Saggers and Bell v Valtone Pty Limited and the Darling Harbour Authority

[1988] NSWLEC 9

Land and Environment Court

of New South Wales

CITATION:	Saggers and Bell v Valtone Pty Limited and The Darling Harbour Authority [1988] NSWLEC 9
PARTIES:	APPLICANTS Arthur Colin Saggers and Robert Bell RESP0NDENTS Valtone Pty Limited and The Darling Harbour Authority
FILE NUMBER(S):	40142 of 1988
CORAM:	Hemmings J
KEY ISSUES:	:-
LEGISLATION CITED:	Darling Harbour Authority Act 1984 Land and Environment Court Act
CASES CITED:	Jesasu Pty Limited v. Minister for Mineral Resources, [1987] ; O'Sullivan v. Truth and Sportsman Ltd (1957); Attorney General of Hong Kong v. Tse Hung-lit, [1986]; Lord Wilberforce in Alphacell Ltd v. Woodward [1972]
DATES OF HEARING:
DATE OF JUDGMENT:	07/21/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The applicants are former stallholders licensed by the Sydney Market Authority to use premises in Haymarket known as "Paddy's Market", and being comprised in Certificate of Title Folio Identifiers 1/562950, 2/562/950 and 3/562950 ("the land"). They seek declarations and other orders concerning the lawfulness of a permit granted by the second respondent ("the Authority") pursuant to the Darling Harbour Authority Act 1984 ("the Act") with respect to the development of the land as a "Studio City Project" involving, inter alia, the construction of a tower building comprising thirty-six storeys of office space.

The Authority is a corporation constituted under the said Act to manage the overall development of the Darling Harbour Area in Port Jackson, with responsibility for the preparation of an overall development programme, its management and implementation. The Authority entered into an agreement for lease of the land on 25th January, 1988 with the first respondent ("Valtone"). The Authority agreed to grant to Valtone a lease of the land for ninety-nine years. Valtone covenanted to construct improvements within three years from the date of approval by the Authority of its development proposals. It is common ground that such proposal includes, inter alia, an office tower of about thirty-six floors of office space. Valtone agreed to grant to the Sydney Market Authority a sublease of a specified area upon completion of the redevelopment. The Sydney Market Authority was given a licence to occupy the land until determined by notice. This permitted Paddy's Market to continue, but after receipt of such notice, it revoked

licences of stallholders by notice which took effect from 18th or 19th June (as applicable to each permit). The stallholders have been invited to take up stands at a temporary site.

Needham J, of the Supreme Court in its Equity Division, dismissed a summons challenging the validity of such notices. He found that the Sydney Market Authority had surrendered whatever interest it had in the land and that the stallholders' rights had thereby been determined.

At its meeting of 20th June, 1988 the Authority gave conditional approval pursuant to the Act to a permit application submitted by Valtone.

No doubt encouraged by a refusal by Needham J. to accept that a thirty-six floor office tower could be "commercial facilities", the applicants commenced proceedings in this Court claiming that it was therefore not development for which the Authority could grant a permit pursuant to that Act, and:|CF2.|PSI

"1. A declaration that the development known as "Studio City Project" (being the development plans which appear as an exhibit to the agreement for lease made between the Respondents and the Sydney Market Authority on or about 25 January, 1988) ("the development") may not lawfully be carried out upon the land comprised in Certificates of Title Folio Identifiers 1/562950, 2/562950 and 3/562950 ("the land").

2. A declaration that the permit granted by the Second Respondent to the First Respondent under the Darling Harbour Authority Act ("the Act") in respect of works incidental to the development on or about 21 June, 1988 ("the permit") was void and of no effect.

3. An order that the First Respondent reinstate the premises to the state they were in prior to any work commencing under the permit." |CF1.|PSO

No submissions were made at that time with respect to the standing of the applicants to maintain the proceedings, and on 8th July, 1988 on an interlocutory basis I concluded that the applicants raised a triable issue as to the validity of such permit. On the evidence before me at that stage I was of the opinion that the applicants had good prospects of success in their challenge to the lawfulness of the overall development as proposed for the land. Interlocutory orders were made restraining work on the land pursuant to such permit and early hearing fixed on a final basis.

This Court has, pursuant to s.20 of the Land and Environment Court Act, the same civil jurisdiction as the Supreme Court would, but for s.71, have to hear and dispose of proceedings: |CF2.|PSI

"a) To enforce any right, obligation or duty conferred or imposed by a planning or environmental law;

b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law;

c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function; and

d) whether or not as provided by section 68 of the Supreme Court Act, 1970 - to award damages for a breach of the agreement referred to in subsection (3)(c)." |CF1.|PSO

The Darling Harbour Authority Act 1984 is for such purposes a planning or environmental law.

It is common ground that this Court has jurisdiction to make the orders sought, but the respondents submit that the applicants do not have the standing to maintain the proceedings because they do not have a sufficient interest in the subject matter. I was not requested to deal with this issue as a preliminary matter.

The respondents submit that as a consequence of the decision of Needham J. the applicants cannot demonstrate any right to reoccupy the land, and that they do not have an interest exceeding that of members of the public generally.

The applicants claim a close relationship to the subject matter, and a special interest in the determination of the lawfulness of the permit, or necessary further permits for the development.

Whilst the Act is a planning and environmental law, an applicant for orders to review the exercise of a function, or for declarations of right in relation to any such obligation or duty under that Act, does not have the almost unlimited standing as that conferred by s.123 of the Environmental Planning and Assessment Act, 1979 ("the E.P.& A. Act"). Standing to maintain these proceedings is that conferred at common law.

Public law duties may be enforced at the suit of persons who have a special interest in the subject matter of the action, though they have no private right to enforce, the interest being special in comparison with the interests of the public at large. That interest need not be peculiar to the applicant; others may have it, and it is enough that it is not the same as that of members of the public generally; Onus v. Alcoa of Australia Limited (1981) 55 A.L.J.R. 631, at 638.

The criterion of "special interest" supplies no rule to distinguish this case and the Australian Conservation Foundation v. Commonwealth, (1981) 146 C.L.R. 493, but Stephen J. in Onus (supra) at 637 stated: |CF2.|PSI

"As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subjectmatter and of the closeness of that plaintiff's relationship to that subjectmatter."|CF1.|PSO

Murphy J., at 638, considered that the Court should adopt a liberal view on standing, and I observe that in the Courts |CF2.|PSI"... the movement is all one way, that is, towards relaxing earlier restrictions on standing to sue."|CF1.|PSO (Brennan J. "The Purpose and Scope of Judicial Review", 1986 Australian Bar Review, 93 at 100.) Such approach was adopted by Cripps C.J. in Building Owners & Managers Association of Australia Ltd v. Sydney City Council, (1984) 53 L.G.R.A. 54, at 72. See also Sydney City Council v. Building Owners & Managers Association of Australia Ltd (1985) 55 L.G.R.A. 444, at 449-50.

Applicant Colin Arthur Saggers has been a stallholder at "Paddy's" for something like twenty-three years. His livelihood is a business identified with it and a Haymarket location. On behalf of himself and other stallholders the applicant Saggers has made a written offer to Valtone to purchase its interest in the land.

Licences to operate stalls have been terminated to enable Valtone to commence work on the preliminary stages for the construction of the development described in the Agreement for Lease. A permit from the Authority pursuant to the Act is required for that development.

The Minister for Public Works gave the applicant Robert Clive Bell, on behalf of the Paddy's Market Stall Holders' Association, "guarantees" in writing that Valtone's development, when completed, would accommodate 85% of the existing number of stalls, and in the meantime provision of a temporary site would be made during construction of the permanent market. The applicants are likely to lose money until reinstated at the land. They cannot be reinstated by Valtone unless a lawful permit to construct the Studio City proposal is and can be granted by the Authority. I am satisfied on the evidence that the commercial viability of that project depends upon the inclusion of the erection of the thirty-six floor office tower and its lease at commercial rents.

Needham J. has expressly rejected submissions that Valtone's office tower comes within the purview of "commercial facilities". However, it is essential that it be so for it to be the kind of development which could be the subject of a permit by the Authority. Serious questions therefore arise as to the obligations and duties in the exercise of functions by the Authority with respect to Valtone's development. In my opinion, the validity of the permit and likely delay in or inability or refusal by the Authority to exercise such function to permit the development as a consequence of such possible unlawfulness establishes an interest of the applicants not the same as that of members of the public generally.

In my judgment, the applicants have the necessary common law standing to maintain these proceedings for the orders they seek.

The applicants submit that the permit is void because it purports to approve "development" of a kind prohibited by the Darling Harbour Development Plan No. 1 ("the Development Plan"). The respondents submit that such permit does not approve development at all, and approves only the demolition of part of the building.

The Development Plan was made pursuant to Part IV of the Act and, I assume, after the necessary consultation with the Minister for Planning and Environment. Such Development Plan makes provision for or with respect to controlling development in relation to land in the Development Area of Darling Harbour and, except to the extent otherwise provided in the regulations, the provisions of the E.P.& A. Act and other specified Acts do not apply to that area. Where a development plan provides that specified development may not be carried out without a permit thereunder, or it is prohibited, a person shall not carry out such development at all or unless the necessary permit is obtained (s.38). A permit granted by the Authority otherwise than in accordance with the provisions of the Act, or the development plan is void (s.41).

In that Act "development" means (s.3(1)): |CF2.|PSI

"... in relation to land:

a) the erection of a building on that land;

b) the carrying out of a work in, on, over or under that land; c) the use of that land or of a building or work on that land; or

d) the subdivision of that land;" |CF1.|PSO

A reference to the erection of a building includes (s.3(3)(a)):|CF2.|PSI

"... a reference to the rebuilding of, the making of structural alterations to, or the enlargement or extension of a building or the placing or relocating of a building on land;" |CF1.|PSO

The "carrying out" of development includes (s.3(3)(d)): |CF2.|PSI

"... a reference to the erection of a building, the carrying out of a work, the use of land or of a building or work, or the subdivision of land, as the case may require." |CF1.|PSO

I note that each of the above definitions is almost identical to that contained in the E.P.& A. Act.

In the Development Plan "demolition" (cl.5): |CF2.|PSI

"... in relation to a building or work, means the damaging, defacing, destruction, pulling down or removal of that building or work, in whole or in part;" |CF1.|PSO

Development is prohibited by the Development Plan if not of a kind described in Schedule 1, or of a kind incidental or subsidiary thereto (cl.6, 7).

Schedule 1 provides: |CF2.|PSI

"The construction and operation of tourist, educational, recreational, entertainment, cultural and commercial facilities.

The construction of office accommodation for use by public authorities.

The construction and operation of transport facilities.

The carrying out of works for the purpose of beautifying the landscape." |CF1.|PSO

Such development may not be carried out except with a permit obtained therefor (cl.6). The demolition of a building may not be carried out except with a permit being obtained therefor (cl.8).

The only relevant application made to the Authority by Valtone is that dated 17th June, 1988 for a permit to carry out development described as "Site Establishment, Site Closure, Site Investigation, Removal of Existing Roof Sheeting". The application was accompanied by a letter of the same date and a document described as an "Assessment of Environmental Effects". An application dated 14th June, 1988 was withdrawn.

Notice dated 21st June, 1988 was given to Valtone of the determination by the Authority to approve the application, subject to the following conditions: |CF2.|PSI"i) In accordance with Public Works drawings Nos. 01, 08, 09, 10 and 11, the plan accompanying the permit application drawing 87-184 p-1; the plan showing Ground Levels Within Site, Plan No. 2072/1; and the accompanying letter dated 17th June, 1988 describing the scope of the works.

ii) Conditional on arrangements being put in place during asbestos removal so that work is monitored by an independent company in accordance with the National Health and Medical Research Council guidelines." |CF1.|PSO

The said permit was in the prescribed form, and merely gave notice that the application had been determined by the granting of the permit.

Valtone also submits that the said Development Plan does not apply to the proposed Studio City development. The Authority makes no similar submission. Such submission is based upon Clause 4 of the Development Plan, which provides: |CF2.|PSI

"This plan does not apply to or in respect of any act, matter or thing done or caused to be done by the Authority pursuant to Part III of the Act." |CF1.|PSO

For the purposes of cl.4, the exemption of acts of the Authority must be those done pursuant to Part III of the Act. That Part makes provision generally for the objects and functions of the Authority, including power to lease and acquire land. It also provides for the powers of the Authority, including the causing or doing of work on controlled land (s.14).

The Agreement for Lease makes provision for the period within which improvements will be constructed on the land. Valtone submits that the Authority thereby "caused" the building to be constructed. The parties agreed that: |CF2.|PSI

"PART 4 - COMMENCEMENT OF BUILDING

4.1 The Lessee shall within three (3) years from the date of approval by the Lessor (as consent authority) of construction of the Improvements (or such further period as the Lessor may approve in writing) construct the Improvements in accordance with the plans and specifications prepared by or on behalf of the Lessee and approved by the Lessor and in accordance with the Lessee's Proposal." |CF1.|PSO

The time within which it is agreed to construct improvements does not commence unless and until an approval is granted by the Authority as a consent authority pursuant to the Development Plan. If such Plan does not apply to the land, the Authority cannot grant an approval thereunder as a consent authority.

In cl.4 the act, matter or thing must for relevant purposes be the actual carrying out of the development. In order for the Authority to have "caused" it to be done, it is not enough that the Authority leased land and desired that development should take place thereon. The carrying out of the development must be with actual authority, express or implied, "of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other." O'Sullivan v. Truth and Sportsman Ltd (1957) 96 C.L.R. 220. In my opinion, the Authority does not by the Agreement have the capacity to control or influence Valtone to develop the land, nor has it granted any authority to do so, without a prior approval under the Development Plan.

The application of such principles is also regulated by the context (Attorney General of Hong Kong v. Tse Hung-lit, [1986] 3 All E.R. 173), and should be given "a common sense" meaning (Lord Wilberforce in Alphacell Ltd v. Woodward [1972] A.C. 824, at 834). In this Development Plan the context satisfies me that the person to give authority to carry out the development is the consent authority, and not the Authority merely as a lessor. By such agreement for lease of land and construction of a building within an agreed time after approval under the Development Plan, in my opinion it did not cause anything to be done within the meaning of cl.4 so as to remove the need for such approval. The Authority did not do any other act to cause such development to be carried out. I reject the submission and find that the said Development Plan applies to the construction of the proposed development.

In these proceedings the applicants submit that a permit may not be granted for the development pursuant to the Development Plan because the building is not "commercial facilities" and therefore not development of a kind described in Schedule 1. It was not submitted that the said tower was subsidiary, incidental or otherwise subsumed in one of the other kinds of development described in Schedule 1 and which is included in the proposal. I am satisfied that whilst there may be opportunity for some overlapping and joint use of the tower with other development on the land, it is a separate "kind" to that of the other proposed development, and that there is little, if anything, to distinguish the nature and usage of the tower from any contemporary large scale office building in the central business district.

The dispute arises because "commercial facilities" is not defined in the Act, Regulations or Development Plan. The draftsman considered it appropriate to include some definitions in the said Development Plan, and did not exercise the power available (Reg. 4(1)(b)) to incorporate appropriate definitions in instruments such as the Model Provisions prescribed under the E.P.& A. Act. One such definition is "commercial premises". The maker of the Development Plan could have, but did not, employ that long established and well understood definition of "commercial premises" if it was intended to permit the construction of all types of office accommodation in the Darling Harbour Redevelopment Area.

It is a term well known to planners and consent authorities (for at least thirty years), and the makers of environmental planning instruments under the E.P.& A. Act. Such a planning instrument would apply to the land except for the exclusions effected by s.59 of the Act. One inference is that the draftsman deliberately intended "commercial facilities" to mean something different from that comprehended by the wide defined meaning of "commercial premises" usually found in environmental planning instruments.

I have never known an office building to be described, either by the ordinary use of the English language or as a technical term, as "commercial facilities". The words "commercial" and "facilities" as used in Schedule 1 are ordinary English words. It follows that their meaning is a question of fact and not of law, which may be resolved with the assistance of dictionaries. The Shorter Oxford English Dictionary defines "commercial" as of the nature of commerce or engaged in commerce, and "commerce" means the interchange of merchandise and the buying and selling together. A "facility" promotes or makes easier the performance of an activity and it may, in an appropriate context, include a building or complex designed for such activity (see the Macquarie Dictionary).

In my opinion the intention of the draftsman of this Development Plan in the use of such an unusual term in a planning instrument can be found in the objects of the Plan set out in cl.3; i.e. it is to "assist the Authority" in: |CF2.|PSI

Harbour area as part of the State's b) encouraging participation by other persons in educational, recreational, entertainment, area; and

"'Commercial premises' means a building or place commercial purposes, but does not include a this clause or a building or place used for a clause;"|CF1.|PSO

Most "commercial" purposes such as shops, motor showrooms and roadside stalls are usually separately defined in the same definition clause. If not so separately defined (as in this Development Plan), the definition gives "commercial premises" an extremely wide meaning. If the defined term "commercial premises" had been employed it would have permitted approval of all types of office accommodation, including that for public authorities.

I do not think that the draftsman thought that in the ordinary use of the English language office accommodation would be described as "commercial facilities". I am also aided by the fact that the draftsman therefore made express provision for office accommodation, but only such for public authorities, as a kind of development. I take heed of the many cases containing warnings against excessive reliance on the aid to construction known to lawyers by the shorthand of "expressio unius"; see, for example, Jesasu Pty Limited v. Minister for Mineral Resources, [1987] 1 N.S.W.L.R. 110, at 114. I also reject the submission that its inclusion was merely to distinguish public authority office accommodation from that of a commercial nature.

In my opinion, if the respondents are correct as to the meaning of "commercial facilities", the draftsman employed a term so wide as to permit virtually all trades, occupations and businesses, and one so unfamiliar as to make the draft scheme grossly confusing and uncertain when exhibited for public scrutiny. The importance of such public participation in the making of a development plan was emphasised in the Second Reading Speech of the Premier. I have no doubt that, on exhibition of the draft Development Plan, no member of the public, nor relevant public authorities such as the Sydney City Council or the Department of Environment and Planning, or even the draftsman or the Minister, understood a reference to "commercial facilities" as empowering the Authority to grant a permit for a tower block of private office accommodation as part of the Darling Harbour Redevelopment. This is also pointed up by the total absence in the Development Plan of usual development standards for office buildings such as height and

floor space ratio limitations.

It is clear that it is now the intention of the Authority to permit the construction of private office accommodation on the land pursuant to the Development Plan. In my opinion, unless and until a plan to amend the Development Plan in clear and unambiguous terms is exhibited and made pursuant to the provisions of Part IV of the Act, the construction of the proposed office accommodation tower is not development for which a permit might be granted pursuant to cl.6 thereof.

The Authority, however, has not yet granted a permit for the use, construction or operation on the land of the overall development including the thirty-six floor tower for use as private office space. I am prepared to assume that such accommodation will also be constructed to the standards required for accommodation for public authorities. It is not, however, being constructed or to be operated for use by public authorities within the meaning of Schedule 1. I am satisfied on the evidence that the Authority has approved the concept of such tower "in principle" (to adopt the words of Valtone's project/design manager), and that it is likely to approve a permit to carry out development on the land which includes office accommodation not limited for use by public authorities.

In my judgment, the applicants are therefore entitled to the declaration sought as to the power of the Authority to grant a permit for the proposed office tower on the land.

It is common ground that to determine that which was permitted by the permit granted by the Authority on 21st June, 1988 must be found from an examination of the documents referred to in the said conditions imposed thereon, and the documents accompanying the application.

In the said assessment of environmental effects the proposed works are said to |CF2.|PSI"represent the preliminary stage of the Studio City development which forms part of the overall development plan for the Darling Harbour Redevelopment Area"|CF1.|PSO, but elsewhere that |CF2.|PSI"this application does not deal with the erection of the Studio City building, but merely site establishment and investigation for works associated with the demolition of the existing improvements on the site excluding the street facades".|CF1.|PSO

The scope of the works is described in the letter of 17th June, 1988 - |CF2.|PSI

"Site Establishment

Prior to commencing the following works, site establishment will be carried out, including provision and installation within the site of all necessary accommodation and support facilities.

Site Closure

To satisfy mandatory safety and security requirements, all roller shutters and other doors on the perimeter of the site will be securely fastened. One access and egress point to the site will be established in Quay Street.

Site Investigation

After the site has been secured, site investigation will be carried out on the condition of the existing buildings, the nature of sub-soil materials, existing services to be terminated, and appropriate methods for retaining the existing perimeter facades.

Removal of Existing Roof Sheeting

The existing roof sheeting comprises both corrugated iron and asbestos cement materials." |CF1.|PSO

It is quite clear that the removal of existing roof sheeting is "demolition" within the definition in cl.5 of the Development Plan, and that a permit from the Authority is required thereunder. It is common ground that a permit only for demolition granted pursuant to cl.8 of the Development Plan does not have to be for development of a kind described in Schedule 1.

The application was the subject of a report to the Authority in which it was advised that the "major permit application for Studio City" is expected to be submitted for approval of the Authority in August, and that "in the interim, approval is sought for preliminary works - hoarding and asbestos removal". The structural hoarding system application of 14th June was withdrawn by the letter of 17th June, and is not referred to in the subject permit.

The applicants claim that the notice of approval grants two permits; i.e. a permit to carry out development and a permit to demolish part of the building. The carrying out of "development" is alleged to include the "erection" of buildings, i.e. the "placing" of amenities buildings on the land (s.3(3)(a)), the use of such buildings (s.3(3)(d)); structural alterations, i.e. welding of roller doors and provision of services (s.3(3)(a)); work, i.e. digging for site investigation (3(3)(b)); and land use, i.e. site establishment for the Studio City project (3(3)(d)).

The subject application was made in accordance with a programme agreed at a meeting between Valtone's project manager and the Authority on 14th June, 1988. The application is described therein as for "initial works, namely removal of asbestos and erection of hoardings". In the programme the next permit application will cover (i) demolition and (ii) bulk excavation. I note that there could be no question that such bulk excavation is development for which a permit would be required pursuant to cl.6 of the Development Plan.

All of the activities described in the application are not, in my opinion, development; e.g. "site investigation". Those which might otherwise come within such definition are, in my judgment, activities necessary to carry out demolition. Notwithstanding the possible overlapping of the use of amenities buildings and some site establishment, investigation and closure activities in the application which might also relate to the overall development, I am satisfied that the subject permit approved only the necessary works for the removal of asbestos sheeting; i.e. a permit pursuant to cl.8 of the Development Plan for the demolition of part of the building on the land. The carrying out of development, including a tower providing private office accommodation, has not yet been and might not be approved by a permit pursuant to cl.6 of the Development Plan. I therefore reject submissions that the permit granted by the Authority by notice dated 21st June, 1988 for demolition of part of the building on the land is void.

1. I vacate all previous orders.

2. I declare that the development known as "Studio City Project" (being the development plans which appear as an exhibit to the agreement for lease made between the Respondents and the Sydney Market Authority on or about 25 January, 1988) ("the development") may not lawfully be carried out upon the land comprised in Certificates of Title Folio Identifiers 1/562950, 2/562950 and 3/562950 ("the land").

3. Exhibits may be returned.

4. Costs reserved.