunhill Madden Butler)

MR DAVISON:   Your Honours, firstly we wish to move on the motion for adjournment which was filed.  I do not know whether your Honours have copies of that.  Could I hand up three copies of the motion and the affidavit in support.

BRENNAN CJ:   I take the application for adjournment is opposed?

MR HALE:   It is, your Honour. 

BRENNAN CJ:   Yes.

MR DAVISON:   Your Honours, there is currently no adverse order against the appellant.  Your Honours will see from the affidavit of the instructing solicitor, it was believed at the time the matter was last before the Registrar in this Court, that the remitted proceedings to the Land and Environment Court would have been resolved.  They remain part heard.  The hearing on Friday was adjourned part heard to a date to be fixed so that there is no adverse order.  In the event that the Council was successful in the remitted proceedings, there would remain no adverse order.  In those circumstances we would say it would be appropriate that the application be adjourned.

TOOHEY J:   Why do you say there is no adverse order, Mr Davison?

MR DAVISON:   The order was simply to remit the matter to the Land and Environment Court for determination in accordance with the reasons of the Court of Appeal.  There were two matters argued before the Court of Appeal, your Honour.  One related to the question whether his Honour took account of the development control plan and that was found in favour of the present applicant and the appellant in the Court of Appeal.  The second question was the question which these proceedings relate to which was found against the applicant.

TOOHEY J:   Well, it is adverse in the sense that it has gone back.

MR DAVISON:   There is an adverse finding but not an adverse order.

BRENNAN CJ:   That is what you are appealing against, is it not?

MR DAVISON:   The adverse finding, your Honour, yes.

McHUGH J:   If you were granted special leave and you succeeded, that would be the end of the Land and Environment Court proceedings, would it not?

MR DAVISON:   Indeed, your Honour.

McHUGH J:   Why should we grant you an adjournment?  I am amazed that you continued on in the Land and Environment Court.  I would have thought you would have pressed on with this.  The costs are just thrown away.

MR DAVISON:   Where your Honour is content with that course, our understanding of the attitude of the Court has in the past taken to situations where the question may be academic has been to await an adverse order.  We are content to proceed with the matter today.

McHUGH J:   But you have, in effect, a verdict in your favour and ‑ ‑ ‑

BRENNAN CJ:   I think you had better get to the point and present your application.

MR DAVISON:   I am content with that, your Honour.  Your Honours, the application is one which relates to the requirement for owner’s consent in respect of a development application.  The requirement for owner’s consent has been held by the Court of Appeal to be a mandatory requirement.  The question which arises is whether the servient tenement -  the application to the Council, which is currently before the Court, involved the use of rights of way over a parcel of land adjoining the land, the subject of the development application. 

The application proposed the use of those rights of way for access to the development, changing their nature in terms of what was proposed to rights of footway rather than general rights.  His Honour, Mr Justice Bannon held that the consent of the owners of the servient tenement was not required.  Section 77 of the Environment Planning and Assessment Act requires the application to be made by the owner of the land to which the development application relates or, with the consent, requires the application to be accompanied by the consent, in writing, of the owner to which the application relates.

The question is whether the servient tenement is land to which the application relates.  In that context the learned President of the Court of Appeal held that it was.  It was a question that was not directly decided by the majority, they preferring to deal with the matter on the basis of the rights which flowed from the grant of the right of way and not dealing with the question of the policy and intent of the Environmental Planning and Assessment Act as to the rights of owners of land to which applications relate.

The approach taken by the majority is one which does not take account, in our respectful submission, of the decision of this Court in Pioneer v Brisbane.  In that case the Court held that the land which was required for access was land to which the application relates and the application should have included it.

BRENNAN CJ:   What is the reference to that case?

MR DAVISON: That, your Honour, is 145 CLR 485. The majority comprised Mr Justice Stephen, with whom Mr Justice Murphy agreed, and Mr Justice Wilson. Mr Justice Stephen dealt with the question, having referred on page 502 to the legislation, the City of Brisbane Town Planning Act,which defined use in a particular way.  His Honour at point 6 went on to say:

Even without the aid of this definition I should have thought that the applicant’s proposed use must have been regarded as necessarily extending to more than the extraction and processing of quarry products:  it included the construction and use of an access road.  The land the subject of the use accordingly included the route of that access road.  Were there any room for doubt as to this, the extended meaning of “use” given by the latter portion of the definition removes it.

BRENNAN CJ:   What is “use”?  Where do we find something about “related”.

MR DAVISON:   It relates, your Honour, in ‑ ‑ ‑

McHUGH J:   It is at the bottom of 501 and 502, is it not?

MR DAVISON:   Yes, your Honour.  What was required in respect of an application ‑ ‑ ‑

McHUGH J:   Perhaps six lines from the bottom of 501 and over the page.

MR DAVISON:   Yes:

But where, as here, the proposed access is not to be by means of the subject land’s own road frontage, but is to be gained by means of a quite different route, to be constructed over land adjoining the applicant’s land, there immediately arises the question of the true extent of the subject land which is to be devoted to the proposed use, what the present legislation calls “the land to which the application relates or applies”.

The provision in the Environmental Planning and Assessment Act in section 77 requires the owner’s consent in respect of the land to which the application relates so that the expression in 77(1)(b) in this context ‑ ‑ ‑

BRENNAN CJ:   What was the statutory framework within which Justice Stephen considered the meaning of the word “use” at 502?

MR DAVISON:   It was the City of Brisbane Town Planning Act and the particular provision ‑ ‑ ‑

BRENNAN CJ:   I see on page 490 something was to be posted:

on the land to which the application relates or applies.

MR DAVISON:   That is so, your Honour.

TOOHEY J:   Have you a copy of that judgment, Mr Davison?  We were told, I think, that copies would be supplied.

MR HALE:   Yes, well I have copies, your Honour, of the cases to which we refer to in my submissions which includes this one.

McHUGH J:   The difficulty of using this case, Mr Davison, is that “use” was defined to include use which is incidental to and necessarily associated with the lawful use of the land in question, was it not?

MR DAVISON:   That is the point that is taken against us and we say that his Honour Mr Justice Stephen did not determine that matter on that basis.  Primarily he used that only as a subsidiary aid.  The passage at 502, point 6, he says:

Even without the aid of this definition I should thought the applicant’s proposed use must have been regarded as necessarily extending to more than the extraction and processing of quarry -

materials.  Your Honours, that really is the point.  The Court of Appeal has dealt frequently with situations where uses are ancillary to a use and whether those ancillary or incidental uses require consent.  The leading authority in that respect is Food Barn v The Solicitor‑General.  So that so far as the law of New South Wales is concerned, if “use” was defined in the way it was defined in the City of Brisbane Town Planning Act, it would be no more than a codification of what the law, in fact, is.

The point that we take is that distinction has been applied to the reasoning of Pioneer for this reason and we say that it is a distinction without a difference because the fundamental question in any use of land is “What is the use?”, as appropriately characterised, and all that is ancillary or incidental is encompassed within it.  One does not need to articulate and extend the definition of the word “use” so as to achieve that result.  The result is achieved by the general law as it applies to that expression as it has been found to be understood.

McHUGH J:   Is it your point that there should be two separate applications here?

MR DAVISON:   No, your Honour, but we say consistently with the reasoning of Mr Justice Stephen in Pioneer that it is an improper approach to town planning applications and town planning law to seek to hive things out and seek to have the best of a number of worlds.  One is required in respect of one’s application to disclose all that that application will have by way of impact upon the environment:  in Pioneer’s Case, both the construction and use of the access road; here, not construction but the use of the right of footway. 

They are necessary elements of the application and your Honours see from the judgment of the President who dealt with this question, he found it not to have been seriously in contention that the right of way was an incident of the application and was land to which the application related and he so found in his judgment.  The ultimate question here is - the basis of Mr Justice Stephen’s decision, if I can take your Honours to page 500, second paragraph, his Honour said:

Underlying the rival contentions argued on this appeal is a question of quite general importance in the field of town planning:  it is whether an applicant for consent to use land for a particular purpose may make application piecemeal, or must he, on the contrary, apply at the outset for the entirety of the use in question and, consequently, in respect of the whole of the land devoted to that use.

His Honour went on to find that the expression “land to which the application relates” extends to the access, which is consequent here.  We say, your Honour, consistently with what his Honour there held, it is a question of general importance in the field of town planning. 

It applies not just to the Environmental Planning and Assessment Act of New South Wales, but the requirement for owner’s consent is a requirement which is general.  The particular instances that we have identified in the written submissions; only one of them relates back to this question of land to which the application relates - that is the ACT Ordinance - but all speak in the context of the requirement for the owner’s consent.  The owner’s consent, in our submission, is a necessary requirement of not just notice, but understanding on the part of a person whose land is to be affected by the development application and it is for that reason that his consent is required.

The consent does not carry with it anything in the nature of an estoppel as to his attitude as to the use later, as the owner of the servient tenement here could give his consent but bring proceedings for excessive user later if he found that the use of the right of way, even as he understood it in the application, involved an excessive user.  That is a matter for his own proprietary rights and a matter unrelated to the environmental assessment of the particular application.

That, with respect to their Honours in the majority in the Court of Appeal, was to make an assumption as to what the owner of the dominant tenement might do and what the owner of the servient tenement might do in the context of their own proprietary rights.  It is not that to which section 77 is directed.  Section 77 is directed to ensure that the decision maker has before him an application which he is satisfied is to the knowledge of those who are the owners of land to which the application relates and that is the starting point for consideration of the application.

One also has to ensure that the use, as Mr Justice Stephen has held, incorporates all of the elements of the use and we say that is an important question as well.  It is not a question that is in issue in this case but is an important related question.  The setting aside by the majority of the reasoning in Pioneer - setting aside by the failure to address it - is a matter of considerable general public importance in the administration of planning law, not only in New South Wales but in the examples that we have quoted, along the eastern seaboard for development in Queensland, the Australian Capital Territory and Victoria and there are requirements for owner’s consent in other jurisdictions as well, but they are differently put.  That, your Honours ‑ ‑ ‑

BRENNAN CJ:   In those jurisdictions that you just mentioned, it is always a case of land to which the application relates?

MR DAVISON:   No, your Honour, only in the Australian Capital Territory is that aggregation of words used.  In the other jurisdictions it simply requires the owner’s consent but it begs the question in each occasion, if one accepts that the owner’s consent is a necessary precondition, then if the reasoning of Mr Justice Stephen has general application, then it will apply in any event is the point that we make.

We say it is an important question because Mr Justice Stephen’s reasoning was wholly accepted by Mr Justice Murphy; not totally accepted in the manner in which it was decided by Mr Justice Wilson.  He preferred the more cautious course to rely more upon the articulation of the definition of “use” in the Act.  I am sorry, your Honours, I ‑ ‑ ‑

BRENNAN CJ:   No, finish your time.  I think it would probably be a desirable thing to do.

MR DAVISON:   Thank you, your Honour.  He preferred the more cautious course to say that the Act expressed itself in this way and, therefore, that has the consequence that the access‑way is land to which the application relates.  We say, in any event, that would be the consequence for the reasons I have submitted but the argument is put against me that because there is not that extended definition used by this legislation, that there is somehow a difference?  That is a matter, in our respectful submission, which is of general importance and requires resolution for the very important question of town planning control throughout the country.

BRENNAN CJ:   I think your time has now expired, Mr Davison.

MR DAVISON:   Thank you, your Honour.

BRENNAN CJ:   The Court will now adjourn until 2.15 pm.

AT 12.55 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.26 PM:

MR DAVISON:   Could I hand your Honours three copies of the extracts from the legislation that we referred to in the written submissions?

BRENNAN CJ:   Yes, thank you.

MR DAVISON:   As I indicated to your Honours before lunch there is only one of them, that is the ACT legislation, which includes the reference to land to which the application relates but the others require the owner’s consent.  It is for the same reasons, we say, that whether that expression “relates” applies or not ‑ ‑ ‑

BRENNAN CJ:   We are not listening to further argument.  Your time has expired.

MR DAVISON:   Sorry, your Honour.  Mr Hale?

MR HALE:   If I could ask your Honours to turn to page 94 at the ancillary material, it is perhaps an appropriate starting point where the Court can see the factual circumstances in which this legal issue arises.  It is a plan.  Your Honours will see the site upon which there is presently a club and upon which is proposed is residential building on top.  The development application related solely to the site with exceptions relating to other properties which are not related to the subject matter of this appeal.  The present club site, as you will see, obtains some pedestrian access from Berry Street and you will see from Berry Street, a right of footway and also, if you look to the right, or east, another footway is shown but there is no caption on it.  We see a building on the corner which is known as Century Plaza. 

Now, presently, under the terms of the covenants in right of footway, pedestrians obtain access to the current site by those two rights of footway from Berry Street and that is club access.  What is proposed is that those rights of footway will continue to be the means by which access is obtained, but in addition to that, there will be the residential block on top.  So, there will be certain people who would use those self same rights of footway but this time they might be persons using them for the purpose of obtaining access to the residential portions.

Now, it is with that in mind that the Court of Appeal made reference to the role of rights of way and how the nature of the use is not relevant except to the extent it might breech the terms of the covenants.  Secondly ‑ ‑ ‑

McHUGH J:   But why is that so?  The Court of Appeal decision seems to be authority for the proposition that where there is access over adjoining land to a development and there is a change of development, then for town planning purposes, there is no change of use of the access or the subservient land.

MR HALE:   The way the Court of Appeal approached it was the majority found that there was no change of use and I think the President, in fact, did not specifically advert to that question.  Development is defined under section 4 of the Environment Planning and Assessment Act ‑ ‑ ‑

McHUGH J:   Include the use of land.

MR HALE:   Which includes the use of land.

McHUGH J:   Yes.

MR HALE:   Now, the question here was - and it comes back to sections 76 and 77 of the Act - section 76 is the core section which makes provision that one cannot use land - section 76(2) - a person shall not carry out that development on land ‑ ‑ ‑

BRENNAN CJ:   Where do we find section 76?

MR HALE:   Section 76 of the Environment Planning and Assessment Act. 

BRENNAN CJ:   Where is it?

MR HALE:   I am sorry, I thought provision was made with the applicants.

TOOHEY J:   It is in your list of authorities.

MR HALE:   It is in my list of authorities as well, your Honour.  It is in my list of authorities, in fact, at page 56 and going over the page.  The Act provides that the development:

shall not carry out that development on land to which that provision applies unless -

(a) that consent has been obtained -

Now, in relation to what is called the Century Plaza land, development consent would only be required if there was to be a change of views from one use to another use.

McHUGH J:   Is that not one argument against you that there is a change of use under the relevant instrument because you have access to a club.  Now you have got access to a residence; a residential flat building?

MR HALE:   That is one of the arguments that is put.  To that we say that one looks at the fact that presently those rights of way are used, firstly, by persons obtaining access to the club and, therefore, to that extent there is some commercial use associated with them.  Secondly, under the terms of the rights of footway, and it is contained at 159 of the appeal book:

the easements of the right of way shall be used and enjoyed by the grantee in common with the servient owner -

In other words, what presently is the position is there are residents use them, that is to say residents to Century Plaza.  So, it has that residential characteristic or use.  It also has that commercial characteristic,namely, for those persons who are using them to obtain access to the club.  So, in that sense, there is no change in the use of these rights of way.

McHUGH J:   I know that is the way the Court of Appeal reasoned,but it seems to me it is arguable that the cases on easements have got nothing whatever to do with this. 

I mean, let us test it this way.  Supposing that you had here an easement which gave you a right of way to a block of land; just a vacant block of land, full stop, and somebody then wanted to put a swimming pool, public bath, on it.  Surely you have to get the consent of the adjoining owner, would you not?

MR HALE:   If it is pursuant to right of way.

McHUGH J:   Yes, well let me perhaps put it more graphically.  Supposing that there was a residence on there and that there was just a general right of way to the block on which the residence was there and then you were allowed under the instrument to convert the residence to shops or a public swimming pool or a theatre or something of that nature.  Surely there would be a change of the use of the access?

MR HALE:   No, we would, with respect, say no.

McHUGH J:   You are driven to say that.

MR HALE:   Yes, but there is a good example in the case called Argyropoulos which is at the back amongst the authorities that I handed up.

McHUGH J:   It is at 48 in the book there.

MR HALE:   Yes, it is reported at 66 LGRA.  If your Honours go to the end of that case you will see again, a plan.  Now, you will see that there is a subject site there which is part of a light industrial use.  There is a roadway or an access way which, admittedly public - I am sorry, no, it is a right of way - which goes through residential areas.  Now, the argument in that particular case, was that because access was obtained across that right of way which is residential, as the trucks or whatever sought access, they were, in effect, converting that use to a light industrial use.

Now, the analysis of the then chief judge of the Land and Environment Court, which is to be found at 207, is one characterises the particular use as a road.  That is its use.  It is a road.  Admittedly, it is in the context of a particular planning scheme at page 207, next to about point 6 up to the “Canterbury Planning Scheme”:

In my opinion, a “road” use is contemplated by the scheme as a separate use.  The function of a road is to permit the passing and repassing of vehicles.  The use of the handle for a “road” which is a nominate, permissive use under the relevant residential zoning does not become an innominate, prohibited use because the start and/or destination of vehicles passing over the road is light industrial land.

In other words, a road is a road is a road, whatever might be the end use.

BRENNAN CJ:   Well, that might be all very well for the purposes of planning controls, but this is a development application and if you have got a right of way which goes across private land and gives an easement, for example, to the house behind and the householder in the house behind sells and there is a development, for example, of an entertainment centre on that land, one would scarcely think that the ease of access that was theretofore enjoyed was not changed by a change of development.

MR HALE:   Well, the use of the road, the answer would be no.

BRENNAN CJ:   Why not?  You have got thousands of people instead of an occasional householder.

MR HALE:   That might ultimately come back to a question of excessive user under the terms of the ‑ ‑ ‑

McHUGH J:   You keep relying, and you have got to rely, I suppose, as the Court of Appeal relied, on whether or not there was a breach of the terms of the easement but we are dealing here with town planning legislation whose objects may be quite different.  It might be within the terms of the easement but constitute a change in user.

MR HALE:   Ultimately - and this is our submission as, indeed, the ratio of this particular decision, we would say - one looks at a particular access way and characterises it in a particular way.  This is a footway, this is an access way.  It is a footway even though it might be heading off to Century Plaza.  It is carrying persons.  That is its purpose.  When it is going to the club, even carrying club users, it still remains and is characterised as a footway.  It remains that at all times.  Its use does not change and a footway, for example, or let us use another example, just in normal residential use, perhaps it is described as a dwelling house, it will have many ancillary uses in it.

One might have, for example, a footway on that residential use and it is consumed under the umbrella of residential but nonetheless it has a separate use or an ancillary use as a footway.  So, one just looks at what it is this particular strip of land is used for, this is our submission, as a footway and that is the way one characterises it and it always remains that way.

McHUGH J:   Well, I appreciate you say that, but look at it from the point of view of a councilthat says, “We give consent for the development of this access over this land because the access is going to be used for residential purposes.  We would never have given it if it was going to be used for entertainment purposes and that is what they want to do now on this particular dominant tenement”.

MR HALE:   Your Honour is talking about these facts.  It is the other way around.  It is residential.  It would have in addition to its current commercial ‑ ‑ ‑

McHUGH J:   Oh, I know.  I am just giving a hypothetical illustration.

MR HALE:   But there is still, nonetheless, no impediment to the owner of the servient tenement objecting to the Council declining a grant of consent simply on the basis of the impact that might exist, but going to the next part of it, even if your Honours are against me on that, which is the foundation that there is no change of use, one still comes back to the fact that this development application is defined to be in relation to a particular piece of land.

Now, if we subsequently have a problem, we have a problem and that comes back to what section 76 does.  What 76 is saying is that if you have not got development consent for a particular use on a particular piece of land then you commit a breach of the Act.  Then section 77 is directed to the circumstances as to how one goes about getting a development application and section 77 requires that:

development applications may be made only by -

(a)  the owner of the land to which that development application relates -

That relates back to section 76, the land and the use in respect of which that particular consent is sought.  What is put against us is the decision of Pioneer and Pioneer firstly, the majority judgment, was of course Mr Justice Stephen with whom Mr Justice Murphy agreed and Mr Justice Wilson.

Mr Justice Wilson at page 514, the ratio of his judgment depended on the extended definition of “use” which is contained in the Queensland statute.  That begins at page 512 where your Honour will see at 512 in italics he adds:

The term includes any use which is incidental to and necessarily associated with the lawful use of the land in question -

And we turn to page 514 of his judgment, the last paragraph at about point 7 where he follows through the particular use and we will see:

To this point, it will be observed that I have used the language of the extended definition of “use” in s.3 of the Act.

And then he goes over to look at some of the facts over the page where, in that particular case, the transport issue was an issue of importance and there were, indeed, certain conditions.  So, he confines his decision to that of the extended definition as does the minority.  Mr Justice Stephen takes it into account and that we find at page 502 although he primarily determines - comes to his conclusion based upon the fact that there was construction of an access road in this particular case.

Now, the Court of Appeal of New South Wales in Grace Brothers v Willoughby, which is in the bundle, were in that particular case referred to Pioneer and both Mr Justice Hope and Mr Justice Hutley at pages 83 and 88 expressed the view that at 83G Mr Justice Hope, and at 88B Mr Justice Hutley, that the Queensland legislation was inapplicable to New South Wales because the Queensland legislation had that extended definition of “use”.

McHUGH J:   Well, that is a bit difficult to accept, having regard to what Justice Stephen and Justice Murphy said, is it not?

MR HALE:   Well, yes, but I do point out, with respect, that Mr Justice Wilson who formed a third of the majority, but they were concentrating on what was the construction and it was a large area of land there of which the applicant had sought to confine the use to just a very small ‑ ‑ ‑

McHUGH J:   Well, it may be strictly correct if you talk about the decision in the case.

MR HALE:   But, if our submission is incorrect, which gives rise to certainty in what the consent is required for, there is some elastic uncertainty as to what the word relates to, or does that relate.  Now, we have legal access across Century Plaza land.  It is not a case such as in Pioneer.  The question is what is the distinction between requiring owner’s consent for that legal access across one set of land compared with a legal access down Berry Street and I use that as an example.  I use it also as what does “relate” mean?  It is such an elastic term, if that is the argument, compared with precision, which is what we say is the appropriate definition.

There we will also have the problem of the landowner who wants to extend his house has access from a right of way, the servient tenement has the position where he can just prevent any development application being lodged, even though it is just putting a roof on a house, perhaps, if development consent is required.  I see my time is now up.

BRENNAN CJ:   Thank you, Mr Hale.  Yes, Mr Davison?

MR DAVISON:   Your Honours, the decision in Argyropoulos is one which was made by the learned former Chief Judge of the Land and Environment Court in the face of the reasoning in Pioneer.  It was reasoning which was not relied upon by any of the judges below, indeed, distinguished by the primary judge. 

So far as Grace Brothers is concerned, that was a decision related to the terms of the then Local Government Act which governed planning in New South Wales.  It did not include the definition of “development” in section 4 of the Environmental Planning and Assessment Act which is what brings in the reasoning of Pioneer and, in our respectful submission, is inapplicable to a determination of this application.  Those are the submissions we would put in reply.

BRENNAN CJ:   In this matter the application for adjournment is refused.  Special leave is granted but the grant of special leave does not in any way inhibit the matter proceeding in the Land and Environment Court if relevant parties should be so advised.

AT 2.49 PM THE MATTER WAS CONCLUDED