Osterley Pty Ltd v Ha Bachrach Pty Ltd

[1993] HCATrans 47

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B59 of 1992

B e t w e e n -

OSTERLEY PTY LTD

(ACN 006 966 936)

Applicant

and

H.A. BACHRACH PTY LTD

(ACN 004 315 066)

First Respondent

THE COUNCIL OF THE SHIRE OF

CABOOLTURE

Second Respondent

Application for special leave

to appeal

BRENNAN ACJ
GAUDRON J

McHUGH J

Osterley 1 5/3/93

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 FEBRUARY 1993, AT 11.31 AM

Copyright in the High Court of Australia

MR D.R. GORE, OC:  May it please the Court, I appear with

MR M.E. RACKEMANN for the applicant. (instructed by

Minter Ellison Morris Fletcher).

MR P.J. LYONS, OC:  I appear with my learned friend,

Mr T.L. KIRK, for the first respondent.

(instructed by Phillips Fox)

MR GORE: There is no appearance for the second respondent,

which will abide the order of the Court.

BRENNAN ACJ:  Now, before you proceed, Mr Gore, the Deputy

Registrar certifies that she has been informed by

Messrs King and Company, the solicitors for the

second respondent, The Caboolture Shire Council,

that they do not wish to appear at the hearing of

this matter and that they have instructions to

adopt the submissions of the applicant, and will

abide by any decision of the Court.

MR GORE:  Yes, thank you, Your Honour.

BRENNAN ACJ: Whether that is the applicant or the

respondent whose submissions they will abide

byseems to be a matter of doubt.

MR GORE: Well, the Council was supportive of my client at

all lower levels, so one suspects it continues to

be so.

BRENNAN ACJ: Yes, very well.

MR GORE:  Your Honours, may we preface our submissions on

the judgment of the Court of Appeal with some

preliminary submissions relating to the application

to this case of the criteria for granting special

leave and, at the outset, Your Honours, we
recognize the general reluctance of this Court to
grant special leave in town planning cases. That

reluctance has been said to be based upon the fact

that specialist courts and tribunals have

specialist and expert knowledge and experience

which they can bring to bear on the topics before
them, including the interpretation of planning

instruments of the kind in question here.

At a lower level in the court hierarchy, the

legislation in Queensland provides for a broadly

similar result on inferentially the same ground.

Appeals to the Court of Appeal from the Planning

and Environment Court are relevantly confined to

the ground of error in law so that, overall then,

it is envisaged that there is a confinement of the

area of interference by appellate courts in the

judgments of the planning court.

Osterley 5/3/93

It is not suggested, of course, that this

means that the mere fact that the Court of Appeal

in any town planning case interprets a town

planning instrument differently from the specialist

court, that is where it intervenes, itself provides

a ground for the grant of special leave.

But what we do submit is this. First, this

case is different from the two reported cases of

which we are aware, where this Court has expressed

its general reluctance to grant special leave in

such cases. Those cases are No 2 and 3 on the

applicant's list of authorities, one involving the

South Australian Planning Commission, and the

other, the North Sydney Municipal Council.

In both of those cases, Your Honours, the

appellate court did not interfere with the decision

of the specialist court, and leave to appeal from

that decision was refused. That is not this case,

where the Court of Appeal did intervene.

Secondly, Your Honours, and probably more

importantly, in this particular case, the applicant

contends that the interpretation which the

Court of Appeal placed upon the relevant planning instrument was maturely based upon a conclusion of

fact which was at odds with the findings of fact of

the planning court.

BRENNAN ACJ:	What is the conclusion of fact?
MR GORE:	The conclusion of fact, Your Honour, is that the

subject land was not included in a description in

clause 6(2) of the strategic plan relating to an

excepted area.

BRENNAN ACJ:	Why do you say that is a question of fact?
MR GORE:	We say that is a question of fact because whether

or not a particular piece of land fell within the

description of ordinary words used in the planning

instrument is a question of fact.

BRENNAN ACJ:  That depends on whether the reason why it is

so held is by reason of the construction placed

upon the instrument or upon the physical

topography.

MR GORE:  I am not sure I follow the thrust of Your Honour's

question.

BRENNAN ACJ:  The land is where it is. Was there any doubt

or argument about that?

MR GORE:	No.
Osterley	5/3/93
BRENNAN ACJ:	So the question is whether or not the land in

that position is or is not within the language of

the strategic plan.

MR GORE: That is so, Your Honour.

BRENNAN ACJ:	What is the fact that has to be found?
MR GORE:	The fact that has to be found is the question that

Your Honour has just asked, whether it is or is not

within an area described in the strategic plan.

BRENNAN ACJ:  What evidence does one adduce to establish or

disestablish that fact?

MR GORE:  There was in this case expert evidence which

suggested that the subject land was comprehended by

the words described in the plan and the - - -

BRENNAN ACJ:	How is that a matter of expert evidence?
MR GORE:	It was treated as a matter of expert evidence by

the Full Court in that case of Roy Somerville which

is referred to in the affidavit, where a similar

question arose.

BRENNAN ACJ:  What was the expert evidence; what did it

say?

MR GORE:  Guided by the judgment of the Planning and

Environment Court - and little was said by

Her Honour about it - the thrust of it was that the

strategic plan comprehended that the subject land was part of the land intended to be developed and

to function as the Morayfield town centre. That is

not an altogether surprising proposition,

Your Honours, given that on the view taken by the

Court of Appeal, the strategic plan in the relevant

description was confined in its application to land

already zoned central commercial.

As appears from the judgment of the planning

court, a shopping centre is an as of right use in

the central commercial zone, and you would expect

therefore that with a forward planning document

like a strategic plan, when it is making

projections about what should happen for areas, it
is principally referring to areas which are not
already appropriately zoned for the purpose being

described.

BRENNAN ACJ:  I confess I do not understand what the

question of fact is, Mr Gore.

MR GORE: Perhaps I should take Your Honours to clause 6(2)

of the strategic plan, which is conveniently set

out in the judgment of the Court of Appeal at

Osterley 4 5/3/93

page 42 of the record. We have on this page,

Your Honours, three paragraphs which were very

important to the Court of Appeal's determination.

The first two are the second-last and last

paragraph of clause 6(1) - I will return to those later. The question of fact relates to the first
paragraph of clause 6(2) which appears at the foot

of page 42. It is the second and third sentences of that paragraph which were material, the second

sentence beginning:

It is considered inappropriate to permit uses

along Morayfield Road which would operate in
competition with the retailing and business

activities of the Caboolture town centre -

and from this point on the key words appear -

except for an area on the eastern side of

Morayfield Road opposite Caboolture River

Road -

Pausing there, those words are the words which

raise the question of fact whether or not the

subject land fell within that area on the eastern

side of Morayfield Road.

BRENNAN ACJ:  There are two questions. Was it on the

eastern side of Morayfield Road?

MR GORE:	Yes, Your Honour.
BRENNAN ACJ:	Was it opposite Caboolture River Road?

MR GORE: In a broad sense, yes, Your Honour.

BRENNAN ACJ:  I thought the court found it was to the north

of there.

MR GORE: That is why I said in a broad sense, Your Honour,

yes.

BRENNAN ACJ: There could not be any argument about where

the land was.

MR GORE:	But the difficulty, Your Honour -
BRENNAN ACJ:	So the question of whether or not it was

opposite Caboolture River Road means what construction does one place upon the word "opposite".

MR GORE:  Your Honour, even if that were right, even if one

took a narrow view of the meaning of the word

language "the total of the land zoned central

"opposite", it would appear that the Court of the

Osterley 5/3/93

commercial" - as being the area intended to

function as the Morayfield town centre. Now, that

area was quite substantial. I think from the judgment of the lower court, at page 3 of the record, at about line 16:

There are currently approximately 12.1

hectares of land zoned Central Commercial in

the CBA, and 17.1 hectares along the

Morayfield strip.

So that, on the approach taken by the Court of

Appeal., it itself regarded land, shall we say south
of the junction of Morayfield Road and Caboolture

River Road as being intended to be comprehended by

this expression. So even the Court of Appeal did

not put too narrow a meaning on the word

"opposite", but they were wrong, in our submission,

in looking at the question whether or not the

subject land was also included. These are words of ordinary language which admit of two possibilities.

It may or may not include the subject land and the

correct conclusion on a question like that is a

question of fact.

I should read the third sentence of this

clause, because it is important to the submissions

on the judgment:

The Morayfield Road area excluding the

Morayfield town centre is desired to function

as a complementary area to the town centre by

catering for commercial industry and showroom

type uses.

So Your Honours will have seen that the accepted

area is twice referred to, with the consequence

being that the accepted area is allowed to compete

with the retailing and business activities of the

Caboolture town centre, and is not intended to

function as a complementary area to the Caboolture
town centre.	So that it is obviously critical to a

proper interpretation of not just clause 6(2) but

other subclauses of clause 6, to make some judgment

about whether or not the subject land was within or

outside that accepted area. If Your Honours are

against our submission that that is a question of

fact, certainly that would undermine seriously the

grounds that we contend special leave should be

granted.

Perhaps I should take Your Honours to the

Roy Somerville case, which is number 1 on our list

of authorities.

BRENNAN ACJ:  What is this to show, Mr Gore?

Osterley 6 5/3/93

MR GORE: This is to show, Your Honour, that the Full Court

treated a similar question as involving a question
of fact rather than a question of law. This
particular case involved an appeal by the
unsuccessful Logan City Council to the Full Court

and it was equally unsuccessful before the

Full Court. The only passages that are relevant

are at the conclusion of the judgment of

Mr Justice Thomas, who delivered the leading

judgment, at page 110. At about point 9 of that

page, there is a paragraph:

The appeal to this Court also raised the

following grounds -

and they are set out, and then His Honour went on:

These grounds are based on the premise

that his Honour erred in treating certain

statements in the strategic plan having

application to the subject land.

A very similar question to the one that we contend

here involves a question of fact. Reading on:

The error is said to lie in the impossibility

of determining with precision whether the
subject land lay within the area contemplated

by those observations in the strategic plan.

These submissions in my view seek to rely

upon an alleged error of fact, and no question

of law is properly raised. Mr Fryberg -

who appeared for the council -

endeavoured to distil a question of law on the

footing that there was no evidence capable of

supporting such a finding. The problem with

that submission is that was such evidence. It

includes the opinion evidence of an expert who

addressed his mind to the subject land and to

the strategic plan, and who expressed the

opinion that the former lay within the latter.

Now, there was similar evidence here, Your Honours,

at page 6 of the record - - -

BRENNAN ACJ:  Mr Gore, to make that proposition stand one

has to construe the particular instrument, does one

not?

MR GORE:	I accept that, Your Honour.
BRENNAN ACJ:	Now, does that not take you back to the

problem that you face, which is that your argument

is based upon a particular construction which you

Osterley 5/3/93

would seek to place upon this instrument, and that

it relates to particular areas within the shire?

Where is the general question of importance in

that?

MR GORE: There is no general question of importance that I

have dealt with to date, I acknowledge that. What

I have been seeking to articulate ~o date is that

the Court of Appeal did make a finding of fact when

it was not within its power to do so, and if you

accepted that, then I intended to take you to the

question of general importance which relates to

clause 6(1) of the strategic plan. When I say it

is a question of general importance, I do not

suggest that it is of any interest to people in other States or, for that matter, in many other

shires of Queensland, it is a question of interest

to the residents and owners in the shire of

Caboolture, because it relates to the proper
construction of the strategic plan and the

interpretation which the Court of Appeal placed

upon the words "a business centre of regional

significance". The Court of Appeal took the view

that that meant that the central business area of

Caboolture had to remain the dominant retail

centre, the dominant administrative centre and the

dominant business centre.

BRENNAN ACJ:  Is that not the sort of question that this

Court has set its face against in terms of

entertaining applications for special leave to

appeal?

MR GORE:  It most certainly is, Your Honour, and I can

really only overcome the obstacle of those previous

decisions if you accept my preliminary submission

that, for the Court of Appeal to construe the

strategic plan in the way that it did, in itself

stepped outside the confined area of appeal in

cases of this nature.

BRENNAN J:	But to do that you must go back one step more, and that is to construe the instrument itself and,
in particular, the word "opposite".
MR GORE:	Your Honour, it is, with respect, not quite as

simple as that. I know we are returning to old

ground, but the general position at law is that

where ordinary words are capable of having

application to a particular set of facts in one of

two ways and both are reasonable possibilities,

then that is a question of fact. It is certainly a

question of law whether or not those words admit of

a second possibility, but even in this case the

Court of Appeal seemed to recognize that the

interpretation that they put upon the relevant

words in clause 6(2) admitted of a second

Osterley 5/3/93

possibility. In that regard I refer Your Honours

to what they said in the record at page 45. Having

referred to the relevant extract from clause 6(2),

at about line 7, Their Honours went on:

It seems likely -

and I emphasize the word "likely" -

therefore that the passage which we have

quoted is a reference to the total area zoned

central commercial on the eastern side of

Morayfield Road the northern part of which is the existing Franklins store; and it is unlikely -

again I emphasize that -

that it refers to the subject land which is

not directly opposite Caboolture River Road.

Now, that really is the language of a finding of fact rather than an interpretation of law, with

respect.

McHUGH J: Can I just ask you this question, Mr Gore? What

is the significance of the first sentence in the

second paragraph of clause 6(2), namely:

The extent of such development along

Morayfield Road shall be confined to the

general areas presently committed to

commercial development.

MR GORE: That really is referring to, in our submission,

the primary thrust of clause 6(2) which is the

confinement of the Morayfield Road area

to"commercial industry and showroom type uses"

rather than to the excepted area.	The language is
not particularly felicitous.	I accept that, not

that I am the draftsman and need to take any

responsibility for it, but that seems to be what it

is referring to.

McHUGH J: It is the difficulty you always fall into when

you use the word "such".

MR GORE:  Particularly when you have raised a number of

possibilities beforehand. Your Honours, the

importance that the Court of Appeal placed upon

what we have contended is a conclusion of fact

really emerges from two later places in the

judgment. The first is at page 47 where, in the

first two paragraphs on that page, the Court of

Appeal accepted that out of context the argument

that we had contended for as to the proper

construction of clause 6(1) had some appeal, but in

Osterley 9 5/3/93

its context they said the words had to be read

distributively.

GAUDRON J: That has nothing to do with what you say is a

question of fact though, has it?

MR GORE:  I accept that, Your Honour, save that the Court of

Appeal then used the question of fact in arriving

at that construction of law, because they said at

line 13:

However, the context, in our view, dictates -

the opposite result, and then they went on to

explain what they meant by "the context" at

line 18:

The second last paragraph of sub-clause (1)

and the paragraph to which we have referred in

sub-clause (2) -

Now, may I pause there to say that the only part of

subclause (2) to which Their Honours had

specifically referred in the text of their own

judgment was the key part that I have been

labouring. They must be read together.

The effect of what the court really went on to

say in the next couple of paragraphs was this, in

our submission: if Your Honours go back to page 42

where the key paragraphs are set out in full,
accepting the Court of Appeal's approach that the

applicant's land is not within the accepted area under subclause (2), when you look at the second last paragraph of clause 6(1) it is not surprising

that the Court of Appeal should arrive at a

construction which was adverse to the applicant's

case.

The thrust of that provision is that the

council would only approve shopping centre

developments if they could be shown to be an

expansion of an existing centre. But the Court of

Appeal took the view that subclause (2) limited any

expansion in the particular area of Morayfield

Road, so that the general words in the second last

paragraph of clause 6(1) were really of no use to the applicant, or perhaps more correctly should I

say, to the approach which the Planning and

Environment Court had taken. So that is one reason

why I keep calling a finding of fact is important.

The second thing is that Their Honours then

went on at pages 48 to 49 of the record from

line 23 to deal with the primary judge's treatment

of subclause (2), and they really did it in two

steps. From about line 27:

Osterley 10 5/3/93

She seemed to arrive at this conclusion -

which they describe -

by correctly concluding that an area on the

eastern side of Morayfield Road opposite inappropriateness of permitting uses along

Morayfield Road which would operate in competition -

et cetera. The second step then was:

and then by concluding, wrongly in our view,

that there was no limitation upon the extent

of the competition which this exception

permitted. In our view, there were two such

limitations. Plainly one limitation was that

it was allowed to compete only to the extent

that it functioned as the town centre for

Morayfield. The other limitation was that -

and this is the important limitation -

there being an area zoned central commercial

in Morayfield Road opposite Caboolture River

Road in the town plan of which the strategic plan formed part, the area on the eastern side of Morayrfield Road opposite Caboolture River

Road referred to in this sub-clause was that

area so zoned. As we have already indicated,

that did not include the subject land.

So, Their Honours have quite expressly used that

earlier conclusion as one of the key factors in
construing clause 6(2), which is said to be part of
the context in construing clause 6(1), and similar
considerations apply to clause 6(4), which I have

not taken Your Honours to, but perhaps I should, at

page 43 of the record at about line 45. The thrust

of this clause was relevantly to permit where

justified the establishment of sub-regional

facilities, and it was said by the Planning and

Environment Court in this case that what was

proposed by the applicant was a sub-regional

facility. What the Court of Appeal said about this

particular provision was that it could have no

application to the Morayfield Road area, because of

the limited view which it had taken on development

in Morayfield Road.	And they said that in the
judgment at page 50, between lines 7 and 12.	So
again, very strongly influenced by their own

assessment of whether the subject land was within

this excluded area or not.

Now, Their Honours recognize that the

Planning and Environment - - -

Osterley 11 5/3/93

GAUDRON J: Well, that was not the basis for Their Honour's

conclusion about objective 6(4); the basis of the

conclusion was that it was to be the Morayfield

town centre.

MR GORE: That is so, Your Honour, but Their Honours have

taken the view that the Morayfield town centre, in
the language of clause 6(2), is confined to the

area already zoned, central commercial.

GAUDRON J: Well, if it is not, as you would contend, then

their argument is all the stronger against you.

MR GORE: Precisely. If their conclusion of fact is to

stand, then one can understand the court's

reasoning.

GAUDRON J: Yes, but it does not help your case if it is

wrong.

MR GORE: If their conclusion is wrong?

GAUDRON J: Yes.

MR GORE: With respect, it does, Your Honour.

GAUDRON J: Well, but you cannot have a regional

development; you have got to be a Morayfield town

centre.

MR GORE:  But I hope you noticed that when we were reading

clause 6(2), the Caboolture facilities were twice

described as the Caboolture town centre. So the

words "town centre" are not words necessarily

suggestive of some facility low in the hierarchy,

given that the Caboolture area is described as a

town centre, and yet clause 6(1) says that it is to

remain "a business area of regional significance".

It is one of the difficulties one has,

Your Honour, I recognize, when construing planning

but I do submit that if the court was wrong about	instruments which are often not drafted by lawyers,
its conclusion of fact, then that does seriously
alter the approach one would take to the
interpretation of the clauses. Can I give you
another example of that. If we go back to page 42
to the last paragraph of clause 6(1), you will see
that in the fourth line the three elements are
referred to:

administrative business and retail centre of

the Shire and the maintenance of this position

will be encouraged to ensure that a business

centre of regional significance is retained in

the Shire to serve the Shire's population.

Osterley 12 5/3/93

Let us look at it out of its context. The use of the compendious expression "a business centre" is itself a strong indicator that what the draftsman

had in mind was that none of the individual

elements referred to earlier, namely administrative

business and retail, was itself to remain the

dominant element. The word "business" was itself

one of those three elements, and the draftsman has

chosen to use it again compendiously in describing

what the central business area of Caboolture is

expected to involve.

That is a very strong indicator for thinking

that as long as the centre retains its regional

significance, having regard to those three elements

considered as a group, it is not intended that it

always remain the dominant centre in each of the

three elements. I have already said the Court of

Appeal could see the force of all that out of context but the context which they wanted to use,

we have submitted, Your Honours, was not open to

them to do so.

Your Honours, can I return then to the

criteria for the grant of special leave.	We
acknowledge that one of the difficulties

confronting us here is the fact that the strategic

plan may be altered by the Governor in Council

following an application by the Council in that

regard and that this difficulty is compounded in

this case because there is material before

Your Honours that steps have already been taken and

to some extent are advanced in that regard.

This is the affidavit of Mr Nulty which has been filed by the first respondent. Mr Nulty

suggests that the draft strategic plan is

materially different from the existing strategic

plan that is exhibited, and he is right in saying

that, and is materially different in relation to

Morayfield Road.	So we recognize that they are
real difficulties confronting us.
It can be said of course, and I say it

faintly, that unless and until the strategic plan is altered, the proper construction of clause 6(1) of the strategic plan does remain of general

importance for the shire of Caboolture. If that

was all that was involved in the case, it would not

be a very compelling submission.

I return then to our primary submission that

the reason why this case is special is because the

Court of Appeal itself stepped outside the area of

confinement intended for appeals of this nature.

They are our submissions.

Osterley 13 5/3/93

BRENNAN ACJ: That is the problem which, in itself, comes

back to the construction that is placed upon the

strategic plan, does it not?

MR GORE: Well, Your Honour, I have submitted that there is

more to it than just a question of law.

BRENNAN ACJ:  I appreciate that you have said that there is

more to it than a question of law, but you cannot
eliminate the problem that, at the outset, there
was a question of construction as to what any issue

of fact may be.

MR GORE: There is a question of construction which is

related to the question of fact, but I do submit

that, whichever way one looks at it, you cannot

escape the notion that there is ultimately a

question of fact. There is initially an
interpretation question involved as to the meaning of words, but these are relatively ordinary words, and if they do admit of two possibilities, then the

choice between those possibilities is a choice in a

factual context.

BRENNAN ACJ:  Thank you, Mr Gore. We need not trouble you,

Mr Lyons.

The case turns substantially, if not entirely,

upon particular provisions relating to the use to

which land in particular parts of the Shire can be

put and the restrictions placed upon development in

respect of particular areas of land. The

sub-clauses construed by the Court of Appeal are
specifically directed to nominated areas within the

Shire. No question of general public importance is

raised by the applicant's challenge to the

correctness of the construction placed upon these
sub-clauses by the Court of Appeal. Therefore, the
case is not one in which special leave should be

granted.

We would add, although this is not the ground

of our decision, that we are not satisfied that the
correctness of the construction placed upon the
sub-clauses by the Court of Appeal is attended with
sufficient doubt to justify a grant of special

leave. Accordingly, special leave is refused.

MR LYONS:	The respondent seeks costs, Your Honours.
BRENNAN ACJ:	Have you anything to say to that, Mr Gore?

Osterley 14 5/3/93

MR GORE:  I do not think so, Your Honour.

BRENNAN ACJ: Special leave is refused with costs.

AT 12.03 PM THE MATTER WAS ADJOURNED SINE DIE

Osterley 15 5/3/93