Pine Rivers Shire Council v B.M.G Resources Limited

[1989] HCATrans 113

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B61 of 1988

B e t w e e n -

PINE RIVERS SHIRE COUNCIL

Applicant

and

B.M.G. RESOURCES LIMITED

Respondent

Application for special

leave to appeal

DEANE J
TOOHEY J

McHUGH J

Pine

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MAY 1989, AT 10.24 AM

Copyright in the High Court of Australia

C2Tl7/l/SH 1 12/5/89

MS S.M. KIEFEL, QC:  May it please the Court, I appear with

my learned friend, MS H. O'SULLIVAN, for the

applicant, Pine River Shire Council. (instructed

by R.D. Forbes).

MR J.E. GALLAGHER, ~C:  May it please the Court, I appear with

my learne friend, MR P.J. LYONS, for the respondent.

(instructed by Neil O'Sullivan and Rowell).

MS KIEFEL:  Your Honours, an appeal in this matter would involve

questions of statutory interpretation and, in particular,
of the LOCAL GOVERNMENT ACT, 1936, as amended. In

Queensland, apart from the city of Brisbane, that Act controls all of the land development applications in
Queensland from the point of application for change

of use or zoning of land to a local authority through

to the procedure in the courts.

I say, apart from the city of Brisbane because

it has its own Act but it is identical in all relevant

respects with the LOCAL GOVERNMENT ACT provisions with

which we are here concerned. In particular, Your Honours,
an appeal in this matter would involve the question as ·

to whether the Crown should be served as an owner of adjoining land; that is, land which adjoins that the subject of an application for consent use where the

Crown has a trustee or other person who controls or

manages those lands; that is, the adjoining lands.

It would, however, Your Honours, be of more general

importance, in our submission, given that the Full Court

by its decision has proposed a new definition of "owner"

for the purposes of the notice provisions to adjoining

owners. Your Honours, if we may precis only the

relevant facts as they appear from the record, application

was made by BMG Resources to the applicant here, the

local authority, for consent to use some land in which

it had an interest as a quarry. The land adjoining

BMG's land was land owned by the Crown.

DEANE J:	You can assume that we are generally familiar with the
facts.
MS KIEFEL:·-Thank you, Your Honour.	Your Honours, the relevant

statutory provisions in the LOCAL GOVERNMENT ACT appear

at page 211 of the Act; that is, section 33(18)(a)(v)(B)

which, because of the reference earlier in

subsection (18)(a)(ii) relating to consent applications,
requires that before a decision is made upon an

application, there is to be served or caused to be

owner. served notice of an application on an adjoining land

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DEANE J:	I have not found the prov1s1on.
MS KIEFEL:	I am sorry, Your Honour.
DEANE J:	Did you say page 211?

MS KIEFEL:  It is page 211 of the gazette copy, Your Honour,

that is the 1985 reprint. Regrettably subsection (18)

takes up a large part of this Act.

DEANE J:  Yes, I have found it now.

MS KIEFEL:  Thank you, Your Honour. Perhaps if I could go over

that point, Your Honour. Section 33(18)(a)(v)(B)

because of the earlier reference in the subsection'

paragraph (a)(ii) which refers to a consent

application, that is an application for consent to

use land in a different manner from that allowed,

requires that before there is a decision made upon

an application that notice is to be given or cause

to be given to the adjoining land owner. We should

add, Your Honours, that there is a provision

facilitating service upon a land owner which appears

in our gaze t t e copy a t page 2 14 in s e c t i on 3 3 (18 ) ( d)( i i)

which has the effect that service on an owner

at the address shown in the rate book is deemed to

be sufficient. That is, however, as a question

of fact, not here applicable because no address

was relevantly shown in the rate book and so

the rate book was not conclusive or of assistance

in this matter.

Your Honours, section 3 in the definitions

section of the Act, which appears at page 14 of our

gazette copy - sorry, the definition section commences

at page 10, section 3, but the reference to "owner",

which was the provision with which the Full Court was

concerned, defines "owner" in a way so as to exclude
the Crown but includes the trustee, the Council here,

we concede, and various other persons such as road

licensees and holders of mining licences, all people

who might take interests of some sort from the Crown
with respect to Crown land.	Section 3 is, however,

_ ~refaced by the phrase:

unless the context otherwise

indicates or requires.

Your Honours, the purpose of section 33(18) generally

has been held to be one which is important, in

particular since its purpose is to obtain the views
of the public and to inform the local authority of

views of people who may be interested in the

application, and that appears from a decision of

this Court in SCURR V BRISBANE CITY COUNCIL which

appears on our list. With respect to the individual

notice which is required to be served on an

adjoining owner it has been regarded by the Local

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Government Court in this State as a recognition

of their particular interest as owners, their more

direct interest in the application, and that appears,

Your Honours, from the two decisions of CARINA

CARAVAN PARK V BRISBANE CITY COUNCIL, and RANDALL

V BRISBANE CITY COUNCIL which also appear on our list.

That might, in our submission, quite easily be

seen because an adjoining owner is not only likely

to be affected with present and immediate effects

such as those upon amenity, but an owner of adjoining

land is likely to have a permanent and long term

effect upon the full interest he holds in land.

(Continued on page 5)

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TOOHEY J:	Ms KiefeL that is readily understandable in the
case of private owner. Putting to one side for a
moment, the argument that 'bwner! in fact;:, here
means the Council, to whom do you say the notice
should have been given?
MS KIEFEL:	To the Crown, Your Honour.

TOOHEY J: Yes, but in what form would that notice be given;

rather, to whom would it be addressed.

MS KIEFEL: Well, Your Honour, the facilitative provisions

with respect to services, we understand, whether

by methods of custom or practice, are customarily

served in Queensland upon the Crown Solicitor.

We are not aware - there is no provision in the

Act itself for directing notices to the Crown,

that is, in the LOCAL GOVERNMENT ACT. But, we

would understand service to be effected upon the

Crown Solicitor with respect to matters such as

these types of applications.

TOOHEY J: And I take it the Crown has not sought to be heard

in these proceedings?

MS KIEFEL: No, Your Honour, although I am aobliged to Worm the Court,

upon ID:Y instructions, the applicant for whom we appear did
bring it to the attention of the Crown and the Crown does
not seek to intervene. We do, however, say, Your Honour,

if I might predict Your Honour's further questions - - -

TOOHEY J:	I have not any.
DEANE J:	You go ahead and answer them anyway.
MS KIEFEL:	Thank you, Your Honour - that, it would be our

submission that the propositions, or the tests,

propounded by the Full Court would be of much more

general application. We acknowledge that, with

respect to the Crown, the question may have more
limited application but because of the test which
we, with respect, describe as a control test

posited by the Full Court, that is one of very

wide and general importance and one likely to lead

to general coniusion to other owners who may be,

- =as Their Honours in the Full Court described,

- = people who have bare title and have lost some of

the indicia of the ownership whether by lease or

licence or management.

TOOHEY J: But here we have a case where the Crown itself

does not wish to be heard; where, on one view of

the Act, notice need not have been given because

the Shire itself answered the description of

owner and, clearly, was aware of the proceedings.

Where is the question of general importance that

arises?

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MS KIEFEL:  Your Honour, that arises because the Full Court

decision was not said to be limited only to the

question of when the Crown has a person, such as a

trustee or manager, in possession of property.	It
is not said to be so limited and the effect of
the Full Court decision, in our respectful
submission, is to read down the purpose of the notice to an owner in the ordinarily understood
to serve someone who has a sufficient interest,	sense in subsection (18); to say that it is enough
someone who has some duties with resryect to
the land. -

TOOHEY J:	Are you saying that that proposition is expressed
in terms that go well beyond the confines of the
particular case?
MS KIEFEL:	Yes, Your Honour.

TOOHEY J: Could you show us where that is said, Ms Kiefel,

please.

MS KIEFEL: Certainly, Your Honour. Your Honours would recall

that from about pages 20 of the record onwards

Mr Justice McPherson, there being only one decision

of the Court, was concerned to describe the various

interests that the Crown and the local authority

here had. The purpose of that seems to be, in terms
of reasoning.that, whilst the Court acknowledged
that the Crown was an owner, in the ordinary sense

of proprietorship we would infer, the local authority

was more concerned with the land.

His Honour, at page 23, if I might lead up to

answering that question, Your Honour, referred,

in various passages, to notions such as "the

Council" being "most likely to be affected by

activities like quarrying" at about point 6. And

further down the page, a few sentences on,to the

fact that the local authority was in control and

"not simply having notional or technical control". (Continued on page 7)

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MS KIEFEL (continuing); At the conclusion of that page:

Its occupation and control are such as to

render it responsbile in law -

and at the top of the following page, a further

interest in that it received rents which it had

to apply for the purposes for which it held the
land. His Honour, in the next paragraph then

says that:

Trustees of land -

such as the Council -

therefore have an interest ..... which, if it

is not -

a legal or equitable interest, is one of:

real or practical responsibility or concern.

Then His Honour goes on to say that is at least

equal to those people such as very limited

holders of interests such as road licensees,

then, in any event concludes that that section 3

includes specifically the trustee.

His Honour, in that passage to which I have

referred, in our submission, seems to suggest that

one is concerned with a real or practical

responsiblity or concern.	Then one notices that
in any event section 3 might apply.	It is rather

unclear as to whether or not the tests are said

to relate together or to be separate.

TOOHEY J: Those comments are only obiter, are they not?

MS KIEFEL:  They however lead to the conclusion which,

we would submit, appears at page 26, Your Honour.

After then saying that it is true that the Crown

retains ownership, at about point 6, and describing

that however as:

bare title ..... unaccompanied by any of the

rights of user and enjoyment.

His Honour says:

In these circumstances it seems to me

that it would be artificial to construe -

the relevant part of the subsection -

as requiring service of notice on the Crown,

when the practical realities are that the

interest and the duty of ensuring that the

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land is protecte4 and that public purposes

context of the statutory provision either

for which it has been reserved are carried
out, rest with the trustees under whose

control the land has been placed by the Crown.

indicates or requires that a meaning by

ascribed to the word "owner" differing from

that in s.3 of the Act.

Your Honours, if we might approach the answer

to Your Honour's initial question in this way:

from that passage, and from the preceding premises

leading to that conclusion, we would submit that

it is open to infer that His Honour approaches

the question of context, and here, of course, it

must be the context of subsection(l8), by reference

to whatever practical situations exist with

respect to the owner of land and any person holding

from him in any given case. We would add, if the

matter were to proceed to appeal,of course, that

His Honour was mistaken in law in approaching

the question of context in that way because

His Honour has confused the question of the

context of public notice under subsection (18)
with a particlar factual situation that one does

not deduce context of a statute in that way.

Your Honour, that being so, in our submission,

it leaves very much open, if not a decision which

suggests in clear terms that one looks to who

is most interested or likely to be effected

by the development,or who has a sufficient

connection with the land to determine who one

serves. It at least is likely to create great

confusion.

DEANE J:  Who was shb:wn in the rate book as the owner of

this land, or does that not appear from the evidence?

MS KIEFEL:	Mr Forbes' affidavit deposes, Your Honours, to
the fact that the rates book showed the notation
"Crown land" and in parenthesis, "Pine Rivers Shire

. -Douncil as trustee". But that does not appear,

in our submission, to take matters very far,
for instance, it was not suggested that the

applicant here searched the rates book and was

confused. The,reference to Crown land was clearly

made and there was relevantly no address shown

so that the provisions of the address subsection

could be utilized.

(continued on page 9)

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TOOHEY J:	But the objection taken, as I understand it, was
failure to.give notice to the Crown but, perhaps,
is that not right?
MS KIEFEL:	Yes, Your Honour.

TOOHEY J: There was no grotmd of objection, then, that

some person, other than the Crown, should have been

given notice.

MS KIEFEL:  No, Your Honour. There is reference in His Honour's

reasons to the fact that it might have been thought

that a point was particularly taken about the

local authority, if it was to be treated as owner,

ought to have at least been notified of that and

that was mentioned in passing in the Full Court.

But it would not be proposed to raise that point on

appeal in this Court.

TOOHEY J:	But it is hard to see that the case is authority
for any proposition other than the proposition 3tated
by His Honour on page 25, about point 6:

The result is that, in terms of the definition of "owner" in section 3 of the

LOCAL GOVERNMENT ACT, it is the Council and

not the Crown that is owner, because it is

the Council and not the Crown which for the
time being would, if the land were let,

be entitled to receive the rent thereof.

MS KIEFEL:  Yes, Your Honour, but to conclude that section 3

operates, given the provisions of subsection (18) is,

in our submission, to read down the notion of

ownership, adjoining owner, as in the normal and

ordinarily -understood sense of ownership and its

ramifications are then potentially wider. That is,

of course, with respect to what I have called the

more limited point. The decision will affect all

land which is owned by the Crown and not alienated

in any way. It will also affect all Crown land

in which the Crown has a tenant or licensee. But,

additionally, in our submission, because His Honour

concluded that section 3 can operate consistently

_ ~±th subsection (18) it is likely to have wider

ramifications and, as I have said, Your Honour,

at the very least to cause confusion.

We should add, whilst .conceding it is, of course,

a binding decision in this State, it stands as

inconsistent with decisions of the Local Government

Court which have expressly exluded section 3, or

the notion that section 3 might apply, because the

purposes of subsection (18) were seen not to be met

by section 3. We would submit that there is another

reason that section 3 ought not to be borne in mind

with respect to subsection (18) and that is that

its purpose is one of rating. Both historically and

by reference to other provisions in the rating part

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of the Act one sees that the purpose of the section 3

definition is to facilitate rating where the Crown

has given over its land to other people.

Your Honours, as we have perhaps already

submitted, it has never been suggested until the

Full Court decision, albeit there are a dearth of

authorities in the Local Government Court on this

particular point, but it has never been suggested

that "owner" was other than proprietor in the

normally understood sense and that reasoning appears

to underly the previous decisions in RANDALL's case

and CARINA CARAVAN PARK.

The test of the Full Court, in our submission,

requires one to consider who has the control or practical responsibility, management or duty in relation to the land. It is expressed in various

terms which might be cumulative or independent, but

its overall effect is that where an owner or

proprietor has bare title then it may be sufficient

to serve a person that qualifies under the various

heads. If I might return to the original question

you posed, Your Honour, if it be so for the purposes

of the Crown as an own:er so as to draw section 3
into the argument, so to speak, in our submission it
is arguably, if not conclusively so, with respect

to owners generally for the purpose of subsection (18).

TOOHEY J:	Ms K~fel, are you suggesting that the case might be construed as meaning that, in some circumstances, it may not be necessary to give notice to the
registered proprietor of adjoining land?
MS KIEFEL:	Yes, Your Honour.

(Continued on page 11)

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TOOHEY J:  And, where do you derive that concern from

the _iudgrnent?

MS KIEFEL:  Your Honour, we derived that concern from

His Honour's reasoning and his conclusions whereby he reads down the Crown's interest.

In concluding that the Crown only had, as

His Honour said, "bare title", although acknowledging it was owner, and as saying

that, as we infer, that subsection (18) is

met by serving it not upon the proprietor but

on the person who has sufficient duty or,

as His Honour I think said, "the more direct

interest or practical responsibility with

respect to the land", His Honour, at the very

least, has introduced an element of confusion

as to whether or not it would be sufficient to

serve a lessee, for instance.

TOOHEY J:  Well, you can see how that sort of reasoning

would apply in the case of the Crown. It would

be a large step, in my view, to translate that

then to the situation of a private land-owner.

MS KIEFEL:  Your Honour, the fact that it may, in our

submission, either have that effect or at least

lead to confusion with respect to it, is perhaps

made more likely so because whilst, as I

understand Your Honour, it might be said that

this decision is limited to the factual situation

where the Crown has leased or given an interest
in land to others, His Honour, in our submission,
also put doubt upon the previous local government
court decisions which dealt only with the
position when the Crown stood as owner of
unalienated land; it appears at page 21 of the
record. His Honour left open the question as
to whether or not those previous decisions were
correct. And so, at least with respect to whether
the Crown in its own right, unaffected by other

tennants or licensees, is an owner, His Honour

has not said anything about the correctness of

those decisions but we would submit the

- reasoning of His Honour, if it does not put

direct doubt upon them, as it must do, since those

decisions, Your Honour, expressly said that
section 3 did not apply, given the purposes of

subsection (18).

Your Honours, in our submission, with

respect to the Crown in particular, the effects of this decision are twofold: that one is left in doubt as to the position of the Crown when it

holds land but does not have a trustee or other

person - and we say that because of the earlier

decisions and the way in which they are left as

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a result of this decision - and it means the

Crown will not be served where, for example, a

local authority manages, controls, or has some

other sufficient connection with the land. It

also obviously will not be served where there is

a road licensee in occupation of the land, a

person having limited interest. And, it is not

simply, in our respectful submission, just the

Crown's interest that is involved, it is the

interest of developers or persons applying to

know whom they should serve. Further,

Your Honours, the Full Court's decision, as we have

said, at the least creates confusion as to whether

it is of general application to an owner who has

granted some rights such as occupation, possession or

management. In its terms, we would submit it is

not said to be limited and because of His Honour's
reference to the context of subsection (18), it

suggests it will be of general application.

In departing from the generally understood

notion of an owner or proprietor, it postulates a

test which is uncertain and it is such as is

likely, in our submission, to lead to confusion and

considerable further litigation. Those are our

submissions, Your Honours.

DEANE J:  What would be the consequence if leave were

granted and you succeeded on your primary

arguments; where would we then go?

(Continued on page 13)

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MS KIEFEL:  Your Honour, the effect if the subsection is

found not t_o have been complied with, in loose sense,

it has been held t o be a j u d i c i a 1 q u e s t i on , i. t rn ea n s

that the local authority had no power to decide the

application, and therefore the appeal in the local

government court would be dismissed.

DEANE J:  What about the local government court's power to

dispense with strict compliance?

MS KIEFEL:  There are powers in the Act itself which allow a

discretion in the court to permit the application

and the appeal in the court to proceed where there has

been substantial compliance. But, we would argue,

Your Honour, that where there has been no notice

given, one does not then proceed to the qualitative

test of whether the compliance is substantial or not.

DEANE J: But, did you not lose on those aspects - on that

matter in the courts below?

MS KIEFEL:  No, Your Honour. The argument was not addressed

in those terms, that there was substantial compliance

within the meaning of the sections in the Act.

DEANE J: I see. Well then, I am a little at a loss. What is

the - - -

MS KIEFEL:  I am sorry, Your Honour. Perhaps I have misled

you. There was argument with respect to that, but

with respect to other problems that had existed in the
application which are not here relevant, as to the

sufficiency of the notice on the land, and those

sorts of questions.

DEANE J:  But, why would not you say that there had been

substantial compliance with service requirements

and no person had been affected in a situation such

as this, where service is obviously, on the facts

of this case, a mere formality.

MS KIEFEL:  Your Honour, if the local authority were the

owner of the land, the fact that it was not served

would, in our submission - we might have difficulty
_wJth that and that point is not pursued.	But where,

however, the Crown is an owner, in our submission,

if one does not give the requisite notice - - -

DEANE J: But, assume that the Crown is the owner, and has

open to say, "Well the authority that the Crown has appointed as its manager of this land, with a real interest in the land and entitled to the rents of the land, has been served, therefore there has been

entrusted the management to the local authority.

substantial compliance"?

MS KIEFEL:  We would say not, Your Honour, because to so hold

would be to hold that whe~S'." notice was given on

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for instance a tenant, or someone who had a

connection with the owner, that would be sufficient

for the purpose of the subsection. It has been

regarded as a very important provision and, in

our submission, if one does not - if I could

distinguish, perhaps, Your Honour, where we see

substantial compliance operating in a factual sense.

If, in a hypothetical sense, if a notice was given to an owner, but the notice was in some respects

deficient, we would submit that in those circumstances

the test of substantial compliance operates.

But, where, however, no notice at all is given

one cannot then proceed to qualitatively assess

whether the action in response to the legislation

is sufficient.

TOOHEY J: But, as section 3 stands, Ms Kiefel, there is no

way, is there, in which a notice to a lessee could be regarded as notice to an owner, except in those

cases specified in the lease by a statutory body?

MS KIEFEL:  No, Your Honour, it would be our submission that

unless section 3 is held to prevail with respect to subsection (18), or to operate with it, notice to a

lessee would not be a normal service on an owner.

TOOHEY J:  But even if section 3 were held to prevail, what is

there in the definition of "owner", other than in

those cases of lessees from the Crown and statutory

bodies, that would characterize a lessee as owner.

(Continued on page 15)

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MS KIEFEL:  Because of the phrase "the terms includes"

in this section, Your Honour, a lessee

is an owner under section 3.

TOOHEY J:  Do you mean because the lessee may be let in

under the word "includes"?

MS KIEFEL:  Yes, Your Honour. As we read section 3, with

respect to "owner", it provides that an owner

is, except for the Crown, that is, the Crown
is not an owner, it is a person who is entitled

to receive the rent if the quantity of the rent

is the correct rent and the term includes a lessee

and all of the other people. That is to say,
the term "owner" is also - all of those people

in the list, the holders of mining claims, lessees,

road licensees under (g) are all owners.

TOOHEY J:  Yes, but only in the particular cases that are

there referred to which, at a quick glance, are

cases of leases granted by statutory bodies.

That may not be an entirely comprehensive description

but I cannot, at the moment, see anything which

would justify a conclusion that a lessee of private

land was an owner for the purposes of section 3.

MS KIEFEL. No, Your Honour. I am sorry, I misunderstood

you. That does not follow from section 3.

Section 3 is - as I thought I had earlier said,

the definition here of "owner" is limited to
the situation where the Crown grants some type

of interest to other people and we would say

it does so because it does not wish to extend

the exemption for rating beyond the Crown.	But
we would say, Your Honour, that because of

His Honour's reasoning, once one starts reading

down subsection(l8l in its reference to adjoining
owner, by allowing provisions such as section 3

to operate with it it must follow that lessees

and other people having duties or management

of land may be served in lieu of the owner.

Thank you, Your Honours.

DEANE J: _Tbank you, Ms Kiefel. The Court need not trouble

- ¥OU, Mr Gallagher. It appears to us that the

judgment of the Full Court turns very much on

the particular circumstances of the case, including the status of the particular land. Notwithstanding the submissions of the applicant, we are not

persuaded that the actual decision of the Full

Court is attended by sufficient doubt to warrant

the grant of special leave to appeal.

MR GALLAGHER. If the Court pleases, the respondent asks

for costs.

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DEANE J:	Ms Kiefel?
MS KIEFEL:	There is nothing I can say in opposition,

Your Honours.

DEANE J:	Very well, the order of the Court is that special
leave to appeal is refused with costs.

AT 11.02 AM THE MATTER WAS ADJOURNED SINE DIE

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