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

Copyright in the High Court of Australia

AIT 5/1/JM 1 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

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so far as we know, there is no authority to

support the use of the document such as a

development plan as an extrinsic aid to

construction of a planning consent itself
which generally runs with the land. That, we
say, with respect, is the special leave point
in this case. It is a factor which bore
heavily in the ultimate conclusion of the

Full Court in both Justice White's decision and

Justice Legoe's decision.

If I can just invite Your Honours to turn

to page 20 of the appeal book, His Honour

Justice White, at line 5, referring to some

measurements on the plans,said:

These measures, marks, figures and symbols

are intelligible by reference to the Port

August Development Plan. I hold that a

Development Plan may be used as an

extrinsic aid to the interpretation of a

consent unless the consent is completely

unambiguous and is contained in a

document which plainly shows that it

contains the whole of the terms and

conditions of the consent.

Then, at page 22, His Honour, at line 3, says:

Certainty in the construction of the 1985

consent can only be achieved by interpreting

it with reference to (i) the architect's

plan (exhibit P6) which is incorporated into

the 1985 consent by specific reference;

(ii) the Development Plan which is an

inseparable part of the matrix of fact and

law within which this consent was issued;

and (iii) (possibly) the application itself.

Now, we say that, with respect, is, as I said

nature of the development plan itself, which	before, extraordinary when one considers the	is a changing document. It is an evolving
document and examples of a development plan -
or this particular development plan is
included in the appeal book.

BRENNAN J:  Mr Hayes, what was it that the development

plan gave certainty to in the construction

of the consent?

MR HAYES:  We say,nothing.

BRENNAN J: Well, if that is so, we do not need to bother

about it, do we?

MR HAYES: Well, nothing in the sense that what His Honour

said was it did give certainty in that His Honour

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was able to conclude from using the development plan in the way in which His Honour applied the provisions of the development plan to construing

the meaning of the consent,which had been given
by the council as being limited to consulting
rooms in the one area shown on the plans and

not a multiple use of consulting rooms, shops

and offices in the whole of the complex. That

is the certainty which His Honour read into

the consent by applying the provisions of the

development plan.

BRENNAN J: If one looks at the plan, at page 24, does

one need to refer to anything except that

document to see the area in respect of which

consent was given to the use of the consulting

rooms?

MR HAYES:	That document is a document which His Honour,
as I understand it, has prepared. That is
at page 24, is that the document?

BRENNAN J: Yes.

MR HAYES:	Yes, His Honour has prepared that from the exhibits. But if one looks at that document,
we say, that looked at in conjunction with
what was applied for, which was the application
for consent, and what was granted, that is the instrument of consent, put the three together
and that is how you construe what was approved.
That document, taking all of those factors in the instance of this case, would not preclude the applicant from using other parts of the
premises for consulting rooms. He was not limited to area 4 as consulting rooms when
one looked at the overall use that was being approved.
WILSON J:	But the architect's plan that accompanied the
application for consent identified only area 4
to be used for consulting rooms?
MR HAYES:	Yes, it did.

WILSON J: That vent a long way, did it not, to being

expressly incorporated with the consent to

limiting the consent so far as consulting rooms

were concerned to the area so marked on the

plan?

MR HAYES:	Yes. Well, we say that must be looked at in the
context of the application itself.  The architect's
plan was one element in the application and the
consent which was ultimately granted.
WILSON J:	Was there anything in the application form that
gave a wider scope to the proposed use of the
premises for consulting rooms beyond area 4?

4

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MR HAYES: Yes, because we say the application form,and

the application itself, was applying for a complex

comprising a multiplicity of uses. At that stage,

and the evidence was that the remainder was not

actually given over to shops and offices, we

say he was saying at that point in time, "I'm

going to use this part as consulting rooms, but

that does not preclude me from using next door

maybe for a bit of consulting rooms as well."

We say it cannot be restricted merely by

looking at what he showed on that plan.

What we say here is the use of the development plan made by the Court to construe the ultimate consent and bringing it into its consideration as extrinsic aid,was wrong in law and it is

an important matter which would justify the

grant of special leave. If special leave were
granted we would then argue, of course, these
other matters that the Full Court was wrong in

arriving at its own conclusions as to the consent.

MASON CJ:	I take it that pages 15 and 16, the bottom of 15
and the top of 16, set out how resort was made
to the Port Augusta.Development Plan for the purpose of arriving at some interpretation of the consent based on the plan itself?
MR HAYES:	Yes, and may I make the point on that, in
this case the evidence was - and the development
plan is a document which enables the council to
depart from it. There is no requirement that
the council has to impose a requirement as to car parking and in fact the evidence was in this case that in 1985 the council departed
from the provisions of the development plan
in allowing the proposal to go ahead not
consistent with the precise requirements for
car parking in the development plan. And yet
what His Honour and the court is doing is
the development plan requires X number of car
saying, "Well, let's look at the consent. Now,
parking spaces.  X number have not been - or
can only be provided if one reads down the area
of land shown in the overall development. Therefore,
you were in breach of the consent." Now, we
say, that is wrong in principle.

MASON CJ: But tell me, why cannot one have resort to the

development plan qs it exists at the relevant

time for determining what is involved in the

application for consent and the consent itself

when we see in those documents symbols, figures,

other reflections of requirements in the plan?

MR HAYES:	Your Honour, our answer to that is this: the developtIEilt
plan as a document is not appropriate and it was never intended to used in that way for

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a number of reasons:	what it is seeking to do;
and the way in which	it is worded; the fact
that the council has	a discretion in departing
from its provisions.

Now, if one can look at it, it will never

be apparent two years, or three years down the

track as to, notwithstanding what might have

been the case at the time, whether the council

in fact was departing from the provisions of
the development plan if you just draw in

statutory requirements to construe a consent.

Can I just give an example? If there was

an application to construct a hall and it was

capable of accommodating some 300 people,

that is structurally accorrrrnodating some 300

people, if the development plan required a
certain number of car parking spaces per person

in that hall, but the council chose to dispense

with that requirement and approved a lesser
number of car parking spaces, if that hall
was subsequently used for the purposes of

over 250 people which did not comply with the

car parking requirement in the development

plan, on this judgment that person might be

held guilty of using it contrary to the

provisions of his consent because there would be

a lesser number of car parking spaces provided

than is required in the development plan, yet

the council would have approved that.

WILSON J: But does that not rather assume an interpretation

of the original application that it was for a

hall to accorrrrnodate say 200 people?

MR HAYES: Well, it does and that is the very point.

WILSON J:	And that is not this case -
MR HAYES:	No, it is not, but if - - -

WILSON J:	- - - on the manner in which the application
was interpreted.
MR HAYES:	- - - one applies the principle that has evolved
in this case it could be applied in that way
and that, we say, shows the absurdity of using
a document such as the development plan as an
aid to construing a consent. A consent, on
all the authorities that we know, is and has
to be certain; it runs with the land; it is
registered on a register that the council is
required to keep and on the case of SLOUGH ESTATES
LIMITED V SLOUGH BOROUGH COUNCIL referred to
on the judgments. there it was held that a
consent should be certain and should be able
to be construed from the document itself or
its accompanying documents·that you could identify,
that is, the application and the plans.

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Now, we say to go beyond that and draw

in this other statutory document as an aid

to construing the consent is wrong as a matter

of law and is a matter which warrants consideration

by this Court because it is an important point.

It is not only limited to statutory schemes

that we have here because our statutory planning

scheme is reflected in a number of other States
which have local or regional development plans

and it is of that importance which justifies

consideration of special leave.

MASON CJ:	Mr Hayes, can I just take you to page 16 for
a  moment where the conditions to the consent
are set out? If you look at condition (5), what is the reference to"the land division proposal
which is required for the development "mean?
What is the land division proposal there referred
to?
MR HAYES:	That condition(S)refers to:

the land division proposal which is

required for the development now approved.

Under the terms of the provisions of the

PLANNING ACT, you need to get approval for use and, in some cases, if you so choose, if you

want to divide up land you need to get a separate

approval for the division of land, which is a

separate and distinct planning approval as opposed

to the use approval. Now, ,very often what councils do is to say, "Well, we'll give you a

planning approval",knowing that at some stage

that that planning approval, once it is established

will be the subject of a separate application to

divide the actual land off with that approval.

And it may be that the reference there -

the Council supports in principle the

land division proposal which is required

for the development now approved -

included an application to divide the land under

the control of division provisions of the

PLANNING ACT.

MASON CJ: It occurs to me that the land division proposal

referred to may be the division between consulting

rooms and shops?

MR HAYES:	No, it is not.	We can say that categorically.
MASON CJ:	Can you?

MR HAYES:	Because there is no suggestion that that is
what it refers to. It refers to a completely
separate and distinct proposal which is dealt with quite separately by the council. But

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very often councils do it in the one hit, or

at least give an indication at the same time

of the use approval.

If the Court pleases, that, we say, is

the special leave point. It is one that

coloured the judgment of the Full Court and

it is an important enough point which justifies

the grant of special leave because of the

importance of the principle and the principle

was not supported by any authority, and we

have not been able to find any authority, which
would justify using a document such as the

development plan as an extrinsic aid to the

construction of a consent.

WILSON J:	Mr Hayes, I am not clear as to the effect that resort to the development plan had.
It seems to me that it was a very subsidiary
and minor role that it played. If you
look at page 15 and the first sentence in
the new paragraph corrrrnencing on that page:

Reading the plan and the consent

together -

and the plan there is the plan submitted with

the application -

the only reasonable inference is that the
council was approving an intended use in

area 4 as consulting room(s) and an intended

us in areas 1, 2 and 3 as offices and

shops at the will of the owner.

And then the reference to the development plan

is made by way of confirming that interpretation.

So that even if the development plan was

to be excluded entirely as a result of any

further consideration of this question, that

first sentence still determines the construction

of the consent, does it not?

MR HAYES: Well, Your Honour, at first blush that may

well appear to be the case, but when one

looks at that statement in the context of

what follows at page 22, the reference to	the11 inseparable part of the matrix of fact
andlaw" which the development plan plays,
and when one looks at His Honour Mr Justice Legoe's
decision, at page 48 of the appeal book, at
line 4:

I am satisfied that all of this evidence

was intrinsically relevant ..... I simply

do not accept that the development plan is

an sense 'extrinsic' material. By

section 47(9) the statute mandatorily

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requires the consenting authority or

planning authority, when considering

whether to consent to a proposed development

to have regard to the developm:nt plan ..... Not

only that but the planning authority is not

to make a decision that is seriously at

variance with those provisions.

Put all that into context, we say it played

a very important part in the ultimate decision

of construing that consent. But I agree

with Your Honour, if one looked at page 15 only,

that one sentence taken alone might suggest that

what at least His Honour Mr Justice White at that

stage is saying is, "Well, I've only looked at

the plan." But, we say that must be looked

at in the context of the whole judgment and

when it is done so in that way, the development

plan played a very important part.

WILSON J: Yes, thank you.

MASON CJ:	Thank you, Mr Hayes.	The Court need not trouble
you, Mr Heywood-Smith.

In the opinion of the Court, the decision

of the Full Court of the Supreme Court is
not attended with sufficient doubt to justify

the grant of special leave to appeal.	The
application is therefore refused.

MR HEYWOOD-SMITH: I make an application for costs, if the

Court pleases.

MASON CJ:	You do not oppose costs, Mr Hayes?
MR HAYES:	No, sir.
MASON CJ:	The application is refused with costs.
AT 11.16 AM THE MATTER WAS ADJOURNED SINE DIE

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