SPB (Australia) Pty Ltd v Town of Claremont
[2004] WASC 91
SPB (AUSTRALIA) PTY LTD & ANOR -v- TOWN OF CLAREMONT [2004] WASC 91
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 91 | |
| Case No: | CIV:1573/2003 | 4 MAY 2004 | |
| Coram: | MCKECHNIE J | 4/05/04 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Injunction refused | ||
| B | |||
| PDF Version |
| Parties: | SPB (AUSTRALIA) PTY LTD COLES MYER LTD TOWN OF CLAREMONT |
Catchwords: | Town planning and development Proposed council meeting Step in the process Appeal pending Whether for improper purpose Natural justice Whether sufficient right to be heard Injunction to restrain meeting Application of settled principle |
Legislation: | Nil |
Case References: | Bonton v City of South Perth (1982) WAR 213 Dunlop v Woollahra Municipal Council (1975) 2 NSWLR 446 Samrein v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- COLES MYER LTD
Plaintiffs
AND
TOWN OF CLAREMONT
Defendant
Catchwords:
Town planning and development - Proposed council meeting - Step in the process - Appeal pending - Whether for improper purpose - Natural justice - Whether sufficient right to be heard - Injunction to restrain meeting - Application of settled principle
Legislation:
Nil
Result:
Injunction refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiffs : Mr T O Coyle
Defendant : Mr K M Pettit SC & Mr C A Slarke
Solicitors:
Plaintiffs : Phillips Fox
Defendant : McLeods
Case(s) referred to in judgment(s):
Bonton v City of South Perth (1982) WAR 213
Dunlop v Woollahra Municipal Council (1975) 2 NSWLR 446
Samrein v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467
Case(s) also cited:
Nil
(Page 3)
1 MCKECHNIE J: The plaintiffs seek an interlocutory injunction restraining a meeting of Claremont Town Council to be held later today. In view of the urgency of the matter, I will simply outline my reasons for refusing the application.
2 The injunction, if granted, will prevent the council from taking steps to progress the Town Centre Plan. An injunction had been granted by Wheeler J following the deemed refusal of the plaintiffs' development application in order to allow the plaintiffs to appeal to the Town Planning Appeal Tribunal. That appeal has been concluded and the injunction has expired. The plaintiffs lost and have appealed against that decision to this Court.
3 The plaintiffs effectively seek a stay pending the determination of the appeal as it is common ground that in any rehearing before the Town Planning Appeal Tribunal, should the appeal to this Court be successful, the Tribunal, or indeed this Court, will apply the statutory scheme and other town planning principles as are in force at the time of the hearing.
4 The plaintiffs claim there is an arguable case for an injunction on two principal bases: natural justice, and improper purpose. They point to the prejudice which will flow if an injunction is not granted and the fact, as I acknowledge, that damages are not an adequate remedy.
5 The central issue in the dispute between the parties, and which gives rise to the litigation, is the issue of height restrictions within the Claremont Town Centre. Put simply, the plaintiffs wish to develop an amenity above the height which council appears to be moving to restrict. Tonight's meeting is a step in the process. The specific issue in dispute relates to the draft guidelines.
Natural justice
6 Although the plaintiffs' written submissions developed an argument as to a breach of natural justice, in oral submissions the plaintiffs' counsel appeared to concede that there was no arguable issue in this respect.
7 Because of the urgency of the application, the defendant did not file a responsive affidavit until mid-day yesterday. Mr Kyron who is the CEO of the Town of Claremont has identified the process for obtaining community submissions, particularly at par 30(f) and following in his affidavit filed 3 May 2004.
(Page 4)
8 I am satisfied there is no substance in the allegation of a breach of the rules of natural justice and that the plaintiffs have been afforded sufficient opportunity, of which they have availed, to make submissions in relation to the matters in issue.
Improper purpose
9 The plaintiffs' submissions concentrated on this issue which it based primarily, although not of course entirely, on the decision of Wootten J in Dunlop v Woollahra Municipal Council (1975) 2 NSWLR 446 and the cases mentioned in that decision.
10 The defendant, on the other hand, relied particularly on a later decision of this court in Bonton v City of South Perth (1982) WAR 213. I do not understand the central relevant principle drawn from each case to be in serious contest. A planning body must not exercise its powers mala fides or for an improper purpose. If so acting, then it is not exercising its powers to further the purposes of the act and if authority be needed for such an elementary proposition it can be found in Samrein v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467.
11 There are many examples within the cases as to what may constitute an improper purpose. Those cases are set out in Dunlop v Woollahra Municipal Council and there are others but, in view of the time, I have concentrated chiefly on those.
12 Acting with a substantial purpose to defeat an appeal may be an improper purpose. Dunlop and Bonton were decisions after a trial or a hearing and involved final determination on matters of evidence. The plaintiffs here do not point to any direct evidence of improper purpose but submit an inference of improper purpose can be drawn from a number of facts as set out in their written submissions at par 10 and par 11 in particular.
13 The inference, it is contended, gives rises to an arguable case so that the balance of convenience and other considerations make it appropriate to grant an injunction. I am conscious that this is an interlocutory process, however, I do have sworn evidence in the form of Mr Kyron's affidavit which I must take into account.
14 Objection was taken to one portion of the affidavit as stating a conclusion. I over-ruled the objection. I consider that the CEO of the Town of Claremont is in a position to depose to all of the matters within
(Page 5)
- the affidavit and I accept into evidence all of his statements. It is unnecessary, however, to set them out.
15 In summary, it is clear that the planning process for the Town Centre has been in train for some years. The issue of height restrictions was live well before the development application was lodged. It is incorrect factually to assert, as the plaintiffs do, that all steps taken in relation to the draft guidelines, Amendment No 86 and the Town Centre Plan, were initiated after the plaintiffs' development application was refused.
16 Although it is further asserted that the defendant proceeded in some haste in some respects, the Council has provided a reasonable explanation. I do note from the Minister's letter of 18 September 2002 that she urged the Council to expedite its work in developing a suitable range of planning controls for the Town Centre.
17 I do not consider that the Town of Claremont is premature in adopting a Town Centre Plan. Its adoption is another step it is true, but its adoption will have limited effect until final approval. Whether or not the plan shown should be referred to the WA Planning Commission, the eventual attitude of the Planning Commission to the plan is, in my opinion, neither here nor there.
18 The WA Planning Commission has expressed its views on height restrictions, through the Minister, and the evidence is that the Town of Claremont has modified its approach in light of those views. No improper purpose can be inferred from any difference in views between the WA Planning Commission and the Town of Claremont or in the Town of Claremont's continuation of a process towards the enactment of Amendment No 86 or policy guidelines on height restrictions.
19 In summary, on the state of the case at present, I consider the evidence of Mr Kyron rebuts any possible inference of improper conduct which could be drawn from the facts and the matters contained within Mr Davis's affidavits.
20 Furthermore, even if I were to infer that the purpose of the Council was to have in place a policy which might affect a possible re-hearing, in view of the history, including the minutes of council meetings, I do not conclude that this is a dominant purpose leading to an inference of impropriety.
21 Although the facts are different, there is much similarity in principle between this case and Bonton and I expressly follow the implicit
(Page 6)
- statements of principle to be found in the course of Brinsden J's conclusions of fact, especially at 219 and 220.
22 On the whole of the evidence, no inference of improper purpose by the Town of Claremont can be drawn. There is no evidence of any breach of the rules of natural justice. There is no arguable case which would warrant granting injunctive relief. The application for an interlocutory injunction is therefore refused.
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