Permanent Trustees Aust & Anor v Westfield Limited

[1999] HCATrans 96

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B46 of 1998

B e t w e e n -

PERMANENT TRUSTEE AUSTRALIA LIMITED and ROBINA TOWN CENTRE PTY LTD

Applicants

and

WESTFIELD LIMITED

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 APRIL 1999, AT 12.41 PM

Copyright in the High Court of Australia

MR S.L. DOYLE, SC:   Your Honours, I appear with my learned friend, MR M.E. RACKEMANN, for the applicants.  (instructed by Minter Ellison)

MR P.J. LYONS, QC:   Your Honours, I appear with my learned friend, MR R.S. LITSTER, for the respondents.  (instructed by Clayton Utz)

GUMMOW J:   Yes, Mr Doyle.

MR DOYLE:   Your Honours, this application arises out of an application which was made to rezone some land at Helensvale in Queensland into a ‑ ‑ ‑

GUMMOW J:   Yes, but you are going to persuade us that this is of national importance.

MR DOYLE:   Of large national importance, your Honour.

KIRBY J:   This is one of those provisions in which any person can bring proceedings.

MR DOYLE:   That is so, your Honour, but the present applicants’ interest is in the owner of another shopping centre in the vicinity.

GUMMOW J:   The local authority was a party in the Court of Appeal, was it not?

MR DOYLE:   Yes, it was.  I am sorry; it was a party at first instance.

GUMMOW J:   It was a party at first instance and appears to be in the notice of appeal in the Court of Appeal, but does not appear to be there at the time of judgment, and is not a party here.

MR DOYLE:   I did not appear at the Court of Appeal, just excuse me, your Honours.  I am instructed that it did not appear at the hearing of the appeal in the Court of Appeal.

GUMMOW J:   Yes, but it would need to be bound if you succeeded in getting leave here, would it not?

MR DOYLE:   Yes, your Honour.

GUMMOW J:   We will come to that if we need to.

MR DOYLE:   Your Honours, might I deal first with the error, as we urge it to be.  This scheme, in common with many schemes, as we submit it, makes provision of two kinds:  one is strategic or conceptual plans for the area, which necessarily are expressed in general and conceptual ways, and it also makes provision for zoning of land in particular zones, the provisions of which require a degree of specificity.

In relation to the application with which your Honours are concerned, the zone which was nominated is the special facilities zone.  Can I ask your Honours to go in the judgment of the Court of Appeal, in the record, to page 72.

GUMMOW J:   Yes, we have it.

MR DOYLE:   Where section 3.3.1 of the planning scheme is set out, and the regime which that section provides is that the scheme nominates purposes for which development in particular zones may be carried out either as of right or with the consent of the council, or which may not be carried out.  So that the scheme which this scheme prescribes is to require the zone to nominate the purposes for which development may or may not be carried out, as the case may be.

GUMMOW J:   Am I right in thinking – just assist me with this.  The way this structure works, what was happening was a deemed refusal to an application, is that right?

MR DOYLE:   Yes, your Honour.

GUMMOW J:   At the threshold, as it were.  On the basis that it was not something that could be entertained.

MR DOYLE:   No, your Honour, it was deemed to be refused because it was dealt with within a prescribed number of days.

GUMMOW J:   That is right.

MR DOYLE:   That is so.  There was then an appeal by ‑ ‑ ‑

GUMMOW J:   If that had not happened, and had the council, the local authority, accepted and there was no deemed refusal, what would have happened then?

MR DOYLE:   The council would have to deal with whether or not to approve the application ‑ ‑ ‑

GUMMOW J:   On the merits, as it were.  “The merits” might not be the right word.

MR DOYLE:   If we are right, it would have had to deal with it by rejecting it because it was not a proper application.

GUMMOW J:   Yes.  Now assume ‑ ‑ ‑

MR DOYLE:   By assuming that it were a proper application, it would have to be dealt with by the council on its merits.

GUMMOW J:   And would appeal rights then flow at that later stage?

MR DOYLE:   Yes, either the applicant or anyone who has put in an objection, has an appeal right depending on what the council does.

GUMMOW J:   I see.

MR DOYLE:   That appeal is to the Planning and Environment Court, and from that court to the Court of Appeal on questions of law or jurisdiction.

GUMMOW J:   Yes.  Now am I also right in thinking that this statute has been repealed, the Local Government ‑ ‑ ‑

MR DOYLE:   That is so.  Yes, the Local Government Planning and Environment ‑ ‑ ‑

GUMMOW J:   Is the Integrated Planning Act 1997 significantly different in structure?

MR DOYLE:   Yes, but not relevantly, as we would contend it.

GUMMOW J:   Thank you.

MR DOYLE:   Really for two reason:  one is that the particular scheme with which your Honours are concerned is expressed to continue until, I think, March 2003, and is to be dealt with under the Integrated Planning Act but, as well, that new Act requires any material change in use of land, no longer called the rezoning application, but an application for development approval, but it will raise, we submit, the same sorts of questions as this application does, namely the degree of specificity which has to be articulated in nominating the purposes for development of land.

GUMMOW J:   The trouble is, that degree of specificity is not a bright‑line question.

MR DOYLE:   No, that is true, but the fact, we would submit, that people’s views as to what is the appropriate degree might differ, does not take away from the matter of general application in this case, which is that the Court has determined that one can take conceptual notions from the conceptual part of the scheme, which is expressed to be a part which does not confer right uses, and apply that as if it nominates purposes of development.  Your Honours, that, with respect, is the error which we identify.  I am sorry, I was taking your Honours to page 72 of the appeal book.

GUMMOW J:   Yes, I interrupted you; that was the cause of it.  You have taken us to 3.3, to the text.

MR DOYLE:   To identify that what the scheme requires is the nomination of purposes of development.  At the bottom of that page is the relevant extract from the rezoning scheme as it concerns the special facilities zones.

GUMMOW J:   Yes, the crucial phrase is italicised. 

MR DOYLE:   That is a crucial phrase.  In the next paragraph on the next page you will see that at about four lines down:

Development for any of the purposes specified on a Plan of Development and Development for any of the purposes indicated by red or black lettering on the zoning maps”.

This is the part of the scheme which defines what a landowner may or may not use his land for, and it requires, we would submit, the nomination of purposes for which the land may be used.  Construing this part of the scheme as a whole, we would submit that it also requires the nomination of a particular form of development.  But whether one concentrates on the words “particular form of development” or the nomination of “a purpose for development”, what is required is the articulation of rights which the scheme then gives effect to, as things which can be done with or without the consent of the council.

In this case, the Court of Appeal has found that the words “Helensvale Town Centre” describe a particular form of development or a purpose for development.  I will take your Honours in a moment to where that is done in the judgment.  We would urge that if those words can satisfy the test of a particular form of development, or purposes of development, then anything can, when one cannot think of a form of more general application than to describe something as a town centre.  That is particularly so in relation to this scheme when one goes to those parts of the scheme upon which the Court of Appeal relied, to say that it defines a purpose of development, and those appear at page 78 of the record. 

These words are taken from the development control plan part of the scheme which, as I have mentioned before, is the more conceptual part of the scheme, not that which defines rights.  Your Honours can read, commencing in the third line, that the town centres:

are “to accommodate a wide variety of uses, services and facilities including high density residential in a vibrant twenty four hour centre”.

Particularly in relation to Helensvale,it said that the:

Town Centre will fulfil the ongoing needs of the existing residents of Helensvale –

and so on.  Then if your Honours read about point 6 of the page:

Town Centre Uses are described as:

in subparagraphs 1 and 2, what we would urge as the most general and non‑specific way.  That, we urge, is the error which the Court of Appeal made in accepting that it is a proper approach to the construction of the scheme, to take conceptual notions and treat them as if they define use rights.

We urge that that conceptual point is one of general importance, really, for three reasons.  I might put it this way:  it is not a point which is relevant only to this case.  Firstly, because the issue is one which can arise in relation to many planning schemes, and both in our outline of argument and in our outline of argument in reply we have given your Honours a number of references to similar schemes throughout Queensland and Australia, where the same question arises as to the degree of specificity required to nominate purposes of development or particular forms of development.

KIRBY J:   Have purposes as a town centre been designated in other States of Australia or only in Queensland?

MR DOYLE:   The precise words “town centre” is only, I think, in the Albert Scheme, but similar difficulties arise, with respect, and this, in fact, demonstrates, we urge, the point of general importance, under the Brisbane scheme, a concept of district centres is used, again to describe in a general, conceptual way, the conceptual plan that a council has for a particular centre, but not with sufficient specificity to give rise to right usage.  So that it would be wrong to treat this case as if its determination will only deal with the words “town centre”.  It deals with the approach to be taken to such descriptions in so far as they appear in the general strategic parts of schemes, and that point is a point common, not only to this scheme, but to many others.

KIRBY J:   In Queensland only, or in other States?

MR DOYLE:   No, we have given your Honours an example of one in, I think, Victoria, at page 110 of the record.

GUMMOW J:   Your opponent tends to discount all of these examples.

MR DOYLE:   Some of them.  Your Honours, the example we give at 110 is in Victoria.  It is paragraph 28(b).  The reason we think they are discounted by our learned friends is because our learned friends wish to state our case more narrowly than we do.  They wish to urge that we say the case is determined on the words “a particular form of development” which they urge is not one which appears necessarily in schemes in other parts of Australia.  As I have expressed the point we urge, it is that it is the error of the Court of Appeal in treating as a form of development, or as the specification of a purpose for development, the conceptual notions contained in the scheme which is the error, and that is a point which is common to, or has the capacity, at least, to be common in its application to schemes throughout Australia.  That is the first point of general importance as we submit it.

The second is that it has the potential, at least, to alter the way in which planning law, certainly in Queensland, and possibly broader than that, will be applied.  It has the potential to encourage applications in the future to be made in the very generalist of terms.

KIRBY J:   What is the mischief of that?

MR DOYLE:   It has a number of mischiefs, your Honour.  The schemes in Queensland require the council to consider the application, and for the application to be advertised so as to excite objectors.  If one can describe what one intends in very general terms, it has the potential to leave the public uninformed as to exactly what is to happen to the land, which may or may not be of interest to them.  Secondly, in the same regard ‑ ‑ ‑

KIRBY J:   You say that by narrowing it down to the particular zoning, and the uses that can be permitted within that zone, you alert people to their interest which may excite their opposition or their involvement?

MR DOYLE:   It may.  My view of what a town centre is may well differ from others, and that is true for the members of the public.  If I advertise a development as a town centre, a reader may take an entirely different view as to what that might encompass, than the developer intends, and the council believes it to be, or that the court believes it to be.  One of the purposes of ‑ ‑ ‑

KIRBY J:   You do point out on 111 that there seems to be a bit of a trend in planning circles to move towards central business district descriptions, and “town centre” seems to have been used in Woden in the Capital Territory.

MR DOYLE:   Yes, your Honour, that is so.

KIRBY J:   It does seem, subject to any answers that the respondent might give, to be a growing fashion.

MR DOYLE:   Yes, and we would submit, one which will only serve to be ‑ ‑ ‑

KIRBY J:   You say it is a fashion to be knocked on the head?

MR DOYLE:   Well, no, the use of the general descriptions by the councils themselves is not to be discouraged, it is the adoption of those general descriptions as if they define use rights which is to be knocked on the head.  It also has this potential, that when a council or a court has to consider whether or not to approve the application, that the task which is set them really becomes elusive, or at least has the potential to become very large and elusive, because the first thing that has to be determined is what is a town centre, or what is encapsulated by the general, conceptual notion which the applicant has chosen to use in its application.  We urge that is the second, if you like, aspect of the general importance of this case.

The third is the approach adopted by the Court of Appeal heralds what we submit is a departure from the hitherto orthodox approach in this country of requiring use rights to be created which are precise and certain and final.  We have given your Honours in our outline of argument a series of cases which advance those propositions.

KIRBY J:   One thing, they tend to hang around for an awful long time, and people attach importance to them and they have economic value.

MR DOYLE:   That is so.  That is the point.  One needs to know what it is that hangs around for a long time, and it needs to be determined with

precision, and with finality.  One of the consequences of the adoption of the Court of Appeal’s approach in this case is, as is adverted to in the judgment of the court itself, that it would create the successful applicant in a position something like the merchant prince, where it is the applicant who can decide what is or is not, for as long as it wishes to hold that approval, within the purview of the expression “town centre”, which would, itself, we submit, represent a departure from the law which requires the specification of rights with clarity and with finality.

KIRBY J:   I suppose you say here are two very well-funded, very well‑lawyered groups who, in the community interest, can fight this matter out in the High Court?

MR DOYLE:   I would only be bold enough to say “well-funded”, your Honour.  This is a case which has been decided without consideration of the merits.  It is a question which was determined as a preliminary point.  It involves only a question of law and, if we are right, it is an important question of law which can determine the right approach to be taken for both, the further conduct of this case, but also future applications for town planning approval.  Those are our submissions, your Honours.

GUMMOW J:   Yes, thank you, Mr Doyle.  Yes, Mr Lyons.

MR LYONS:   If the Court pleases.

GUMMOW J:   We would like to hear you, in particular on Mr Doyle’s first point.

MR LYONS:   The difference between the strategic plan as a conceptual document, and of zoning which he submits requires ‑ ‑ ‑

GUMMOW J:   The consequences that he says flow from the adoption by the Court of Appeal of an interpretation which could cut down as a practical sense the interest of objectors.

KIRBY J:   And the specification of use rights, of which economic value and legal consequences attach.

MR LYONS:   Your Honours, the question of specification of use rights and whether that is necessary for a valid application depends upon, first, the Act, and secondly the structure of the planning scheme.  There is no requirement in the Act that an application for rezoning be for a specific use right at all.  An application may, for example, seek a rezoning to a general industry zone which would allow a range of industrial developments to occur and, likewise, as the Court of Appeal noted, an application even to a special facility zone might be for a major shopping centre development, again which has a complex range of uses.  There is nothing in the Act, nor, indeed, in our submission, in this scheme which requires any particular degree of specificity for a valid application.

KIRBY J:   What is your answer to the claim that that has the mischief that people who may wish to know precisely what is involved from a planning point of view, are left in the hands of the definitions adopted by the Merchant Prince?

MR LYONS:   They will, of course, have seen an advertisement which advised of the proposed rezoning.  They will have had the opportunity to inspect the application, and the application included what were called tables of development in a plan of development, which identified the range of uses which were proposed for the development.  The range is extensive, but the public had the opportunity to know that there was an extensive range, and if that was too extensive from their point of view to object.

GUMMOW J:   This must be a topic of some interest in the Albert Shire, must it not?

MR LYONS:   It is obviously of some interest to the people who have objected, your Honours, there is no doubt about that, but that does not really make it necessarily a vehicle for special leave.

KIRBY J:   Do you contest the assertion that these are planning developments that are occurring in other States and Territories of Australia?  It seems to be a fashion if you look at, I think it is page 111.  There seem to be similar developments in other parts of the country.

MR LYONS:   I do not contest that other schemes have used language which has some broad similarity with terms such as ‘town centre”, but that is not the issue in the present case.  The issue is whether there was a valid application, and that really depends upon - and an application to rezone.  That depends on the zoning system which exists under the (Planning and Environment) Act but which will not exist under the Integrated Planning Act, and only continues to exist until 2003 for schemes which, were not produced under the previous Act, and it depends upon, in this case, the range of zones which this scheme provides for, and the extent of uses which might be permitted within particular zones.

KIRBY J:   So, is it your contention that any light that this Court could throw on the matter in this particular case would, even in the case of Queensland, be only of transitional relevance, because of the change in the law?

MR LYONS:   It certainly is, your Honours.  Under the Integrated Planning Act zonings will not be maintained in the future.

GUMMOW J:   What will they have instead?

MR LYONS:   There might be policy statements of various kinds, but there will not be the division of the land of a local authority area into a series of zones with prohibited forms of development in those zones.  It is a complete change ‑ ‑ ‑

GUMMOW J:   What will be the mechanism for specifying permitted uses and prohibited uses?

MR LYONS:   There are no prohibited uses.  What is required is an application for approval of what is called a material change of use, so that if development exists and the form of the development is to be altered in a way that is ‑ ‑ ‑

GUMMOW J:   I am talking about under the new Act.

MR LYONS:   Under the new Act, that is so.  The only application is an application for approval of a material change of development, that is which is relevant for present purposes.  It also incorporates other types of control, such as building Act controls, but they are not relevant in the context we are considering here.  But, in terms of planning‑type controls, the new Act calls for applications - - -

GUMMOW J:   We need not trouble you any further, Mr Lyons.

MR LYONS:   If the Court pleases.

GUMMOW J:   Mr Doyle, do you want to reply?

MR DOYLE:   Only this, your Honour, that the same point will arise under the Integrated Planning Act because of the need to identify whether there has been a material change of use.  If what is approved is approved in terms ‑ ‑ ‑

KIRBY J:   That is in your particular case, but in respect of the future, it is going to be an entirely different planning scheme.  Why should we trouble over a particular planning scheme in a particular part of Queensland under an Act which is going to be replaced?

MR DOYLE:   Because it is the approach which is the thing which we say is in error.  That is, is it right to ‑ ‑ ‑

KIRBY J:   But if this is, in fact, a common development in planning, then presumably the problem will arise somewhere else under an Act, and under planning schemes that are not likely to be changed by reason of supervening legislation.

MR DOYLE:   The legislation has changed but not the approach, because it required someone to make application for the new use which they wish to have authorised.  The question remains the same:  is that use to be authorised by reference to descriptions such as “town centre”, or is it to be one which defines use rights?  By the changing of legislation one merely alters the nature of the application, not the point of principle.

KIRBY J:   But Mr Lyons says that though described as “town centre”, in fact, the person concerned, on seeing that, can go an find quite specific indications of the zoning that is anticipated or intended.

MR DOYLE:   In fact, as you would have seen from the Court of Appeal’s reasons, it is anything but specific, which is described in the application.  But, the Court of Appeal has found that quite apart from the nominated uses shown in the supporting documents, the words “town centre”, themselves, define a use right.  So that one can never know whether the nominated list of uses is something which is coexistent with the description “town centre”, or whether “town centre” adds something much broader than that, because the court has found those words, of themselves, describe a particular form of development.  That is the vice we urge which leads to the public being uninformed as to these things.  Those are our submissions, your Honours.

GUMMOW J:   Yes, thank you, Mr Doyle.

The respondent applied for the rezoning of certain land which is subject to the Albert Shire Planning Scheme.  The relevant statute remains the Local Government (Planning and Environment) Act 1999 (Qld), despite its repeal by the Integrated Planning Act 1997 (Qld).

An appeal against a deemed refusal by the relevant local authority was brought to the Planning and Environment Court.  That court determined various questions and ordered that the original application was and a proposed amended application would be valid and capable of being made and approved.  Appeals to the Court of Appeal were dismissed.

The applicants in this Court urge that there arise at this stage of the proposed development questions of general importance for town planning law in Queensland and elsewhere, particular with respect to the expression “a particular form of development”.  All that could be put in support of these submissions has been advanced by counsel for the applicants.  Nevertheless, we are not satisfied that any such question is of general importance.

Accordingly, special leave will be refused.  I think that has to be with costs, if you seek them, Mr Lyons.

MR LYONS:   We would seek them, certainly, your Honours.

GUMMOW J:   Mr Doyle, I do not think you can refuse that?

MR DOYLE:   I cannot say anything, your Honour.

GUMMOW J:   Yes.  Special leave is refused with costs. 

The Court will now adjourn until 1.30.

AT 1.09 PM THE MATTER WAS CONCLUDED