Shroff v McSporran - [1988] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A48 of 1987
B e t w e e n -
BEHZAH DARAN SHROFF

Applicant

and
IAN DONALD McSPORRAN

Respondent

Application for special leave
to appeal

MASON CJ
WILSON J

BRENNAN J

Shroff

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 26 AUGUST 1988 AT 10.53 AM

AIT 5/1/JM

26/8/88

MR B.R.M. HAYES, QC: If it please the Court, I appear

with MR A. BESANKO for the applicant in

this matter. (instructed by Mudge Dore & Co)

MR P.A. HEYWOOD-SMITH: If the Court pleases, I appear

for the respondent. (instructed by Johnson
Withers Mccusker & Co)

MASON CJ:

Yes, Mr Hayes.

MR HAYES:

If the Court pleases, this is an application
for special leave to appeal against a decision

of the Full Court.

The Full Court came to hear

the matter as a result of reference to it

from Mr Justice Prior of two particular questions

of law, but the Full Court then went on to deal
with the whole matter as if it was an appeal.

It involved a conviction for a breach of the

PLANNING ACT.

The applicant was convicted

of changing the existing use of a shop and off ice

to a new use of consulting rooms without the

consent of the relevant planning authority.

The defence to the charge was a denial

of any change without consent on the basis that the applicant had previously in 1985 received a planning consent for a multiple use of the
premises for doctor's surgery, consulting rooms,

shops and offices as a complex. The argument
was that he was not limited in that consent
to use any specific part of the premises
exclusively for the uses approved and accordingly,
when he was charged with changing the use by adding
three additional consulting rooms, he was not
changing it without consent.
The court was called upon to construe

from the documents whether the 1985 planning
consent was limited in a way which precluded him
from changing the use in 1986 and in construing

that consent, the Full Court held that it was
permissible to look at extrinsic documents
such as the application, the plans which
accompanied the application and the instrument
of consent itself. It followed the normal
line of authority of SLOUGH ESTATES LIMITED
V SLOUGH BOROUGH COUNCIL and so on, which seem
construing the instrument of consent. It took
to suggest you can bring in these other documents.
into account as an aid to construction the
existence, or the provisions of the development
plan under the PLANNING ACT.
We say the court was wrong in so holding

that it could use as an aid to construction the
development plan. That conclusion, in our
respectful submission, is quite extraordinary
in the context of town planning legislation and

AIT5/2/JM	2	26/8/88
Shroff

so far as we know, there is no authority to
support the use of the document such as a
development…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1988] HCATrans 190
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mr. Shroff, sought to challenge a decision of the Full Court of the Supreme Court of South Australia concerning his conviction for a breach of the Planning Act. The conviction arose from the applicant changing the use of a shop and office to consulting rooms without the necessary planning authority consent. The applicant's defence was that a 1985 planning consent for multiple uses, including doctor's surgery, consulting rooms, shops, and offices, permitted the subsequent change without requiring a new consent.

The central legal issue before the Full Court, and now the High Court, was the proper construction of the 1985 planning consent. Specifically, the court was required to determine whether the consent was limited in a way that precluded the applicant from altering the use of the premises as he did. A key aspect of this determination involved whether extrinsic documents, including the original application, accompanying plans, and the development plan under the Planning Act, could be used as aids to construe the consent instrument.

The Full Court held that it was permissible to consider extrinsic documents, such as the application and plans, as aids to the construction of the planning consent. Furthermore, it was held that the development plan could also be used as an extrinsic aid to interpretation, particularly when the consent itself was not entirely unambiguous. This approach was considered by the applicant to be the critical point for special leave, as they argued that using a development plan as an extrinsic aid to construe a planning consent was an extraordinary proposition without supporting authority and bore heavily on the Full Court's ultimate conclusion.

Orders