The Crown v Murphy

[1990] HCATrans 139

.~~.

~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B54 of 1989

B e t w e e n -

THE CROWN

Appellant

and

D.R. MURPHY and COVE HOUSE

AUSTRALIA PTY LTD

Respondents

MASON CJ
BRENNAN J
DEANE J
GAUDRON J

McHUGH J

Murphy(2)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 25 JUNE 1990, AT 2.17 PM

Copyright in the High Court of Australia

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MR G.L. DAVIES, QC, Solicitor-General for the State of

Queensland:  May it please the Court, I appear with

my learned friend, MR G.J. GIBSON, QC, and with us MR B.J. CLARKE for the appellant. (instructed by

the Crown Solicitor for the State of Queensland)

MR I.D.F. CALLINAN, ~C:  May it please the Court, I appear with

my learne friend, MR P. FAVELL, for the respondent.

(instructed by Flower & Hart)

MASON CJ:	Yes, Mr Solicitor.
MR DAVIES:	May it please the Court. May I hand up some copies

of our outline.

MASON CJ:	Thank you.
MR DAVIES:	As Your Honours would be aware, the appeal arises

out of a decision of the Full Court with respect to the

amount of compensation payable by the appellant to the

respondents upon resumption from 27 August 1983 of

the respondents' land at Mon Repos Beach near

Bundaberg.

At the relevant time, Your Honours, the land was

zoned rural and it was, as the Land Appeal Court found,

a world renowned turtle rookery, supporting the

largest aggregation of nesting turtles on the eastern

Australian mainland. On 3 December 1980, the

respondent Murphy and another had applied to the

Woongarra Shire Council to rezone the land from rural

to residential A - that is exhibit 4. The rezoning,

if it had been approved, would have entitled the

applicants to subdivide the land into 40 residential allotments in lieu of an 8 hectare minimum which was
applicable under the rural zoning.

On 27 February 1981 the local authority notified

the applicants of the refusal of that application and

as appears from the letter of refusal to which I will

take Your Honours a little later, the application was

rejected,amongst other reasons,because of the

detrimental effect upon the rookery and the other

reason, unrelated to the rookery, was the council's

inability to provide sewerage.

Your Honours, can I take Your Honours at once

then to section 32A because the first question which
we have outlined in our outline of submissions is

the application of that section to the valuation of

the land - the true value of the land. Your Honours

should have, in the copy of documents which we handed

up to Your Honours - that is legislation and cases -

a copy of section 32A, subsection (1) of which

provides:

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Murphy(2)

Without derogating from any of its powers

under this Act or any other Act. a Local

Authority, when considering an application for its approval, consent ..... for the implementation of a proposal ..... shall take

into consideration whether any deleterious

effect on the environment would be occasioned

by the implementation of the proposal -

and the other provision to which I should refer is

section 33(6A)(e)(v)(B) and that provisions says- - -

MASON CJ: Is this on page 182 of this print of the statute we

have?

MR DAVIES: Yes. Your Honour. it is. That provisions says that:

In respect of an application made pursuant

to this section, the Local Authority shall,

amongst other things, take into consideration -

(v) whether, having regard to .the permitted

uses with or without the consent of the Local

Authority of land in the zone .....

and then at the bottom:

(B) the provisions of section 32A -

whether those provisions should be applied. So, in

our respectful submission. those provisions make good

the submission which is contained in paragraph 1 of

our outline.

BRENNAN J: Does that do any more than make mandatory what was

otherwise within the power of the local authority?

MR DAVIES: No, probably not, Your Honour. In fact it may be. if

one looked at the other provisions of the LOCAL

GOVERNMENT ACT, that they would have been matters

relevant for consideration in any event.

Mr Justice Connolly who with Mr Justice McPherson

constituted the majority of the Full Court,

Mr Justice McPherson agreeing with Mr Justice Connelly's

judgment, adopted as the definition of "environment"

for the purpose of considering the application of
section 32A the definition which appears in the Oxford

English Dictionary and he does that at page 822 in

volume 4 of the appeal book. If Your Honours go to

that page Your Honours will see about the middle of

that page His Honour said:

The meanings of "environment" given by the

Oxford English Dictionary vary from the region

surrounding anything to -

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Murphy(2)

and this is the important part -

the conditions under which any person or

thing lives or is developed; the sum total
of the influences which modify and determine

the development of life and character.

Your Honours, we submit with respect that that is an

appropriate definition but, with respect, His Honour

then did not seem to apply it, in our respectful

submission, to this situation here. We have in

addition to that prepared a book of definitions of

"environment" which we have also handed up to the

Court. The point we really make about the Oxford

English Dictionary definition and, indeed, all the others in the book is that they define "environment"

as conditions or influences upon life, whether that

life is human, animal or plant life or, indeed, as

affecting an organism and our point really is that

without the addition of some adjective such as human

or mans or something of that kind, it is not limited to human environment but includes the environment of
animals and plants. That might appear self-evident,

but one of the bases upon which His Honour

Mr Justice Connolly decided appears to have been - or

perhaps the basis - appears to have been that

environment meant human environment.

Can I take Your Honours very briefly to one or

two of the other definitions. The first of them,

Your Honours, is the first in that folder, the

Encyclopedia of Word and Phrase Origins, it is at

page 2, where one sees that:

Thomas Carlyle invented the word environment

..... in its modern meaning -

and this is the relevant meaning -

of "the aggregate of external circumstances,

conditions, and things that affect the

organism, or group."

existence and development of an individual,

And then it goes on to say how it comes from Goethe

in the German. That also appear from the Oxford

English Dictionary definition which appears on

page 5, the one which His Honour Mr Justice Connolly

adopted, that is that its origin, which is the

definition b under No 2 of environment is attributed

to Thomas Carlyle. Your Honours, that is at page 5.

The following more up to date Oxford English

Dictionary is in the same terms and I will not take

Your Honours to that. Page 8 contains the definition

contained in the Oxford Dictionary of Natural History,

actually it is on page 9:

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Murphy(2)

The complete range of external conditions,

physical and biological, in which an

organism lives.

And so on. Similarly with respect to Webster's

New Twentieth Century Dictionary, the relevant

definition is on page 10:

surrounding, and affecting the development

of an organism or group of organisms.

The more up to date Webster's is the same.	I will
not take Your Honours to that.	The Macquarie,

Your Honours, on page 13, in similar terms again: the biological conditions in which an

organism lives -

and the more up to date Macquarie is in the same terms.

Finally, can I just take Your Honours to the
McGraw-Hill Dictionary of Scientific and Technical
Terms on page 16, in the second column:

The sum of all external conditions and influences affecting the development and life of organisms.

Those dictionaries numbered 10 and 11 are really in

the same terms. I will not take Your Honours to the

other definitions therein but they are really in
similar terms to those which I have already taken you.

So, in our respectful submission, on that definition the environment must include the conditions

of light and it must include the effect which

introduced predators would have.	Your Honours, the
Land Appeal Court - - -

BRENNAN J:  But is not environment in 32A the environment of

land?

MR DAVIES: Well, it is not limited, in our respectful submission,

but even if the answer to that was yes, Your Honour,
it would be the environment of those things which

are naturally occurring on that land.

BRENNAN J: Of course. It just seems to me that to be speaking

about human environment or animal environment makes

it very awkward to put any of those meanings to 32A.

MR DAVIES:  Yes. We submit that is so. Your Honours, the Land

Appeal Court found that the local authority was

reasonable in acceding to the objections on the grounds

of influence of light and artificial other than

natural predators. Can I take Your Honours to the

judgment of the Land Appeal Court first of all at

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page 788 where the fact of the objections to the

application for rezoning are set out, commencing

about the middle of that page:

Several hundred objections representing a

diversity of organisations and individuals

covering 1,940 signatories were received.

..... considerable publicity -

and then they are set out more specifically.

Mr Henry talking about the "formidable group of

objectors".

The basis for the objections was concern

for the well-being and preservation of the

turtle rookery on Mon Repos Beach. Prominent

among the objectors was the National Parks

and Wildlife Service. Objectors felt that
any residential subdivision of the land could

have had a deleterious effect on the rookery,

mostly on the grounds of the predatory acts

of pets and the harmful effects of a diffuse

glow from artificial lighting which it is claimed

would penetrate towards the beach, confusing the

hatchlings who enter the sea, in the normal

course of events, attracted by the natural

light penetration of the water at the beach edge.

On the following page Your Honours will see that

that was one of the grounds of refusal, ground (2),

at about point 2. Then if I can take Your Honours to

page 792 at about point 7, the paragraph commencing

there, the Land Appeal Court said:

We cannot fail to look at the position that,

had there never been a scheme of positive action
of which the resumption was an integral part,

the position would have been that the land

would have already had a Rural zoning and any

proposed developer would have been faced with

a Council which would have been strongly and	reasonably opposed to any rezoning which may	that in addition to that basic situation the
Council's refusal to rezone the land was accompanied by the intention or hope that the
Crown would resume it. This merely demonstrates
the strength of the Council's opposition to the
development.

have affected the rookery. It is immaterial

The reference to the intention or hope was the fact that the council had expressed the hope to the

department that the land would be resumed. Now, in

our respectful submission, that is a finding of fact

and the Full Court really could not interfere with

that finding.

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In any event, in our respectful submission,

there was expert evidence to support that finding. I do not want to take Your Honours to it in detail

but can I just take Your Honours to Mr Limpus who

was perhaps the leading expert so far as turtles

were concerned, volume 3 of the appeal books,

Your Honours, at page 474. Your Honours will see on

page 474 who he is andif Your Honours go from there to
page 486 Your Honours can see his curriculum vitae.

The body of his evidence which is really relevant to

this issue, specifically relevant to this issue,

commences at about page 480 where he deals with the

issue of lighting and going through to 482 where he

speaks about the influences of pets and other animals

to the top of page 483.

Your Honours, in addition to Mr Limpus' evidence

there had been an application for rezoning in respect

of a parcel of land called the Keys land which was

more remote from the Mon Repos Beach site than the

subject land. It had been refused by the council.

An appeal had been instituted to the local government

court and the local government court had refused the

appeal and one of the grounds of the·refusal was
those very factors: light and the introduction of

domestic animals into the vicinity.

The judgment of the local government court is in

the record commencing at page 293, that is in

volume 2, and Your Honours will see on the first

page that:

The subject land lies immediately

behind a caravan park which -

like the subject land was located, apart from a

narrow strip, on the beach front. If I can ask

Your Honours, whilst looking at that judgment, to

also glance at page 447 in the same volume, because

there Your Honours will see, in a map described as

appendix C, the Keys land identified. Between it

and the beach is the caravan site and that long thin

strip to the north of that, but on the beach side of

the Keys land, is the subject land. If I could ask Your Honours then to go back to the judgment of the

local government court, Your Honours will see that

His Honour the local government court judge commenced

a consideration of the turtle rookery considerations

about two-thirds of the way down page 303. He dealt

with the questions of light, pollution and predators

in the form of cats and dogs in the first third of

page 304. He referred to the evidence of Mr Limpus,

which was given in that case also, in the paragraph

commencing about a third of the way down page 304

and about two-thirds of the way down His Honour said:

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Murphy(2)

In his view the long term survival of the Mon

Repos rookery requires very strict control of

what happens on and near the nesting beach.

Then there are a number of recommendations which

Mr Limpus made, the most important of which appears

in the first paragraph at the bottom of the page:

"No real estate development should be

permitted on the seaward side of the creek -

that is a creek that ran through the Keys land

that is on the foredune complex if we are to

have any hope of conserving the Mon Repos

turtles.

That obviously applies a fortiori to any part of the subject land which was both closer to the beach and

closer to the main turtle rookery in terms of

north/south orientation. His Honour the local

government court judge said, on page 306, in the

first full paragraph there:

Without the imposition of conditions

such as was suggested by Mr Limpus I am not

satisfied that the proposed re-zoning would

not have a significant prejudicial affect

on the turtle rookery at Mon Repos beach.

So the Land Appeal Court had before it the evidence of Mr Limpus similar to the evidence which he had

given to the local government court and the vie,,.,, o E

the local government court that such development

should not be permitted in that proximity to the beach.

Now, Your Honours, despite that the majority of the Full Court held that this was not a deleterious

effect on the environment and if I can take up tte

judgment of the Full Court at page 821. At the top

of that page His Honour Mr Justice Connolly said:

A more serious objection, as it seems to

me, is the question whether deleterious effect

on the environment is involved at all.

Then his conclusion on that appears on page 824 in

the first full paragraph. His Honour said:

The conclusion to which all this brings

me is that, as a matter of law, the appellants

were entitled to have their application for

rezoning considered free, not only of the

pressures of the National Parks and Wildlife regard for the possible impact of a subdivision

which might follow upon the rezoning upon the

turtle population.

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Now, Your Honours, to understand His Honour's reasoning to this conclusion - and we submit, with

respect, it is not entirely clear - can I take

Your Honours to some passages between those two which

I have just read. If I can take Your Honours first

of all back to page 821, at the commencement of the

last paragraph on that page His Honour said:

What is perhaps meant

that is by the Land Appeal Court -

is that at the date of resumption there existed

the likelihood that turtles would resort to

the beach at the appropriate season of the year

and that residential subdivision, which might be

expected to follow upon a rezoning of the land,

might arguably be deleterious to them.

Then, on the following page, 822, the last sentence

in the first paragraph, His Honour said, after

relating what would happen to the turtles he said: All of this relates to the maintenance of the population of the turtle species. It cannot, in my judgment, properly be regarded as being deleterious to the environment.

Then he goes on to the definition of "environment"

there. Then, on the following page at the top, he

said:

It is not, however, in my opinion, correct

to identify the living organism with its

environment and I see no warrant for thinking

that this was the intention of s 32A -

Then, finally, about the middle of that page,

His Honour said:

What has been seen as critical in this case,

however, is not the environment, as I

understand that expression, but rather the

well-being of a particular species.

Now, as we understand His Honour's reasoning, it is

really one of two things: it is either that

environment means human environment and turtles are

not part of it, or it means that because the

introduction of artificial light and predators will

directly affect turtles, it cannot affect their
environment, and in our respectful submission, one
only has to state either of those propositions to

see that they are fallacious.

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Your Honours, Mr Justice Williams was the

dissenting judge in the Full Court and his reasoning,
in our respectful submission, in this respect was

correct. His reasoning appears on page 833,

commencing at the bottom of the page he refers to a

Shorter Oxford English Dictionary definition of

"environment" which is similar and then goes on to

say:

I can see no justification for excluding flora

and fauna from that concept; the conditions or

influences under which flors or fauna

(including turtles) live must be, in my

respectful view, part of the environment.	The
relations of living organisms to their

surroundings and their modes of life - that is the science of ecology - is very much bound up

with that which the legislature obviously

intended by enacting s. 32A. It follows in my

view that the Environmental Impact Policy

Statement adopted by the Woongarra Shire

Council was within power, and that any

application for rezoning of the subject land after

July 1982 would have had to be accompanied by

an Environmental Impact Statement dealing with

the effect of the proposal on existing flora

and fauna (including marine life) and that would

necessarily have involved a detailed consideration

of the effect of the proposed subdivision on the

turtle rookery.

So, in our respectful submission, for those reasons

the Full Court was in error in saying that the
questions of artificial light and predators upon
turtles were not environmental matters which reauired

consideration by the local government court und~r

Tl	section 32A on an application for rezoning. In our
respectful submission, the Land Appeal Court, as a
matter of fact, reached the correct conclusion, the
appeal of course being limited to error of law, that that
council and, to put the proposition more correctly,
a council acting reasonably or, on appeal from it, a
local government court, would have felt obliged,
because of those considerations based on the evidence
of Mr Limpus and the previous decision of the local
government court, to refuse an application for rezoning.

Your Honours, can I pass then to the POINT GOURDE

principle because it is not completely clear, as we

will endeavour to show when I take Your Honours back

to the judgment of the majority of the Full Court,

whether what, in any event, the court would have done

had it directed itself correctly on the law with

respect to environment. In the end our submission will

be that they would have decided the question on the

application of this principle in our favour, but

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because it is not abundantly clear we should really

address that point. Your Honours, in paragraph 6

of our outline we say what we understand the

rationale of that principle to be, that is that

in determining compensation for resumption, the

fact of the resumption or even the possibility of

it occurring should be ignored and that the land
should be resumed as if the resumption had not

occurred and would not occurred, and also as if

facts which were dependent upon the resumption had

not occurred.

We really adopt what the Privy Council said

in that case in their adoption of a statement by

Mr Justice Eve in an earlier case. Can I take

Your Honours to that case just for that statement of principle. The reference is (1947) AC 565. It

is in the book which we handed up to Your Honours.

The relevant passage appears on page 572. Just

above the middle of the last paragraph on that page

the Privy Council said:

As it was put by Eve J. in SOUTH EASTERN RY. CO.

V LONDON COUNTY COUNCIL:  "Increase in value

consequent on the execution of the undertaking

for or in connextion with which the purchase is

made must be disregarded."

Now, in our respectful submission, the purpose of

that principle is simply to ensure that the price paid

is not either inflated or diminished by reason of

resumption or possible resumption. That was stated

to be so by Lord Simon in RUGBY WATER BOARD V SHAW-FOX.

It is a case which we have not given Your Honours

copies of but could I hand up some copies just of

that relevant part. It is, I suppose, a self-evident

proposition but can I simply direct Your Honours'

attention to what His Lordship said at page 241,

letter E. He said:

The purpose of the POINTE GOURDE rule

is thus clear. You must not allow the price

to be paid for property compulsorily

acquired to be inflated -

or diminished, of course, we would add -

by reason of the fact that it is acquired

compulsorily under parliamentary powers;
because you would then be making the

acquiring authority pay, not for the value of the property to the vendor, but for its value to themselves, including the value

engendered by the very powers by which they

acquired the property.

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Your Honours, the existence of the turtle rookery

is in really a quite different category here. It

is not a factor which its existence depends in any

way on the resumption; it is a matter which

depends upon the turtles coming back there. It

was there irrespective of the undertaking or I

should say the execution of the undertaking for or

in connection with which the resumption was made.

BRENNAN J:  Mr Davies, can I just interrupt you to take you

back to RUGBY WATER BOARD. Is either of those tests

the appropriate one? Is it not the notion of a

ready but not over anxious purchaser?

MR DAVIES: That is the general test, Your Honour, yes,

vis-a-vis a ready but not over anxious vendor.

BRENNAN J: Yes. Well, is it a question of looking at the

value of the property to the vendor or the value to

the purchaser or the value to the acquiring authority?

MR DAVIES:  No, I did not mean, I suppose, to look at that last

part of what was said there, Your Honour. The point

I was really making was perhaps not that so much but

that the purpose is to ensure that all aspects of

the resumption be put on one side and the property

be looked at as its value would be to the vendor or

to a willing but not anxious purchaser if there was

no resumption in sight.

BRENNAN J:  But with the capacity to be used for the purposes

which the resuming authority may have in mind.

MR DAVIES:  Yes. It is capacity for use for any purpose but

without, in fact, the scheme being in mind. Th2

scheme for resumption in this case is a scheme which

involved an environmental park, when the scheme

involved no doubt putting in pathways and viewing

areas and public toilets and things of that kind

and revegetation. But put all that on one side, put

the scheme on one side, what we say is that the

purpose of the principle is to just simply put that

on one side but to look at the land with its advantages

and disadvantages, which it has, though there be no

resumption in prospect. And of course this land had

both the advantage and disadvantage, depending on

your point of view, of proximity to a turtle rookery.

What one really has to do, in our respectful submission,

is say: what would the vendor get if he had sold his

land on the date of resumption but assume that there

was no resumption there. Given that there is a turtle

rookery there, what would he get for his land? And

the answer really is: he would get for his land what

he could get for land which is incapable of

subdivision below eight hectares. Because resumption

or no, a local authority acting reasonably or, on

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appeal, a local government court, would not have

allowed subdivision into smaller allotments.

Your Honours, what the Full Court in this

case - or perhaps I should say more correctly our

learned friend's argument below really ignores is

that last aspect, that what must be shown by them -

what had to be shown by them to the Land Appeal

Court was absent the possibility of resumption, this
land would probably have been rezoned to residential A.

Now, that again is perhaps self-evident as following

from the propositions I have submitted are correct so

far, but can I take Your Honours to two other cases

which are leading cases on this principle. The first

of them is MELWOOD UNITS V COMMISSIONER OF MAIN ROADS,

(1979) AC 426 and at page 434 the Privy Council said,

if I can commence reading the sentence which commences

at about letter D:

Moreover, in their Lordships' opinion the

principle remains applicable to a case such
as the present, notwithstanding that planning

permission had not been given for the whole

37 acres and would not have been given, when

the lack of such permission was manifestly

due to the expressway project, and it is

established that, without the expressway project,

such planning permission would have been given

for the whole 37 acres.

It is really that part that, in our respectful

submission, is of great significance here; that what

the respondent to this appeal had to establish to

the satisfaction of the Land Appeal Court was that

without the project of resuming this land for

an environmental park with pathways and whatever else

might have been involved, that planning permission

would have been given to subdivide this land into

40 allotments.

The same point was made, though in not quite the

same terms, by His Honour Mr Justice Jacobs in

HOUSING COMMISSION OF NEW SOUTH WALES V SAN SEBASTIAN

PTY LTD, (1978) 140 CLR 196. He made this point at -

His Honour was in effect delivering the judgment of

the Court. He made this point at about the middle

of page 211 where he said:

If independently of the proposed resumption

for the purpose of public housing the land

was found likely in the varied scheme to have

been zoned residential in terms of the interim

development order, that would have been a most

important finding affecting the value of the

land for purposes of a private hospital.	But
that was not the finding.

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Your Honours, much was made below and, indeed,

by the judgment of the Full Court about a finding

of the Land Appeal Court which appears in a

sentence at the bottom of page 790 and

goes on to page 791.	Could I take Your Honours to
that.	What the court said was that:

Correspondence tendered in evidence

illustrates that the Woongarra Shire Council

and the National Parks and Wildlife Service

prior to resumption were mutually concerned

for the protection of the turtles -

and this is the important part -

and that the Council was prepared to refuse

to rezone the subject land with the intention

or the hope that the Crown would resume. But that must be read not only with the earlier

statement about mutual concern for the protection of

the turtles, and one would have thought that it

follow that short of resumption mutual concern

for the preservation of the turtles on the side of
the council would be evidenced by a refusal of

rezoning. That must be read also together with the

passage on page 792, in the last paragraph on that

page, which is really the important finding of fact

which I read to Your Honours a little earlier, and

in particular the second sentence there, that is:

It is immaterial that in addition to that

basic situation -

that is the situation where the council acting

reasonably would have refused rezoning because of

the rookery -

in addition to that basic situation the Council's

refusal to rezone the land was accompanied

by the intention or hope that the Crown would

strength of the Council's opposition to the

development.

resume it. This merely demonstrates the

That is really the point that I am making, that the

council really hoped, no doubt, that the government

would resume but in any event they were committed

to oppose the development by refusing the rezone in

such a way that it would harm the turtle rookery on

the expert evidence which they had heard.

Your Honours, I perhaps should also, whilst

mentioning that finding of fact, take Your Honours

to the finding of fact that appears on the top of the

following page, where the Land Appeal Court said:

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This is the point where, unfortunately, confusion occurs in the approach adopted

by the dispossessed owners; for it is not
correct to speak of the scheme for the protection
of the turtles, which involves resumption of

the subject land, as subsuming the pre-existing

facts and circumstances. Those circumstances

themselves, independently as a natural

phenomenon, i.e. an existing part of the

environment, include a factor which affected

the value of the land by preventing its

rezoning, irrespectively of any resumption.

Of course, in any event, we would add, the real question was not so much what motivated this council

but what a council acting reasonably would have done

or, on appeal, a local government court would have

done, because when one is looking at probabilities

here, one could say that there is a probability,almost

a certainty, that if the council in this case had

granted rezoning, that one of the many hundred of

objectors, including the government department, would

have appealed to the local government court against

that decision. In our respectful submission, the

Full Court was bound to accept that finding of fact,

appeal being relevantly limited to errors of law.

Your Honours, in any event, in our respectful

submission, that finding of fact was correct, based

as it was, I think we have already said, on the

evidence of Mr Limpus, on the earlier decision of

the local government court and, perhaps, can we also

refer to some evidence to which Mr Justice Williams
referred, the evidence of a Mr Ballard, and it is
convenient, perhaps, to refer to that by reference

to the passage referred to in Mr Justice Williams'

judgment on page 830, the last question really on

that page. Mr Ballard, I should say, Your Honours -

perhaps I should take Your Honours further up the

page - was, at the time he gave evidence the town

planner of the Woongarra Shire Council. He was not

the town planner at the time the application for

rezoning had occurred, but he was at the time of this
appeal and he was asked:

Q. Well now you take the view, do you not, that as a town planner any deleterious impact

on the rookery would be of sufficient

importance to overshadow all other town

planning considerations? - A. Yes, I believe

in the circumstances that is correct.

I probably have taken Your Honours sufficiently, I

think, to the local government court decision which

Your Honours will recall was from pages 303 to 306.

I will not return to that.

BlT2/6/RB	15	25/6/90
Murphy(2)

Your Honours, the Land Appeal Court at

page 789 referred to that decision of the local

government court in the last paragraph on that page

and they refer there to the decision:

indicating that matters concerning the

environment and quality of the relevant

area were proper matters for consideration

in respect of the Keys rezoning proposal.

They then applied what, in our respectful submission,

is the correct test in this respect, which they

stated on page 794 at the bottom of that page.	They
said:

As we see our task we have to approach

the assessment of compensation of the subject

land on the basis that it was already zoned

Rural and is situated adjacent to an

environmental park fronting Mon Repos Beach,

a renowned turtle rookery to protect and

maintain which there is a great deal of

official, scientific and public concern.

That is the environment in which the subject land was situated at the date of resumption.

The question may be fairly put - what would

the hypothetical prudent purchaser of the

SPENCER Case be prepared to pay for the

resumed land at date of resumption in the
market place given its resumption date

zoning and the natural environment in which

it was situated? No factor affecting value

emanating from the act of resumption should

be taken into consideration nor any factor

emanating from the scheme for the

protection of turtles which the resumption

superimposes, as it were, on the circumstantial

environment in which the land was situated at

date of resumption.

Then in the following paragraph they reach their

conclusion on the basis of the application of that

test.

On the totality of the evidence before us,

we do not believe that the hypothetical
prudent purchaser of the resumed land at date
of resumption, disregarding the resumption and any
associated scheme but being fully conversant

with the Council's attitude against rezoning

the subject land and other land in the locality

to Residential zoning and with the public/

scientific interest in protecting the rookery,

would have realistically or reasonably been

optimistic of the successful outcome of an

application to rezone to Residential zoning.

B1T2/7/RB	16	25/6/90
Murphy(2)

Likewise, given that environmental matters

have been held by the Local Government Court

to be a proper consideration to be weighed,

and given that he, the purchaser, would have

had to show that the existing zoning should

be changed, the purchaser would not have

entertained reasonable expectations of

pursuing a successful appeal against the

Council's refusal to rezone.

And Your Honours will see that the Land Appeal Court

then dealt with Mr Feros, who was a town planner

called by the applicant and Mr Feros was inclined to

say, not surprisingly, that the application should
have been - that the rezoning should have been allowed

but with some conditions. The Land Appeal Court point

to the difficulties of ever enforcing those conditions

on page 796:

The means of practical and legal

imposition and enforcement of these conditions

raises some nice questions to which he could

not provide considered answers.

Then they go on to say on the following paragraph:

The nature of the conditions suggested by

Mr Feros emphasizes the paramount importance

of the subject environment. It reinforces our

conclusion that the most prudent action would

be to limit human habitation on the resumed

land to the minimum and that this would best

be achieved by retaining the present Rural

zoning. The probabilities against rezoning

approval are of such order that -

and he goes on to refer to the principles.

Your Honours, as we understand what the

respondents' submission really had to be in this

respect - and we should not anticipate what our

must be this, that where there is a fact or learned friend is going to say here - but it really	circumstance, here the existence of the rookery and
the desirability of protecting it, where there is a
fact or circumstance such as that which motivates
resumption, and that same fact or circumstance would
result in refusal of rezoning, then that fact or circumstance and the consequential refusal of
rezoning must be ignored in assessing compensation. In our respectful submission, as indeed the Land
Appeal Court said, that would place the dispossessed
owner in a better position than if, without the
possibility of resumption, he had sold the land, because
if he had sold it he would have been stuck with the position as it was, including the rookery, and the

BlT2/8/RB	17	25/6/90
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probability, if not impossibility, of ever securing

a rezoning.

Your Honours, the final conclusion of the majority of the Full Court on this question was that

it was, as they said, an open question whether the

local authority, unaided by suggestions from the

relevant department, would have refused rezoning out

of regard for the well being of the turtles, and they

said that at page 819 at the bottom of the page, that

sentence cormnencing, "If that need be assumed".

But in stating the question and answering it

in that way, by saying it is still an open question,

we submit that there are at least three errors. The

first is it really misstates the correct question.

The correct question, as we have said, I think, more

than once, is whether a local authority acting

reasonably or, on appeal from it, the local government

court, would have so refused.

The second error is that, in our respectful

submission, he was bound to accept the Land Appeal

Court's finding on this question, which was a finding

of fact based on evidence before it and based on the

earlier decision of the local government court.

The third error is that he assumed, contrary

really to the facts which he had stated earlier,

that the only basis of objection by the department

was to control the price for the purpose of

resumption, and as appears from his earlier judgr::ent

when he is reciting the facts, there are really t'.vo

bases of the National Parks and Wildlife objection:

the first was a town planning objection and the

second was, as His Honour really implied, that it

would increase the value of the land. I just

mention that, and the passage in which he recites

that objection is at the bottom of page 811 and the
top of page 812.

McHUGH J:	I am sorry, how does the statement at 819 stand with
the passage at 792 to which you referred us, where they say:

would have been faced with a Council which
would have been strongly and reasonably

opposed to any rezoning.

MR DAVIES:	It does not seem to, Your Honour, although there is
a difference, as I endeavoured to point out then,
between that statement and what the Land Appeal Court were thinking of. They were thinking of something a
little wider than this council making this decision.
They were thinking of a council acting reasonably in

BlT2/9/RB	18	25/6/90
Murphy(2)

the circumstances, but it does not really, apart

from that, in that limited area, it is

inconsistent. In our respectful submission, what

I was really saying is that that is really a finding

of fact by the Land Appeal Court by which the

Full Court was bound. It was a finding of fact

based on evidence. So in that limited sense it does

not stand but His Honour in any event was really

stating it too narrowly, in our respectful submission,

because ther~ was really a wider test of whether a

reasonable l&cal authority or -the local govenment court,

if an appeal was instituted from one which did not

act reasonably, would have determined the matter.

But of course, finally, I should say in that respect

that;if it was an open question, as His· Honour seemed

to think, then the resumed owner, the dispossessed

owner, had failed to discharge the onus of establishing

that absent resumption or the possibility of

T2 resumption, that rezoning would have occurred.

Your Honours, in our respectful submission,

His Honour Mr Justice Williams' reasoning in this

respect was correct.	He, at page 833, six lines
from the top, said:

The Land Appeal Court correctly observed that

the rookery "was a natural phenomenon that

always constituted an impediment to rezoning,
even if all schemes were disregarded." Such

facts distinguished this case from the factual situations to which the POINT GOURDE principle

relates. That Court was therefore entitled to

conclude, as it did, that leaving aside the

attitude of the Wildlife Service, the Council

would have strongly and reasonably opposed the

rezoning.

So His Honour understood what the Land Appeal Court had decided and felt himself bound, and indeed as

that passage indicates, thought that the Land Appeal

Court was correct or at least entitled to so conclude.

They are our submissions, may it please the

Court.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Callinan.

MR CALLINAN:  Your Honours, I hand up a synopsis. Your Honours,

we have also prepared a chronology which may, perhaps,

be of some assistance.

MASON CJ: Thank you. Yes, Mr Callinan.

MR CALLINAN:  Your Honours, may I also hand up, because it may

perhaps have a bearing on the argument, a copy of the

LOCAL GOVERNMENT ACTS AMENDMENT BILL which redefines

"environment" and, Your Honours, I cannot inform you

BlT3/l/RB	19	25/6/90
Murphy(2)

precisely at the moment of the date upon which it

was actually passed, but I understand it was passed

last week. I have asked -

MR DAVIES: It was assented to on 13 June.

MR CALLINAN:  Thank you. And could I draw Your Honours'

attention to page 5, the new definition of

"environment", to include, so far as is relevant here,

"fauna".

MASON CJ: Yes.

MR CALLINAN:  Your Honours, our first submission is that the

majority in the Full Court correctly applied the

principles established by the SAN SEBASTIAN case,

the POINTE GOURDE case and MELWOOD UNITS. My

learned friend, in paragraph 6 of his synopsis or

outline really, with great respect, misstates the

principle which is established by those cases. My

learned friend puts the matter this way: the fact
of the resumption, and even the possibility of it
occurring, should not be ignored. In other words,

his submissions focus upon the resumption itself and

not, as it should do, upon the wider consideration of
the scheme and matters connected with or related to

the scheme. That appears - could I take Your Honours

first to POINT GOURDE, and at page 572 Lord MacDermott,

giving the judgment of Their Lordships, in the passage

in which he adopts the statement by Mr Justice Eve,

at about point 5, said:

But it does not follow that this part of the

award can stand. It is well settled that
compensation for the compulsory acquisition

of land cannot include an increase -

and we observe, or reduction -

in value which is entirely due to the scheme

underlying the acquisition.

So the focus is upon the scheme and not the actual
acquisition itself.	Then His Lordship went on to
adopt the passage:

As it was put by Eve J. in SOUTH EASTERN RY. CO consequent on the execution of the undertaking -

and we emphasize the words consequent upon the

undertaking, the reference to undertaking -

the execution of the undertaking for or in

connexion with which the purchase is made

must be disregarded."

B1T3/2/RB	20	25/6/90
Murphy(2)

So a connection is sufficient, and it is a connection

with the scheme and not with the resumption itself.

So with great respect to our learned friends, we

would make the submission that to put the matter as

they do in their outline is to put it not only, with

great respect, not quite accurately but also is to

put it too narrowly.

GAUDRON J: But, Mr Callinan, is that passage not speaking to

the future, particularly what is said by Justice Eve,

future increase, really, rather than the situation

that is not predicated on a future change?

MR CALLINAN:  Could I, with respect, accept what Your Honour is

putting to me for present purposes and respond in

this way, that here, of course, what was contemplated

was the extension of an environmental park, so that

if I adopt, with respect, what Your Honour is putting

to me as correct, this none the less - what happened

here is within the principle as it is stated by

Justice Eve in the sense that one is talking of an

extension of an existing environmental park and not

something that is going to happen entirely in the

future, unless one regards the extension as - - -

GAUDRON J:  I was thinking of future changes in value. Future

increases or decreases.

MR CALLINAN:  No, with respect, Your Honour, because there is

another case that is on our list that I will come to

in due course which is in a slightly different factual

context but it does make the point that one looks to

the past as well as the future. It is the case of

WOOLLAMS - it is on our list and I will take

Your Honours to it shortly - but the facts were there

that well before the resumption was effected it was

common knowledge, and there had been much debate in

the area, about the inevitability or the likelihood of

the resumption and the implementation of the scheme

and the court held, in our submission correctly, that

one had regard to those past events and, in effect,

that the blight that all of those matters had imposed

upon the land in assessing the value as at the date

of resumption. So that in that respect, Your Honour,

we would make the submission therefore that one does

look to the past, particularly if the likelihood or,

indeed, even the possibility of a resumption is

notorious, as is the case here. The evidence will

show that. There are some brief references to the

evidence that I have to make. So that that would be

the response that we would make to Your Honour's

question to me.

But in any event it is right, in our submission,

to say, when one looks at what the Privy Council said

in the POINTE GOURDE case, that the principle is a

wide one and it extends to matters or implications

BlT3/3/RB	21	25/6/90
Murphy(2)

connected with the scheme.	And one does not take anv
narrow view of that.	Your Honours, if one goes on, ;

that that is so appears, we would submit, even more

clearly in the subsequent statements. After the

citation from the SOUTH EASTERN RAILWAY case

His Lordship said:

This rule was recognized by the Full Court and,

indeed, appears to be the basis of its main

conclusion -

and then His Lordship referred to the statement of

Lord Buckmaster:

"In the present case, although a value as a

quarry had admittedly been created prior to

the acquisition, that value was increased by

the fact that a base was being established in

the vicinity for which a large quantity of stone

in a readily accessible situation was required.

In other words, the value was enhanced by the

scheme of the party acquiring the land -

There is, Your Honour will see, some slight factual

similarity here in the sense that there was already

an environmental park. The resumption, in this

case, was for its extension. In that case the land
in the POINTE GOURDE case was, of course, being used
for a quarry before the resumption and, indeed,

there was a base before the resumption, but upon the

resumption, the base was expanded.

But if I go on, on page 573, His Lordship

said, after the citation:

On behalf of the appellants it was said that

the relevant scheme in this matter was the acquisition of the quarry land and not the construction of the naval base in its vicinity.

Their Lordships are unable to accede to this

argument.	The case stated finds that the lands
acquired were "required by the United States
for the establishment of a naval base in Trinidad." That being so, the nature of the scheme of this
acquisition is clear -

and then Their Lordships go on to deal with the

consequences that should follow. But, again, it
can be seen that no narrow view of the scheme or the
resumption is to be taken. That, in our respectful

submission, that approach was also adopted in the

MELWOOD UNITS case. I think my learned friend has

given Your Honours a reference to that and Your Honours

would appreciate that there was a finding of fact in

the MELWOOD UNITS case that a particular planning

application had been refused because the council, in

BlT3/4/RB	22	25/6/90
Murphy(2)

this case it was the Brisbane City Council, had wished to

protect the land to enable- a highway to be

constructed on it, albeit by a different highway

authority from the city council. It was the main

roads authority that constructed it. That appears

from the headnote at page 427 of the report in

paragraph 1:

compensation for resumption was to be

assessed without reference to any diminution

in value of the land caused by the scheme -

not caused by the resumption -

of which the resumption formed an integral

part and that was so notwithstanding a

proprietor's knowledge of the scheme at the

time he acquired the land; that that principle

was part of the common law and that in

Queensland the absence of any expression of

it in section 26A(5) of the MAIN ROADS ACT

1920 to 1952 did not impliedly alter the law;

and that, accordingly (accepting that, but

for the expressway proposal, planning

permission would have been granted to develop

the whole of the 37 acres as a drive-in
shopping centre and that there would have

been a purchaser for it), the Land Appeal Court should have left out of account the diminution in value of the south land due to

severance -

so that again the important thing is the very heavy

influence that the wish of some other authority to
retain the land for a public purpose had upon the

planning authority, the local authority; in fact

very similar to the one here as we will show by

going to the evidence.

Your Honours, could I draw your attention to

page 434 of the report in the MELWOOD UNITS case,

the first complete paragraph that begins on that page,

and then I really wanted to take Your Honours to the

reference to POINT GOURDE:

Under the principle in POINT GOURDE ..... the

landowner cannot claim compensation to the

extent to which the value of his land is enhanced by the very scheme of which the

resumption forms an integral part: that

principle in their Lordships' opinion operates

also in reverse. A resuming authority cannot

by its project of resumption destroy the

potential of the whole 37 acres for development

as a drive-in shopping centre, and then resume

and sever on the basis that that destroyed

potential had never existed. Moreover, in

BlT3/5/RB	23	25/6/90
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their Lordships' opinion the principle

remains applicable in a case such as the

present, notwithstanding that planning
permission had not been given for the whole 37

acres and would not have been given, when the lack of such permission was manifestly due to

the expressway project -

Your Honours appreciating that the Brisbane City

Council was the planning authority and not the

resuming authority. Could I draw Your Honours'

attention to the reference then to WOOLLAMS case

which appears at page 435 of the report in MELWOOD

UNITS. Their Lordships said:

On the other hand, the Land Appeal Court

in discussing WOOLLAMS V THE MINISTER (1957)

2 LGRA 338 pointed out that that decision

was based upon a section of the relevant

New South Wales statute which, so to speak,

embraced both the POINT GOURDE principle

and its reverse operation -

and then perhaps there is no need for me to read

the balance of it, but Their Lordships thought that

that was too narrow a view of WOOLLAMS case and that

it had an application even in Queensland,

notwithstanding the different statutory provisions.

Your Honours, could we go then to SAN SEBASTIAN,

that is HOUSING COMMISSION OF NEW SOUTH WALES V

SAN SEBASTIAN PTY LTD, (1978) 140 CLR 196. Although

Your Honours may be familiar with it, may I just

remind you of some of the facts appearing from the

headnote. About point 7, the sentence beginning

"Because negotiations" - this is on page 196 itself:

Because negotiations between the Commonwealth

and the New South Wales governments were

taking place ..... which led to an agreement in

June 1975 to which a draft interim development

order was annexed limiting the use of the land	to residential development, the council
deferred a decision on the company's application.
The land was resumed in July 1975 -

that is to say after the arrangement had been made, as

Your Honours can see, almost immediately after it.

The interim development order came into force

in the following month. On the company's

application for compensation it was held that the

proposed zoning of the land in the draft interim
development order was a step in the resumption

process and a zoning for the works for which

the land had been resumed.

BlT3/6/RB	24	25/6/90
Murphy(2)

Now, we would submit to Your Honours that on the

evidence in this case the rejection of the

application for planning approval that was made here

was, itself, as in SAN SEBASTIAN, a step in the

resumption process. It depends on the facts of the

case and we will take Your Honours to the facts, I

might say uncontradicted facts, because correspondence

was tendered and the shire clerk was also called who

spoke of the reasons why the planning application was refused. Then the matter is put accurately, we would

submit, in the headnote on page 197, about point 1:

That where there was direct causal connextion

between a restriction on land use imposed by

planning and land use legislation -

and so on, it states the matter correctly, we would

submit. Could I take Your Honours to page 205, in

the reasons for judgment of His Honour Justice Jacobs

atabout point 9. His Honour has just referred to

POINTE GOURDE:

A difficulty which arises in the

application of this principle is that valuation

is in the ordinary case based on market value

and, if the proposed public purpose and the

possibility or likelihood of resumption -

and Your Honour Justice Gaudron, if I could rely

upon that passage in response to the question you

asked me before, in order to point to past events

and of past blighting or circumstances which may

have led to a past blighting, the principle seems

to be recognized there by His Honour Justice Jacobs -

therefore has qecome known prior to the date
of resumption, the market value at the time
of resumption will probably reflect by way of
increase or decrease the possibility or

likelihood of resumption for that public

purpose. Therefore that value cannot be

accepted.

Over the page on page 206. The whole of that first

paragraph is relevant, the incomplete paragraph, and

then at about point 3, the next paragraph:

A greater difficulty in applying the

principle of assessment which is enacted in

s.124 of the PUBLIC WORKS ACT arises as a

result of planning and land use legislation

and the processes whereby statutory restrictions

on land use are imposed. Restrictions on land

use, so that, explicitly or practically, use

is restricted to a use for a public purpose for

'Which the land might be resumed, are commonly

imposed as a result of consultation with or

BlT3/7/RB	25	25/6/90
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direction by the public authority concerned

with the carrying out of the particular

public purpose.

And this is the correct principle, in our statement: In such a case where there is a direct

relationship -

Now, His Honour does not say where it is the only

relationship -

where there is a direct relationship between

the restriction on land use and the proposed establishment of the public works the effect on value of the zoning or restriction ought

to be ignored.

That, we submit, is the correct statement of the

principle.

That was the position in CHAPMAN V THE

MINISTER. Unfortunately in that case the

approach of the Land and Valuation Court and

the form of the questions ..... tended to

concentrate attention upon the provisions

of the LOCAL GOVERNMENT ACT -

and so on.

The result would not have been different by a

direct application of the language of s.124 -

Then His Honour said:

There are, however, many situations where

the relation between the zoning and the proposed

public works is not as clear-cut as it was in

CHAPMAN V THE MINISTER.	One can take an
example away from the present case.	Assume
an area of land on the outskirts of existing
settlement, and assume a planning authority
concerned to designate land uses in a planning
scheme. The land is designated open space.
Thereafter it is resumed for the purpose of a
public reserve. The fact that the land was
zoned as open space may have depreciated its
value. Does the resuming authority pay
compensation at the depreciated value of open space or at some other value?

And so on. Then His Honour refers, on page 207, in

the next paragraph,to the:

added complexity when the planning scheme is

only in course of preparation.-

BlT3/8/RB	26	25/6/90
Murphy(2)

and I do not think I need read the balance of

page 207. We would submit that it is all relevant,

as is the discussion of the STOCKS & PARKES case on

page 208 and I would, with respect, refer Your Honours

generally to those passages also.

For completeness, perhaps if I could just give

Your Honours some page references to WOLLAMS' case

because His Honour Mr Justice Jacobs seems to have accepted it as being correct and as being relevant

in this sort of context. The case is½roll.A"'vfS V THE

MINISTER, (1957) 2 LGRA 338, and could I refer

Your Honours to page 342, the paragraph in the middle

of the page there; page 343, the last paragraph;

the second paragraph on page 344 and the third-last

paragraph on page 345. Your Honours, we would submit

that this case is directly within the principles - - -

BRENNAN J:	We do not seem to have a copy of WOOLLAMS 1 case, is
that right?

MR CALLINAN:  I beg Your Honour's pardon. We have copies

prepared. I thought they had been handed up.

BRENNAN J:  Mr Callinan, what is the proposition for which you

contend, the proposition of law for which you

contend out of these cases?

MR CALLINAN:  Your Honours, we would put it in terms of that

passage from the reasoning of His Honour

Mr Justice Jacobs at page 206, in the middle of the page. His Honour says:

In such a case where there is a direct

relationship between the restriction on land

use and the proposed establishment of the

public works the effect on value of the
zoning or restriction ought to be ignored.

We would translate that in this case, in this way, that as there was a direct relationship here between

the refusal of the council to grant the planning

application and the proposed establishment of the
environmental park, the effect on value of the

rejection of the application ought to be ignored.

BRENNAN J:  But that only takes you part of the way, does it

not, because ignoring that effect, whatever it was,

there remains the question of whether or not there

was any likelihood of rezoning de hors the prospect

of resumption?

T3 MR CALLINAN: Yes, yes, I agree with respect with that.

McHUGH J: But that is you~ problem, is it not? I mean what you

have just put really turns the facts of the case on

BlT4/l/RB	27	25/6/90
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their head. As at 3 December 1980 when the

application was made to rezone, the land was already

rural land.

MR CALLINAN:  Yes; with a potential for rezoning.

McHUGH J: Well, true

MR CALLINAN: And a potential, the Land Court held at first

instance, that was likely to be realized. Now,

the member at first instance did not give us everything
that we had asked for. There was obviously a

contingency component in there, but what, of

course, the Land Appeal Court did was the opposite.

The Land Appeal Court held that it was in a rural

zoning and that it had no potential for rezoning.

McHUGH J: That is the question of fact, and they made that

finding, so where is the error of law?

MR CALLINAN:  Your Honour is asking me here whether there is an

error of law that I can point to here.

McHUGH J: Yes.

MR CALLINAN: Well, could I say this, that the decision of the

council was, when I go to some facts which I have

to go briefly, was a decision which was based, we

would submit, either solely or principally upon the

desire of the council to preserve the land so that it

could be easily or cheaply acquired for an environcental

park. So that, we would submit, if I am correct in

that submission, that gets rid of the council decision.

Now then, the thing that my learned friend points to

is the decision in · KEYS'case, for example, which was

a local government court decision which I will have

to take Your Honours to, which depends, we would

submit, principally upon considerations other than

the appropriateness of the use of the land or the

protection of the turtles, if I can put it that ,vay.

In fact, when Your Honours come to that decision,

Your Honours will see that His Honour Judge Rowe,

who decided the case, took into account a number of

matters, including the particular suitability of the

land for agricultural purposes and the need to

preserve it for agricultural purposes and then ~e said

that would be sufficient to dispose of the matter, and
then he went on to consider, if I can put it shortly,

the matter of the turtles.

McHUGH J:	But does this mean anything more than, at its highest
from your point of view, that the finding of fact at
page 792 is incorrect? That is as high as you can
put it, is it not, which is not sufficient.

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MR CALLINAN:	To which passage is Your Honour referring?
McHUGH J:	The bottom of the page.

MR CALLINAN: That understates it. It is not correct, as a

finding of fact, yes, I agree with that. In fact,

the evidence was one way on this point, that the

council refused the application in order to protect

the land for the turtles.

McHUGH J:	But right or wrong, it is a question of fact, and
even if it is a perverse question of fact, it raises
no error of law, does it?
MR CALLINAN:	The error of law was that the Land Appeal Court

wrongly held that the combined actions, as it were,
of the council and the government department were

not - and it is not spelled out in these terms, this

is the way we put it - vitiated by bad faith which is,

we would submit, at least a mixed question of fact

and law, whether the representation and objection

that were made by the government department and the

way in which the council dealt with it constituted

bad faith, such as to vitiate the decision, Your Honour.

I use "bad faith" as a convenient term.

BRENNAN J: Is it right to say that so long as the finding at

the bottom of page 792 and the top of 793 stands t~ac

you cannot succeed?

MR CALLINAN:  No, I do not want to make that concession, with

respect, because- - -

BRENNAN J:  I can understand that, but if those paragraphs do

stand, what argument do you then have on the

assumption that those paragraphs stand?

MR CALLINAN: That all courts who consider compensation are

obliged to ignore any matter that is directly

connected with the scheme and the resumption. And that involves ignoring the restriction on the land

use directly attributable to the desire to protect the turtle rookery.

McHUGH J:	Yes, but that finding of fact assumes that you are
excluding the scheme and it says, "if there had never
been a scheme". The developer would have been faced
with a rural zoning and a council which was strongly
and reasonably opposed to any rezoning which may have affected the rookery.
MR CALLINAN:	Your Honour, I make the response, of course, that

the finding is perverse for reasons I can demonstrate,

but I know that is not a response to what you are

asking me, but it would be a curious result if, when

the appeal is at large here, I could point to a

BlT4/3/RB	29	25/6/90
Murphy(2)

perverse finding of fact which would entitle us,

if it were anywhere else at all that this matter

was being heard, to judgment in our favour.

McHUGH J:	But you could not rely on a perverse finding of
fact in the Full Court of the Supreme Court of
Queensland, could you? It is not a question of law.
MR CALLINAN:	Yes, well value, the way in which the Privy Council approached it in the MELWOOD UNITS case - and perhaps
I should take Your Honours to some passages in that -
but it was the same situation there and the Privy Council held that there were questions of law involved.
Perhaps I should go to - - -
McHUGH J:	Do not let me put you off your argument. I am just
flagging what I see as your difficulties at the
moment, Mr Callinan.

MR CALLINAN: No, I am indebted to Your Honour. There was

extensive argument in - it is stated in the headnote

at page 427, paragraph (3),of the MELWOOD UNITS case~

That any disregard by a tribunal of a principle

of assessment of compensation or of a transaction

affording evidence of the value of resumed land

was an error of law and that, therefore, the

Full Court of the Supreme Court ought to have

remitted the case to the Land Appeal Court.

Now, we would make the submission that here, principles

of assessment of compensation have either been ignored
or not properly applied and that the way in which the

council dealt with the planning application was

plainly a transaction which afforded some evidence

of value of the land. But it is discussed more

extensively. In short, what the Privy Council held

was that - and I do not think I am putting it too

high, that practically every valuation case will

involve at least some aspects of the law.

DEANE J:  Mr Callinan, is what you are saying that there are

other grounds of appeal which the Full Court did

not deal with?

MR CALLINAN:  Yes, there were.

DEANE J: Because of the way it did deal with them?

MR CALLINAN: Exactly.

DEANE J:  Does that mean more than if you can make that good,

if Mr Davies ultimately succeeds on the grounds on

which the Full Court found, that the matter should

be sent back for them to deal with those other

grounds?

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MR CALLINAN:  Yes, Your Honour, and our written outline

contemplates that possibility expressly. As much as

no one would like to see this case argued, I think,

if one counts the special leave application, for the

sixth time, we recognize that very real possibility.

Let me answer Your Honour directly. There was

evidence, for example, before the - Your Honours

understand the curious procedure by which these

matters are dealt with. There is a hearing de novo

in the land court and then when the matter comes

before the Land Appeal Court, one is allowed to rely

upon the record or recall any witnesses and call fresh

evidence, which happened here. But evidence that was

relied upon, and which was never dealt with really,

apart from the member at first instance, was evidenced

by Mr Weigh, who was a senior officer of the Tourist and Travel Corporation and he said that the land had

great utility as a tourist attraction, exploiting - and

I do not mean in any offensive sense - but exploiting

in a proper and sympathetic way the fact that the

turtles did resort to the land, as is, for example,

the case at Heron Island, and that on that basis the

land had a value of a million dollars.

Now, that evidence was before the Land Appeal

Court. It was relied upon and there was not any

finding at all in relation to it. It was completely

ignored. It really is uncontradicted evidence.

DEANE J:	Was that use consistent with the rural zoning?
MR CALLINAN:	No, I think there would have had to be a rezoning.

But, again, Your Honour, upon the basis that a

potential which involves some discounting, and not

assuming that the rezoning or the use in this way
in whatever form was inevitable. It was inevitable

that there were risks and chances associated with it.

DEANE J: And these other grounds are the ones referred to by

Justice Williams in the last paragraph of his

judgment, are they, at page 836?

MR CALLINAN:	Your Honour, I think so. Could I say this that- - -
DEANE J:	He simply says:

I can see no merit in any other ground -

MR CALLINAN: Yes, I think that is right. I am a little bit

hesitant about answering that question.	I did
not argue the case in the Land Appeal Court.	I

argued it at first instance and in the Full Court

but, certainly, Mr Weigh's evidence and the

submissions in relation to it, as I understand it,

were always relied upon.

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GAUDRON J: It was ground 17 in the Full Court, page 806.

MR CALLINAN:  I am indebted to Your Honour, thank you.

Your Honours, could I say this: the way in which the

matter was dealt with in the Full Court in the end

was certainly a little different from the way in

which it was argued. I have to say at the outset

that I never advanced an argument in relation to the

environment in the terms in which the majority held

it should be defined and regarded. That is not to

say that I will not try to rely upon it here, and

we gain some comfort, of course, from the fact that
the legislature, apparently as recently as last week

or so, seemed to think in any event that the

definition was too narrow and needed to refer

expressly or needed expressly to embrance fauna, but

that,is, as Your Honours will see, the last argumenr to

which we refer.

MASON CJ: Yes, I have noted the position that you have accorded

it in your outline of argument.

MR CALLINAN:  I thought Your Honour the Chief Justice might

notice that. The case really was decided in a way,

I think that it is right to say, nobody completely

anticipated. But if I can come back to Your Honour

Justice McHugh's question, we rely upon the passages

in the MELWOOD UNITS case. Shortly I will give

Your Honour a more direct reference to the actual

passage. But it seems to have been accepted that

valuation questions do necessarily involve the

application of almost inevitably the application of

principles of law.

McHUGH J: Correct me if I am wrong. If I understand the

reasoning of the Land Appeal Court, it seems to have

accepted, at pages 790 to 791, that the council was

prepared to refuse to rezone with the intention or

hope that the Crown would resume.

MR CALLINAN:  We would say "hope" puts it too low, but yes,

certainly, Your Honour.

McHUGH J:	But then that court says, be that as it may, the fact
was that there was a rural zoning and the turtles
were there, the rookery was there and the council
would not have rezoned and, therefore, irrespective of any resumption scheme, the owners of the land have
got to face up to the fact that they had land which
was zoned rural and which would not be rezoned
residential.  Now, what is the error of law there?

MR CALLINAN: That council must act reasonably.

McHUGH J: Well, the finding at pages 792/793 is that they would

have been acting reasonably in refusing to rezone.

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MR CALLINAN:	Again I get back to what I said before. That involves a perverse finding and, we would submit,
a wrong application of the principles in relation
to rezoning because a council may not act for any
ulterior motive.  Now, all right, Your Honour says
absent ulterior motive, the consequence would
none the less have been a refusal of the application.
Your Honour, we say in relation to that that that
proposition really involves an entirely different
approach from that adopted by His Honour
Mr Justice Jacobs in the passage to which I referred
you in the SAN SEBASTIAN case.

McHUGH J: See, was that not really why the Full Court, in the

majority, swung out and struck out a new ground

because you could not succeed having regard to those

findings of fact?

MR CALLINAN: I do not, with respect, think so, because of

something that His Honour Mr Justice Connolly said.

His Honour seemed - and I say this with respect -

he seems to have become distracted, perhaps, by the

environmental matters, if I can put them that way,

but His Honour said at - I am· sorry, ·Your Honours, I

had the passage marked. Your Honours, I will find

the actual passages, but we have repeated them in

our outline at page 3, paragraph 4, and I will just

find the passage.

MASON CJ: That is at page 824 and it really follows the

discussion at 819 and 820.

MR CALLINAN:  Yes, it does. So that His Honour really starts

off to say that:

entitled to have their application for

rezoning considered free

His Honour said "not only" -

of the pressures of the National Parks and

Wildlife Service on the Local Authority - The first part we would respectfully adopt and it

is really because of that passage that I submit to

Your Honour that perhaps His Honour seems to have

become distracted, and I say that with respect, of

course.

BRENNAN J: The distraction might arise because His Honour is

concerned there to negative the influence of the

pressures and that does not cope with the finding

of fact made atpage 792 to page 793. He was

discounting the pressures,the Land Appeal Court said

there still would have been no rezoning.

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MR CALLINAN: 

However, the Land Appeal Court itself does take

account, we would submit wrongly - or the decision
of the Land Appeal Court cannot - the findings of

fact of the Land Appeal Court cannot be divorced -
that is the findings to which Your Honours have

referred me - cannot be divorced from the findings

in relation to the desire, if I can put it this way,
to acquire the land cheaply.

McHUGH J: 

Why not?

MR CALLINAN: 

Because the Land Appeal Court has found that and once it finds that, it is an error of law, in our

submission, we would submit, to approach the matter

upon any basis other than that.  The application

notionally - the application for planning permission

has to be considered notionally free from any
influence of that kind.

BRENNAN J: 

Does that not conflate two notions, the first being

that if the refusal to rezone was motivated by the

desire to have the land available at a reduced price,

then the decision to refuse to rezone might have

been affected by bad faith and was voidable. The

second is that even if that consideration were put

to one side, that the rezoning still would not have

taken place.

MR CALLINAN:  Your Honour, having however wrongly found - I,

with respect, accept what Your Honour is putting to

me, with great respect - having wrongly found,

however, we would submit, that it was

understandable and not wrong for the local authority
and the resuming authority to influence, as they did,
the decision, it is not really possible, we would
submit, to put those matters aside, and I do not,

really, with respect, accept that the court did do

quite that. Could I go to the passages to which

Your Honours are referring me in particular.

BRENNAN J: Page 792, the last paragraph, running on to 793,

the first paragraph.

MR CALLINAN:  Yes. Could I take Your Honours further back to

page 791 and ask Your Honours to read page 792,

the foot of page 792 in the context which really

starts about the middle of page 791, beginning with:

The subject resumption involves an

extension of an existing environmental park -

Then we would submit there is error of law in the next paragraph.

We think that the correct approach is to

put aside the fact of the resumption -

BlT4/8/RB	34	25/6/90
Murphy(2)

what one has to put aside is the scheme -

and to view the subject land in the

circumstances and surroundings (its
environment) which existed on the day of

resumption.

Then they speak of the sensitive environment and then, page 792:

It was submitted for the dispossessed

owners that the Council had refused rezoning

approval and held the land in its rural
zoning following the representations of the

National Parks and Wildlife Service and in the interests of protecting the turtles.

This may be assumed to be quite correct.

It was then contended, in effect, that the

rural zoning had been maintained in

anticipation of the resumption ..... the zoning

should be ignored -

and so on, and then, the last sentence:

That does not mean that if this scheme had

never been introduced there was not a

situation which would have militated

against the rezoning of the subject land.

We cannot fail to look at the position that, had there never been a scheme ..... the

position would have been that the land would

have already had a Rural zoning and any

proposed developer would have been faced with

a Council which would have been strongly and

reasonably opposed to any rezoning which may

have affected the rookery.

Now, I have already said that that finding of fact

is not correct and I appreciate what Your Honour

Justice McHugh says to me about that.

It is immaterial that in addition to that

basic situation the Council's refusal to

rezone the land was accompanied by the

intention or hope that the Crown would resume

it. This merely demonstrates the strength of

the Council's opposition to the development.

If superimposed on that there were

arrangements for a scheme which cannot in

law affect the land's valuation, that cannot

avoid the position which existed irrespectively

of the scheme. This is the point where,

unfortunately, confusion occurs

BlT4/9/RB	35	25/6/90
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And, Your Honours, in those passages certainly it

is very strongly implicit that the Land Appeal Court

finds as a fact that the council would refuse but I

do not know whether in the end they actually make an

explicit finding to that effect because they then go

on to discuss, on page 793, the nature of the scheme.

Could I take Your Honours to what is said at the foot of page 793, going over the page:

But there is a difference between the scheme that includes resumption and the basic

position which exists apart from the scheme

and which may attract other depreciating

factors, such as opposition to rezoning . The fact that other persons may be opposed to the

rezoning does not mean that the council is going

to act unreasonably in determining the application.

They do not seem to be saying up to there, as th~y do not seem to be making a finding of fact up to

there which is in the clear terms that Your Honour

Justice McHugh has put to me.

McHUGH J: Except they say:

We cannot fail to look at the position that ..... the position would have been that the

land would have already had a Rural zoning and

. . . .. would have been faced with a Council -

Surely they are findings of fact. They are dealing with hypothetical situations, so they are expressed in the conditional sense of "would have been".

MR CALLINAN:  But, of course, none the less they are still

required to look at, and we would submit they have

overlooked any potential that it may have. It may

well be that one would say the potential was

virtually valueless or that it had some value. There

may be all sorts of intermediate positions, but

they do not seem to have had regard to that. They

do not seem to have had regard, to put it at its

lowest, to the chance that it might have been rezoned,

absent improper influences.

MASON CJ: But that is all a question of the interpretation of

what they have said, and we have covered that,

Mr Callinan.

MR CALLINAN:  Yes, Your Honour. Could I give Your Honours a

reference to page 794, lower down, where we would

submit that there is error of law so far as the

Land Appeal Court is concerned in the statement that:

If in the POINT GOURDE case, the subject land

had not been resumed for a number of years after

the naval base had been established -

B1T4/10/RB	36	25/6/90
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I will not read it to you.	Then the Land Appeal
Court says:

The position in this case is even one

step further removed for there was no

original activity by any Authority setting

up the rookery. It was a natural phenomenon

that always constituted an impediment to

rezoning, even if all schemes were disregarded.

Your Honours, we would submit that there is no

question that for the State government department to act in the way in which it did was to act improperly

and in bad faith. On page 3 of our outline we

refer to TOOHEY's case and I will not go to it,

Your Honours, but could I draw your attention to the

passage from the judgment of His Honour the Chief Justice.

DEANE J:  What is that last sentence in paragraph 2 meant to

mean, Mr Callinan, "It is common ground ... "?

MR CALLINAN:  Your Honour, it was found by the land court -

it was common ground in all courts, that is what it

is meant to mean.

DEANE J:  That the decision refusing rezoning was bad.

MR CALLINAN:  Yes. And there was no other finding possible.

Could I give Your Honours a reference - could I refer Your Honours to the passages where we deal

with this.

DEANE J:  If that is so, do not trouble. I had not observed it.

MR CALLINAN:  It is probably wrong to suggest - and I withdraw

it if it does suggest it - that it is common ground

between the parties. It seemed to be common ground

to all the courts that that was so, the courts who

have dealt with the matter.

DEANE J:  I had read it as it is common ground between the

parties.

MR CALLINAN:  No, Your Honour. I do not think my learned friend

would accept that. It should have been made clear,

common ground in all the courts, and I would make

that -

BRENNAN J: Could you give us the passage from the Land Appeal

Court where that view is expressed?

MR CALLINAN:	Your Honour, in that passage that I have just read out. In the Land Appeal Court, page 790, that last
sentence and the one going over the page, beginning "Correspondence ..... with the intention or the hope that the Crown would resume." And then at page 792

BlTS/1/RB	37	25/6/90
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in the second paragraph where the Land Appeal Court

seems to be agreeing, "This may be assumed to be

quite correct."

It was submitted ..... that the Council had

refused rezoning approval and held the land

in its rural zoning following the representations -

it is not as clear as in the previous passage, but that

is the second that we point to in the Land Appeal Court's

reasons for that proposition.

DEANE J: That becomes a bit of a by-the-way though, does it

not, in that even if that be right, the rezoning would

stand and the question would then arise, what were

the prospects of this land, independent of the

scheme involved in the resumption?

MR CALLINAN:  Yes. The current zoning would stand and then that other question would arise, yes, Your Honour. I need

to take you briefly to the evidence in that regard.

Could I take Your Honours to volume 2 of the appeal

books- - -

MASON CJ:	What are you seeking to establish now, Mr Callinan?
MR CALLINAN:	The factors that motivated the council's refusal.
MASON CJ:	But is there a contest about that between you and
Mr Davies?
MR CALLINAN:	I think there is in the sense that my learned friend,

I think, says that it was a factor - well, I do not

know, Your Honour.	I understood him to be saying i:
was a factor.	Our contention is that it is the major

factor and that the evidence was one way in that

regard.

MASON CJ: Yes.

BRENNAN J:  Or that there were no considerations other than the

desire to provide to the government a reduced value

piece of land for resumption.

MR CALLINAN:  It is a question of construction. We put it as

high as that, yes, but I concede that it is a question

of construction, whether it goes - - -

BRENNAN J:  Of what?

MR CALLINAN:  Of correspondence - really, two letters from the department and a letter from the council. Your Honours,

could I refer you to volume 2, page 272, which was

the objection of 15 January of the department to the

rezoning application. Could I refer you then to

page 276, paragraph 2.2. It is the second part of

that, "However". The first paragraph is also relevant.

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While the subject land remains rural it is

likely that it will not cause teh loss of the

rookery and there is always the possibility

of the Crown purchasing the land at a fair

market price .....

However if the land is subdivided and

residences are built ..... not only is there

a real possibility of an adverse effect on

the rookery ..... but the option of Crown

purchase is virtually lost, for not only does

the cost become prohibitive ..... but in practical

terms it is doubtful whether any government

could consider - ·

doing that. Then at page 289, which is the letter

from the council to the department:

We are writing today to express our appreciation of the fact that you have given

us the services of your Mr. Limpus to liaise

with and assist Council. We would however be

pleased to know your thoughts in regard to

your Department meeting the expenses ..... We

would like to point out that Council is in

this case protecting the interests of the

State Government Departments.

MASON CJ:	But there is no precise finding, is there, about a
purpose to lower the cost of resumption?
MR CALLINAN:	No.

MASON CJ: Well what is the point of taking us to the evidence,

with a view to trying to obtain from us a finding

that that was the purpose or a major purpose?

MR CALLINAN: Well, it was uncontradicted evidence.

MASON CJ: But when you say uncontradicted evidence, it appears

to be documentary. Questions of interpretation

arise in relation to it. It is not the sort of issue that this Court is likely to pronounce upon.

McHUGH J:	And that letter of 15 June 1981 was written some three
or four months after the council had refused the
application, had it not?
MR CALLINAN:	And after the appeal had been lodged.
McHUGH J:	And after the appeal had been lodged.

MR CALLINAN: That does not make it- - -

McHUGH J:  I know, but it makes your task harder.

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MR CALLINAN:  Could I respond to Your Honour the Chief Justice

by giving you a reference to page 406. This was

evidence of Mr Leddy who was at the time that the

application was processed the advisor on town planning

matters.	He was actually an engineer but he was the
advisor on town planning matters to the council.	We

actually called him to give evidence and at page 406

his written evidence appears. Your Honours will

appreciate that a statement is usually furnished in

this jurisdiction and then there is supplementary oral

evidence in-chief and cross-examination.	The third
paragraph:

The Council held its general meeting on

27th February 1981 at which it was formally

resolved to refuse the applcation ..... It is

my opinion that the Council had no grounds

from an engineering and town planning aspect

for refusing the application.

BRENNAN J:  Look at the top line there, Mr Callinan:

reached its decision purely on the

environmental question of the rookery.

MR CALLINAN:	Yes.
BRENNAN J:	Does that not indicate that according to this

witness it was not for the purpose of procuring an

artificially depreciated value of the land that

this resolution was passed but in order to protect

the amenity of the rookery?

MR CALLINAN:  Certainly it can be read that way. I rely

principally upon the letters which Your Honour

the Chief Justice says is a matter of construing them,

but the two letters to which I have referred

Your Honours- - -

MASON CJ:	But it does seem to me that you face insurmountable
pieces of evidence to which you have referred in difficulties in asking us to draw a conclusion from
what appears to be really a much more complete mosaic.
I cannot imagine that we would be in a position to do
so.

MR CALLINAN: Well, Your Honours, as I say, one of the

possibilities that we contemplate is that the matter

might have to go back to be further considered.

MASON CJ:  I follow that. Mr Callinan, we will adjourn. The

Court will resume at 10 o'clock tomorrow morning.

AT 4.29 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 26 JUNE 1990

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