South Hobart Investments Pty Ltd v Clarence City Council

[2007] HCATrans 604

[2007] HCATrans 604

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H1 of 2007

B e t w e e n -

SOUTH HOBART INVESTMENTS PTY LTD

Applicant

and

CLARENCE CITY COUNCIL

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO HOBART

ON FRIDAY, 5 OCTOBER 2007, AT 9.31 AM

Copyright in the High Court of Australia

MR S.P. ESTCOURT, QC:   May it please the Court , I appear with MR A.C.R. SPENCE for the applicant.  (instructed by Page Seager Lawyers)

MR M.E. O’FARRELL:   If it please the Court, I appear for the respondent.  (instructed by Dobson Mitchell & Allport)

KIRBY J:   Yes, Mr Estcourt.

MR ESTCOURT:   Your Honour, we do not pretend that this application is anything other than a request to the Court to entertain the proposed appeal as a visitation case, but the decision of the Full Court, in our submission, is patently unjust.  It is based, we say, on a mistake as to what was raised by the petition that was received by the respondent and a mistake as to what was contained in the applicant’s expert consultant’s report. 

The Full Court assumed, without deciding that the applicant’s loss of the right to make another similar planning application for two years, which was occasioned by the respondent’s decision, entitled the applicant to procedural fairness.  We submit that that assumption is correct and that that point is uncontroversial.  The respondent’s decision clearly affected the applicant’s interests in advancing the potential use of its land.  Whether that is a right or an interest which is affected by the decision, we submit, is immaterial.  What is controversial, in our submission, is the critical reasoning of the Full Court, namely, that the applicant had in fact been afforded natural justice.  That reasoning, in our submission, was premised on a non‑existent fact or on an impermissible inference. 

KIRBY J:   You are not running before us the Wednesbury unreasonableness argument that succeeded before the primary judge?

MR ESTCOURT:   Not at all, your Honour.  We do not embrace that. 

KIRBY J:   So it is solely the question of the natural justice argument that you won at first instance and lost in the Full Court? 

MR ESTCOURT:   That is correct, your Honour.  The Full Court held that the planning objection which was contained in the petition that the Council received was nothing more than material of which the applicant was generally aware.  That is just completely wrong.

HAYNE J:   Where do we best find the error that you say the Full Court made?  Where is the passage in the reasons that best exemplifies it? 

MR ESTCOURT:   It is the very assumption that the material contained in the petition was material of which the applicants were generally aware that is wrong.  One looks at what the petition said in order to ascertain what the petition raised and one looks at the facts as found in order to ascertain what the applicant was in fact aware of.  The petition is probably easiest found, Justice Hayne, at page 36 of the application book in the judgment of the Full Court where it is set out at about line 12.

KIRBY J:   What I could not understand reading this case was why your client, as a well‑advised and investing developer with good lawyers and good access to the best advice and knowing how things operate, did not take advantage of the opportunity of turning up at the Council.  I mean, everyone in Australia knows that when councils have the responsibility of deciding development applications local people can sometimes have very strong points of view and can go along and cause a lot of democratic fuss.  I just did not understand why your client just sat on its hands and allowed the matter to go to the Council and did not bother to have somebody vigilant there to put their point of view.

MR ESTCOURT:   There are two answers to that, Justice Kirby.  The first is that with the best will in the world the applicant could not have ascertained that there would be opposition in the form of a petition lodged in respect of the proposal which raised an argument which was completely out of left field.

HAYNE J:   I am sorry, what is the argument out of left field? 

MR ESTCOURT:   That 132 people subscribed to a planning policy objection which had never been raised in any of the expert’s reports or in any other way.  The second paragraph of the petition raises a matter that was out of left field.  It is something that simply was not canvassed as a planning objection.  This notion that somehow the land was particularly unique because it united a greenbelt with an area of agricultural value, this is something that was simply never canvassed anywhere. 

KIRBY J:   But your client was put on notice of the fact that the matter would be coming before the Council on the given date, was it not?

MR ESTCOURT:   Yes, that is true. 

KIRBY J:   Your client had the opportunity to be there and to say whatever it wanted to say.  That is true too, is it not?

MR ESTCOURT:   Yes, your Honour. 

KIRBY J:   And your client knew that in this particular case the planning decision was committed to a local government authority of elected representatives.

MR ESTCOURT:   Yes, that is so.

KIRBY J:   And your client would know that in local government councils, in the nature of democracy at its most basic level in Australia, people can have their say and are often heard and are often influential because of the very democratic character of local government.

MR ESTCOURT:   Yes.  That is perfectly true.

KIRBY J:   So all of that, and instead of turning up on the notice that you received, you preferred to sit on your hands and just hope and pray everything would sail through.  It just does not seem to me that you have much of an argument of natural justice, given the way local government operates in this country and everyone knows how it operates.

MR ESTCOURT:   That is so, your Honour, but in this State, in order to address the Council at a meeting where such a matter is being considered, one needs permission. 

KIRBY J:   Of course. 

MR ESTCOURT:   Yes.  It is not routinely to be expected that something which has never been canvassed before as a significant planning argument will be raised for the first time at the Council meeting and that no notice will be given of it.  I accept that all of what your Honour Justice Kirby says is correct, but one would have an expectation that procedural fairness would require some notice of something important coming up for the first time to be given.

KIRBY J:   But the nature of the democratic process is that all sorts of left field, right field, centre field points are going to potentially arise and this is a case where it is committed to a local authority and you were on notice and had the chance to be there.  I just do not see why the Full Court is wrong in saying that you did not suffer a procedural unfairness in the knowledge that you had and the notice that you had. 

MR ESTCOURT:   Yes.  Your Honour, even if that were so, there is something quite unique about this particular form of application to a local council, that is to say, that in this State there is no other decision that can be made of a planning nature by a local council which is not subject to a review, which is not subject to a merits appeal either to the planning commission or the planning tribunal.  In doing what the Council did in this case ‑ ‑ ‑

KIRBY J:   All the more reason to turn up, I would have thought. 

MR ESTCOURT:   Yes, that is so, your Honour, but, with great respect, two wrongs do not necessarily make a right.  I am focusing on what the Council ought to have done in providing procedural fairness.  As the Court has said many times, we are talking about procedural fairness, not a fair outcome.  We say what the Council should have done when confronted with 132 people subscribing to a new idea was simply to have adjourned the Council meeting.  That is really all we say, that all that was required was an adjournment of consideration of the application to allow the applicant to respond.  That is all we have ever asked for and we have now come a long way to obtain that.  May it please the Court.

KIRBY J:   Mr O’Farrell, it is always such a pleasure to come to Hobart.  What do you say about the point of left field?  I mean, the points that are made in the Full Court are very strong; that notice was given, that it is committed to a democratic body and that things can arise that they elected not to turn up. but what do you say about what is suggested to be the anterior problem that there was not a disclosure of something which was from left field and something entirely new and not to be expected by the applicant?

MR O’FARRELL:   Your Honour, we say effectively two things.  Firstly, for the reasons that your Honour Justice Kirby has just articulated, the notion of new things coming to Council during a Council meeting is an incident of the system.  It is an incident that simply occurs under the relevant statutory framework. 

KIRBY J:   I would agree with that if what comes up is something that is to be expected, but what Mr Estcourt has said is that what came up was not really to be expected, it was an entirely new idea and that it was that idea that proved fatal to his client.

MR O’FARRELL:   It was expressed, your Honour, as my learned friend has said, in the second paragraph of the petition and is expressed on the basis that, in more general terms, that this was not an appropriate use of the land concerned, then the reason why it was not the appropriate use, because it unites the Acton Corridor Greenbelt with the Backhouse Lane and Coal River Valley agricultural areas.

KIRBY J:   Is Mr Estcourt right as a matter of fact that that point had never earlier been raised in any of the planning objections to the development?

MR O’FARRELL:   That is correct, your Honour.

KIRBY J:   That is agreed, that this was a new idea?

MR O’FARRELL:   Well, that insofar as it talked about the uniting of the Acton Corridor Greenbelt with the Backhouse Lane and Coal River Valley agricultural areas, yes, that was a new issue.  It was a new statement of fact. 

KIRBY J:   All right.  Why was it not such an issue as ought to have been put on notice so that the applicant could respond to it and put whatever it wanted to say in answer to it before the Council made its decision?

MR O’FARRELL:   Because, your Honour, it was effectively rooted in concepts and ideas of land use and the use to which this land would particularly be made.  The whole thrust of the applicant’s application to the Council concerned an attempt to rezone land and then subdivide and develop it.  In that process, your Honour, the applicant’s arguments, as the Full Court correctly said, in my submission, were detailed in their consultant’s report and detailed at length in their consultant’s report as to issues of land use, amenity and the like.  The Full Court’s finding on this point, your Honour, is that all of that material, that is, including the petition, did no more than articulate the generality ‑ ‑ ‑

HAYNE J:   This is pages 36 and 37 of the application book, paragraph 38 of the reasons.

MR O’FARRELL:   Yes, I am sorry, Justice Hayne, paragraph 38, yes, at the bottom: 

as all of that material did no more than articulate the generality, of which the respondent was well aware, that there was opposition to his request being granted on the grounds that it would adversely impact on the amenity of the area.

In my submission, that finding is correct.  It was well supported in the judgment.  It is supported, in fact, at page 38 of the application book in a finding that is not apparently attacked.  At paragraph 36, about line 33:

the respondent knew that there was going to be opposition to his request for an amendment and development application on the grounds of adverse impact –

et cetera.  Your Honour, in my submission, the mere factual statement that the Acton Corridor might unite Backhouse Lane and Coal River did not advance the argument one iota.

KIRBY J:   Yes.  I think we have heard enough from you, Mr O’Farrell.  Mr Estcourt, anything in reply?

MR ESTCOURT:   Very simply, your Honour.  To say that three neighbours were concerned about their own personal residential amenity is a vastly different thing to saying that 132 people were concerned about rural and agricultural amenity.  It is a massive blurring of the distinction for my learned friend to say that it was all about land use and therefore we should have known.  I thank my learned friend for conceding that this was a brand new issue.  May it please the Court.

KIRBY J:   This application for special leave comes from orders of the Full Court of the Supreme Court of Tasmania.  That court unanimously allowed an appeal from the primary judge in the Supreme Court (Justice Tennent), and reversed her Honour’s orders.

The case concerns the content of the duty of the respondent, a local government body entrusted with planning decisions, to afford the applicant, a developer, natural justice in the making of a planning decision.  The applicant was notified of the meeting of the respondent and afforded the opportunity to attend.  However, it chose not to do so.

The primary judge held that, having received the petition from local residents contesting the applicant’s proposal, the respondent was required to notify the applicant and to afford it the opportunity to be heard before making a decision rejecting the development.  By attention to the language of the applicable legislation and for other convincing reasons the Full Court demonstrated that the argument of the applicant was unconvincing.  As Justice Blow pointed out in the Full Court, it was difficult to reconcile the applicant’s argument, at least as a general principle, with the time limit imposed for the making of such decisions.  Moreover, in the nature of a local authority hearing in Australia, public reactions to planning proposals were to be expected as a possibility.  What was in issue was the land use proposed by the applicant.  The petition merely articulated one aspect of objection to that use. 

The view taken by the Full Court as to the duty of the respondent in respect of the petition was one open to it.  In our opinion, it was the preferable view.  It sustained the conclusion that was reached and the orders that were made.  An appeal to this Court would not enjoy reasonable prospects of success.

The primary judge also upheld the applicant’s complaint on the basis of the principle in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. This suggested unreasonableness on the part of the respondent. However, that point was not sustained in the Full Court. It was not defended before this Court, and rightly so.

The application for special leave must accordingly be dismissed.  The applicant must pay the respondent’s costs.

AT 9.49 AM THE MATTER WAS CONCLUDED