Spitzer v Nichols Property Pty Limited

[1990] TASSC 137

Serial No B60/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Spitzer v Nichols Property Pty Limited [1990] TASSC 137; B60/1990

PARTIES:  SPITZER, Bernarda Maria
  v
  NICHOLS PROPERTY PTY LIMITED
  WALLAROO PTY LTD
  trading as SANDY BAY CYCLES
  JOHNSON, Anthony Alban trading as EUMARRAH

FILE NO/S:  1240/1990
DELIVERED ON:  27 September 1990
JUDGMENT OF:  Zeeman J

Judgment Number:  B60/1990
Number of paragraphs:  20

Serial No B60/1990
List "B"
File No 1240/1990

BERNARDA MARIA SPITZER v NICHOLS PROPERTIES PTY LIMITED
and WALLAROO PTY LIMITED trading as SANDY BAY CYCLES
and ANTHONY ALBAN JOHNSON trading as EUMARRAH

REASONS FOR JUDGMENT  ZEEMAN J

27 September 1990

1. This is an application by the plaintiff for an interlocutory injunction to restrain the defendants from carrying out any developmental or building works upon property situate at 13 and 15 Gregory Street, Sandy Bay and from using those properties for the purposes of carrying on any business. In essence, the applicant's case is that for the defendants who are the respondents to the application to carry out any such works or make such use of the subject premises requires them to obtain planning approval from the City of Hobart ("the Corporation") and that upon the evidence, the respondents have not obtained such a planning approval.

1. The principles applicable to an application of this nature were laid down by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1967) 118 CLR 618 at pp622 – 623. The principles there laid down were explained in Magna Alloys and Research Pty Ltd v Ten–Haaf [1978] Tas SR 136. I determine the application in accordance with those principles.

1. The first question which I will consider is whether or not the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is some probability that at the trial of the action, the applicant will be held entitled to relief. That aspect of the matter requires the consideration of the four principal matters which were the subject of argument:

(a)Whether the applicant has standing to bring the action;

(b)Whether the interim order to which I will refer has operation as such pursuant to the provisions of the Local Government Act 1962; and

(c)Whether in the events which have happened, the respondents require a planning approval to do what they have already commenced to do and propose to continue doing;

(d)Whether such a planning approval has been obtained.

1. The determination of any one of those questions against the applicant would be fatal to her chances of succeeding in the action.

1. I deal with the question of standing. The uncontradicted evidence is that the applicant resides at No 32 Grosvenor Street, Sandy Bay. That property is immediately adjacent to No 34 Grosvenor Street, which faces Gregory Street at the junction of that street with Grosvenor Street. The properties at 13 and 15 Gregory Street are about half way along a block which is also bounded by Grosvenor Street. The proposal on the part of the respondents includes altering the nature of the use of the premises at 13 – 15 Gregory Street from residential to that of retail shops. Such a change of use is capable of having an adverse impact on the amenity of the neighbourhood wherein are situated not only the subject premises, but also the premises occupied by the applicant. The question of standing was considered by the High Court in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 and in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493. In the latter case, Gibbs J (as he then was), at p530, said:

"I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi."

1. In the present case, the interest of the applicant in preserving the amenity of the neighbourhood in which she resides is one which gives her sufficient standing to bring this action. It places her apart from members of the public who are merely concerned with enforcing the law. Counsel for the applicant sought to rely on the applicant's involvement with the organisation known as The Sandy Bay Residents' Group as giving her sufficient standing. I do not accept that submission. It may be that particular members of that group have sufficient standing for other reasons, but they cannot derive such standing from their mere membership.

1. The second question which falls for determination is the question of the validity of the interim order which it is said governs the development of the subject land. Interim orders are provided for by s734 of the Local Government Act 1962. Subsection (2A) of that section provides as follows:

"An interim order shall be made by resolution of the council and shall not be effective unless it is –

(a)       approved, in writing, by the Commissioner; and

(b)       published, together with that approval, by the Corporation by public notice."

1. Section 877 of the Act requires publication by public notice to take the form of, inter alia, the publication of the relevant instrument in the Gazette. A copy of the relevant Gazette notice is in evidence. It is quite brief. It contains the following provisions:

"1        In this Interim Order –

'the Scheme' means the City of Hobart Planning Scheme 1982 as provisionally approved by the Acting Commissioner for Town and Country Planning on the twenty–seventh day of July 1984, and includes the documents generally styled 'the plan' and the written scheme;

...

3         Subject to s734(2)(b) of the Local Government Act 1962, all persons proposing to undertake any development of land shall be bound by and comply in all respects with the provisions of the Scheme (and any elaborations or enlargements thereof), which relate to the regulation, control, management, restriction and prohibition of any aspect of the development."

1. Counsel for the respondents submitted that the interim order was not effective because it had not been published as required by s734(2A). That submission was made on two bases:

(a)The publication required was the publication of the whole of the terms of the interim order, which, on its face, included the Scheme as therein defined and any elaborations or enlargements thereof which had been promulgated prior to the making of the interim order; and

(b)The reference to elaborations and enlargements in paragraph 3 permitted the Corporation to publish other documents affecting the terms of the interim order after it had been made without such documents being subject to the statutory prerequisites for the making of an effective interim order.

1. The submission made might be categorised as asserting non–publication of the interim order and alternatively as asserting the uncertainty of the interim order. Both of those matters were considered in McDevitt v McArthur [1919] 15 Tas LR 6. That case was concerned with a by–law made by a Marine Board. Section 131 of the Marine Boards Act 1889 provided that a by–law made by a Marine Board should be of no effect until a copy thereof had been published in the Government Gazette. The Full Court held that there was no publication of a by–law, as required by that section, unless and until there had been published a publication sufficiently complete to leave the reader free from uncertainty as to his duties under the by–law, and that a by–law purporting to be incorporated by reference to certain regulations made by the Sovereign in Council was void. At p7, Nicholls CJ said:

"After further consideration, I find myself again in doubt as to whether I should describe the question to be decided here as a question of non–publication or of uncertainty of the by–law. But I do not think that the matter is of much importance. The essential thing is that the Marine Board is the creature of a Tasmanian statute. Its power to make by–laws is given by that statute and from the statute the by–laws, when made, derive their legal force. The statute provides that, before by–laws shall bind the people, they shall be published. I believe this to mean that they shall be published to all the people of the State, in such a manner that the average intelligent citizen can, by reading them, learn what duties and restrictions they impose upon him. In this case, the by–law published says, in effect, that all persons navigating vessels in certain places shall refer to certain British regulations and shall conform to the provisions of those regulations. ... The effect of the by–law really is 'we refer you to the British regulations.'

No one by looking at the by–law, as the Board published it in the Gazette, can get from it a statement of his duty in steering a boat upon the Upper Derwent. So far, therefore, as the by–law has been published in the Gazette it is uncertain.

It seems to me, after making sure that one's facts up to this point are correct, only necessary to say further that the by–laws, to be valid, must be published in the Gazette and must not be uncertain.

It seems to me to be no doubt that we must look at The Tasmanian Gazette to find out what it is that the Marine Board has published. If we do so, we find a most palpable uncertainty, for none of the details of this by–law are there."

1. Ewing J, at p9, said:

"I am of the opinion that publication there means publication in the Gazette of the actual legislation, such that all persons in the community may see the matters which they are called upon to obey."

1. Whilst that decision has been criticised (see Wright v TIL Services Pty Ltd [1956] SR(NSW) 413 at p422 and distinguished (see Sobania v Nitsche (1969) 16 FLR 329 at p341) it is binding upon me. I have some difficulty in distinguishing the present case. It might be said that the provisions of s727(3) would make readily available to an enquirer a copy of "the Scheme" as defined in the interim order. Nevertheless, that would not satisfy the requirement for publication. It is more difficult to say the same thing about the "elaborations or enlargements" referred to in the interim order. One might only guess at what the Corporation had in mind when it referred to the same. It is uncertain as to whether or not it had in mind documents which might answer to the description of being elaborations or enlargements already in existence when the interim order was made, or to those which might thereafter come into existence, or both. Whichever view one takes, it is an impossibility for the reader of the interim order to determine where he ought to look or what he ought to look for in ascertaining whether any elaborations or enlargements exist and if so, what their terms might be. It was submitted that the references to elaborations or enlargements were capable of severance. I doubt whether, in the context, that is permissible.

1. It is unnecessary, and indeed undesirable, that I come to any final conclusion by way of holding that the interim order has or has not been published as required by s734(2A) of the Act upon an application of this nature. Suffice it to say that if McDevitt v McArthur (supra) is ultimately followed, I consider it likely that the court will not be satisfied that there has been publication as required by s734(2A)(b) of the Act. If the court so concluded, then the applicant's action would fail as the interim order would then not be effective resulting in the respondents being in the position of not requiring any form of planning approval.

1. Counsel for the applicant argued that in the event that the court were to hold that there is in existence a valid interim order in the terms of that notified in the Government Gazette on 25 October 1989 incorporating the Scheme therein referred to, a copy of which is in evidence, then the applicant would be likely to succeed in the action. It is unnecessary for me to say little beyond expressing the view that the argument put to me suggests that in those circumstances, the applicant would have a significant chance of success, notwithstanding some of the difficulties which arise in attempting to construe some of the provisions of the Act, in particular s733B(1)(b) and s734. Some of those difficulties arise out of the definition of "planning approval" appearing in s733A as applying for the purposes of a number of sections only, which sections do not include s734. One might suspect that that is as the result of a legislative oversight. Similar problems may arise out of the definition of the word "development" only applying to certain sections. The result may be that each of those expressions have different meanings in s734 than those meanings ascribed to them by s733A.

1. The determination of the Corporation in the present case was in the following terms:

"That pursuant to Section 734 of the Local Government Act 1962, all that land situate at and known as 13 and 15 Gregory Street, Sandy Bay, be granted a conditional dispensation from the Corporation's interim order of 1st November, 1989 and the application for a change of use to shops therein be approved subject to such conditions as the Director of Planning and Development considers appropriate."

1. If it is open to the Corporation to dispense from the requirements of an interim order in this way, it would have surprising results to say the least. It would enable the Corporation to completely circumvent the provisions of an interim order and negate the rights of persons to make representations in respect of applications for planning approval which may be granted only in the discretion of the Corporation and the right of appeal on the part of such persons who have made representations.

1. The particular determination may be open to challenge on a number of bases:

(a)That whilst it purported to be a conditional dispensation, it left the conditions to be determined by an officer of the Corporation and was, therefore, not truly a conditional dispensation.

(b)That s734(4) of the Act absolutely prohibited the Corporation from granting such an approval by way of dispensation.

(c)That the Corporation's determination was a planning approval of the kind referred to in s733B(1)(b) and therefore was subject to the provisions of s733B(3), none of which were complied with in this case.

1. No particular prejudice was alleged on the part of the respondents, other than such prejudice as might naturally be expected to flow from an inability on the part of the respondents to use their property for the purposes to which they intend putting it.

1. No other matters were put to me by either party as being relevant to the exercise of my discretion. The nature of the work proposed to be done is essentially internal remodelling. The nature of the use to which the property is proposed to be put is that of retail shops. The properties have previously been used for residential purposes. Whilst it might be said that a refusal to grant the injunctions sought would create the potential for an immediate adverse effect on the amenity of the neighbourhood, that effect is not one which can be said to cause more than inconvenience to the applicant. Certainly it is unlikely to cause irretrievable harm.

1. I need to balance these matters in accordance with the principles to which I have previously referred. Upon balance, I do not consider it appropriate to grant to the plaintiff the relief which she seeks. The application is dismissed.