Valassis v Council of the City of Sydney

[1990] HCATrans 159

A1,r -!11,_~~STRALIA,1~ -~)'~'---

IN THE H-IGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S71 of 1988

B e t w e e n -

DENNIS VALASSIS

Applicant

and

THE COUNCIL OF THE CITY OF

SYDNEY

Respondent

Application for special leave

to appeal

MASON CJ
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Valassis 1 6/8/90

AT SYDNEY ON MONDAY. 6 AUGUST 1990. AT 9.35 AM

Copyright in the High Court of Australia

MR I. JACKMAN:  May it please the Court, I appear for the

applicant. (instructed by Patrick Hargraves & Co)

MR J.A. AYLING:  May it please the Court, I appear for the

respondent. (instructed by Pike Pike & Fenwick)

MASON CJ: Yes, Mr Jackman?

MR JACKMAN: 

Your Honours, this matter was brought before

the Court on a motion to strike out the applicant's
application for special leave for want of
prosecution. At the time that notice of motion was

filed and served the applicant was not legally

represented and was not legally represented either

at first instance or in the Court of Appeal. The

notice of motion prompted the applicant to retain a

solicitor and counsel for the purpose of bringing

an application for special leave.  Do Your Honours

have a copy of a grey coloured application book

which has not been filed but it is sought, by

notice of motion, which - I can provide the Court

with an additional copy.

MASON CJ: 

Yes. We only need one copy, Mr Jackman.

MR JACKMAN: That application book contains a notice of

motion by which the applicant seeks an enlargement

of time for the purpose of bringing an application

for special leave and also that leave be granted to

the applicant to file an amended application in the

form contained in that grey book.	I have had some
discussion with my learned friend.	The position, I

understand, is this: that if he does not move on

his motion to strike out for want of prosecution,

he has no objection to the present notice of motion

by the applicant being treated as returnable today

and is in a position to argue the notice of motion

in that grey book today.	We are also in a position
to do that.	We are in the hands of the Court as to

how the Court wishes to treat the application in

the notice of motion.

MASON CJ:  I think the course you have outlined, Mr Jackman, would be suitable. We will deal with your

application for leave to amend and then if that
application is successful, we will deal with the

application for special leave.

MR JACKMAN: If the Court pleases. The original application

for special leave to appeal was prepared by the

applicant himself without the benefit of a legal

representative. It shows that there is certainly a

want of understanding on the part of the applicant,

not only at the linguistic level, but also at the

legal level as to how such an application ought to

be brought and the grounds which ought to be

Valassis 6/8/90

contained in an affidavit for special leave to

appeal.

Since my instructing solicitor was retained on

26 July, there has been the opportunity to review

the basis on which an application for special leave

ought to be brought and the basis is a narrow point

of statutory construction arising from a regulation

under the Environmental Planning and Assessment

Regulations of New South Wales. It raises a

fundamental matter of statutory interpretation

relating to its existing use rights. Now,

Your Honours, it might not have been thought

controversial that statutory provisions which are

designed to protect and to preserve existing use rights ought to be construed as liberally as the

language will bear. That proposition was

enunciated by Mr Justice Gibbs in

Parramatta City Council v Brickworks and affirmed

by the High Court in Dorrestjin v South Australian

Planning Commission but that fundamental principle

of statutory construction has been controverted, it
is my submission, by the approach taken by the

Court of Appeal in the present case.

The leading judgment which was given by

Mr Justice Samuels does not advert to the

fundamental principle of statutory construction but

it is plain that the Court has adopted a narrow

construction of the regulation in dispute rather

than the liberal construction which was preferred

by the learned primary judge in the Land and

Environment Court. The fundamental principle of

liberal construction to which I referred was also

controverted by Mr Justice Samuels in his

dissenting judgment in the case of

Randwick Municipal Council v John G Simpson &

Associate and I can provide the Court with copies of that case and there are a couple of short

passages to which I wish to refer to indicate the differences of judicial opipion which have arisen in the kind of statutory provision now under
dispute.

At page 126 of the report in that case,

Mr Justice Samuels adopts the view that where a statutory provision relates to the change in existing use rights rather than simply the

continuance of existing use rights, then a narrow

rather than a liberal construction ought to be

preferred. In my submission, it is that view which

lies at the heart of the Court of Appeal's decision

in this case and further, in my submission, that

view is contrary to the overwhelming weight of the

authority which is that even where a statutory
provision relates to the change in existing use

rather than simply existing uses, then the

Valassis 3 6/8/90

principle of liberal construction must still be

preferred. In my submission, that approach was

adopted by the majority in the Randwick v Simpson

case. It was also adopted by the Chief Judge of the Land and Environment Court,

Mr Justice McClelland in the case of

Food Plus v Warringah Shire Council at page 88 of

the report which is provided to Your Honours. That

ease also concerned change in existing use and at

page 88, Mr Justice McClelland does not indicate

that there ought to be any difference in approach

where the question is one of changing existing use

rights rather than simply existing use rights.

In my submission, the decision of the Court of

Appeal in the present case is vitiated both by the

failure to advert to the fundamental principle of

statutory construction and, secondly, by the

adoption of a narrow view rather than the liberal

view which ought to be adopted.

MASON CJ: Can you just direct our attention to the passages

in the judgments of the majority in Randwick that

take a view contrary to that of Mr Justice Samuels

on this approach to construction?

MR JACKMAN:	I could direct Your Honours to pages 121 and 122 - it is at the very foot. That is the only
other reference to the principle of statutory
construction - at the foot of page 121 and the top of page 122 - and the majority adopted the view taken by Mr Justice Hardie at first instance which was expressly based upon the liberal construction.

Your Honours, the question of whether existing

use rights are to be narrowly or liberally

construed is at the heart of the legal dilemma

posed by planning legislation in that a

reconciliation must be made between the social

purposes of a planning scheme and the private

expectations of preserving the status quo. The

principle of liberal construction must be applied

or to an application for a consent of an authority to all existing use right provisions whether they relate merely to the preservation of a status quo for a change in the use.

In the present case, the ambiguity at stake is

in the meaning to be given to the word "proportion"

in clause 54(2) of the regulations; that clause is

extracted in full in the judgment of

Mr Justice Samuels at page 6 of that judgment,

about three-quarters of the way down and the

competing interpretations are these: the primary

judge preferred the liberal interpretation that

"proportion" refers to the proportion which the

part of the building subject to existing uses bears

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.. to the whole building. The Court of Appeal, on the

other hand, preferred a restrictive interpretation:

that "proportion" refers to those parts of the

each other, without any reference to parts of the	building subject to the existing uses, vis-a-vis,
building which might not have been used for an
existing use.

In my submission, the liberal view adopted by

the learned primary judge in the Land and

Environment Court ought to be preferred. It is

also my submission that, given the divergent
approaches which have been adopted to change in

existing use rights, the guidance of the High Court

is necessary in order that all existing use

rights - - -

MASON CJ:  Mr Jackman, I think we can stop you at this stage

on the application for leave to amend.	t would be
convenient to hear from Mr Ayling.

MR JACKMAN: If the Court pleases.

MR AYLING:  Your Honours, we have no - we raise no

opposition to the amendment. The proceedings were

in a state in which they could not have continued,

and the amendment would be necessary to bring them

into a state in which they could be understood by

the Court.

MASON CJ:  Very well. You can now proceed with your

application for special leave, Mr Jackman.

MR JACKMAN: Well, Your Honour, I would simply repeat the submissions which I have made on the application

for leave to amend. That covers the ground which

concerns the merits of the application for special

leave to amend and I have nothing further to say.

MASON CJ:  Now, can I ask you about this passage in the

judgment of Mr Justice Samuels at page 7 of his

judgment, page 19 of the grey application book.

You can see it in the bottom half of that page

where His Honour proceeds, after saying:

That conclusion disposes of the appeal -

to deal with the possibility that the matter should

be referred back to Mr Justice Bignold. Now, does

that present any difficulty from your point of

view? Do you need to call further evidence to
establish any part of the case which you now wish

to present in the proposed appeal?

MR JACKMAN:  No, Your Honour. That is a matter which was

raised in the original application for special

Valassis 5 6/8/90

leave, but it is not a matter which is pursued in

the amended application for special leave.

MASON CJ: It is established, is it, by evidence and finding

of fact that there was an existing use by way of

restaurant in relation to the premises that are

known, I think, as No 308?

MR JACKMAN:  Yes, that is so. I do not think that is in

dispute.

MASON CJ:  You do not think that is in dispute?

MR JACKMAN:  No. Nor is it in dispute that - well, there

are perhaps two views of the evidence as to the use

of No 304A, which was the premises subject to the

application for the Council's consent.	One view is
that it was used for an office by Mr Valassis.	The

other view is that it was simply vacant. But

Mr Justice Samuels indicates in his judgment that

even if it was an office that is not an existing

use because that use was itself unlawful. And so

no additional evidence would meet that point on the

part of the applicant. So, it is no longer sought

to call further evidence in a court below if this

were minded to adopt that course.

MASON CJ:  Yes. Thank you. Mr Ayling.

MR AYLING:  Your Honours, the application for special leave

is opposed. The subject-matter of Their Honours'

determination in the Court of Appeal was the

interpretation of a specific regulation,

regulation 54(2), made under the Environmental

Planning and Assessment Act, which regulation my

friend has already indicated provided a context for

dealing with applications in situations where it

was found that a building contained more than one

activity properly described as "an existing use" so

defined in the Act, and it was sought on the part

of the applicant to alter the proportions in which

the uses within the building in terms, one

imagines, of the floor space occupied were, in
fact, going to be used in the future.	The
regulation reads in this way:

Where a building, work or land is being used
for more than one existing use, the
proportions in which the several parts of the
building, work or land are being so used may,

with consent under the Act being obtained

therefore, be changed.

The simple point that arose before the Court

of Appeal, and which had also arisen in the earlier

proceedings between North Sydney Council v

Bevillestra Pty Ltd simply concerned the question

Valassis 6 6/8/90

whether, taking into account the use by the

regulation of the expression "so used" it was

legitimate to take into account other portions of

the building which were not being used for an

existing use, may not have been being used for any

purpose at all, so as to permit the extension or

migration, as it were, of an existing use occupying

part of the building to some other part of the

building where that use - indeed no other existing

use - had ever been being conducted; and certainly

was not being conducted at the time of the

application.

The decision of the Court of Appeal in the

Bevillestra case which is referred to in the

judgment under appeal here was a decision delivered

by Their Honours the President Mr Justice Kirby and

Mr Justice Mahoney and Mr Justice Priestley. It

was a joint judgment in which they also dealt with

the primary judge's initial reliance on another

regulation and found that that was unjustified.

But then at the invitation of the appellant went on to deal with the clause 54 point and disposed of it

in favour of the council. I have four copies of

that judgment which I hand up.

Your Honours, the Court of Appeal in that

judgment, as in the judgment under appeal, had no

difficulty in reaching the conclusion that

clause 54(2) did not have the operation urged for

it by the applicant. The most relevant passage

after the recitation of the format of the

regulation appears at page 5 and continues on to

page 6 of the judgment.

The factual situation in Bevillestra was that

there was a building that had been occupied in part
for offices and in part for motel use, the office

use being one which was an existing use, the motel use not being an existing use, and the application

was to convert the office portion of the building

to a motel use. The Court will see that at the

foot of page 5 and continuing into page 6 the court

expressed the view that the words of subclause (2)

of regulation 54 were perfectly clear in their

application. And, of course, the same view was

espoused in the judgment under appeal in this case.

With respect, that conclusion is one which is

manifestly correct, there being, in our submission,

no real basis for the application of the

proposition relied on by my learned friend from

Brickworks that subclause (2) could be expanded in

its meaning and effect simply by giving it a

liberal construction.

Valassis 6/8/90

Your Honour the Chief Justice might remember when that very point was argued, that Your Honour,	in a judgment, the Banool litigation back in 1973,
in a passage which has subsequently been very
frequently quoted in this context in relation to
not this regulation, of course, but section 309 of the Local Government Act, indicated that the
injunction for liberal construction of existing use
provisions was not a warrant for failing to give
due weight to the natural and ordinary meaning of
the words used as influenced by the context in
which they are found.

In our submission the current application is

without substance.

MASON CJ: What were the relevant existing uses in this

building treating the building as covering all the

relevant property numbers?

MR AYLING:  The situation, if I can just paint a picture of

it for Your Honours, is that it is a commercial

type of building of two stories occupying the whole

of a corner block in Redfern. On the ground floor

there are a series of shops or shop fronts in which

there are a number of different activities,

including in one of them a restaurant. There is a

flight of stairs leading up from ground level to

the upper floor which was added subsequently as I

understand the position. That upper floor is one

large open space. It was sought to obtain consent to the use of the upper floor as a restaurant, and

it was found that as at the relevant date there was

no then current existing use of that area.

What His Honour Mr Justice Bignold did at

first instance was' to say, in effect, that

clause 54(2) justified a finding that the use being

carried on in one of the shop fronts

downstairs - - -

TOOHEY J: Could you just give those numbers, Mr Ayling?

MR AYLING:  I think the shop front in question was 308. The

upstairs was called 304A.

TOOHEY J: Thank you.

MR AYLING:  He came to the conclusion that because part of

the building, that is, one of the shop fronts

downstairs, was being used at the relevant date for

a restaurant and hence constituted an existing use

of part of the building, it was legitimate to

permit the upper floor of the building to be used

for the same purpose on the basis that it was a

part of the building, and that the application was

simply one to change the proportions in which the

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building was being used for its existing uses under

clause 54. The Court of Appeal simply indicated

that that was not a legitimate, or even possible,

interpretation of clause 54.

MASON CJ: But was the building, that is, the entire

. building, being used for more than one existing

use?

MR AYLING:  It seems possible that there was an existing use

in one of the other downstairs shops.

MASON CJ: Apart from the restaurant in 308?

MR AYLING:	Yes, but there was certainly no existing use in relation to the upper floor of the building.
MASON CJ:	Now, when you say it seems possible
MR AYLING:	I am now trying to recall what the evidence was

in relation to that.

MASON CJ:  You see, we do not have Mr Justice Bignold's

judgment.

MR AYLING:	I think my friend has copies of it.
MR JACKMAN:	Yes, I have.

MASON CJ: And the result is we are not able to tell whether

there were appropriate findings that bring the case

within the words of 54(2).

MR JACKMAN:  Your Honour, I could provide to the Court

copies of that. It is my recollection that there

was an express concession on the part of the

council in the first instance - - -

MASON CJ: Now, is that recorded in Mr Justice Bignold's

judgment?

MR AYLING:  If Your Honour would excuse me for a moment.

Yes, page 10 of the judgment, Your Honour, second

paragraph, last sentence: 

It is conceded that premises No 308 are being used for a refreshment room purpose, and that

that purpose is an existing use. It is

likewise conceded that the other ground floor

premises, 306 and 304 are also used for

different existing uses.

MASON CJ:  Yes. So that that concession satisfies the

literal interpretation, literal reading of 54(2).

MR AYLING: Well, that concession - - -

Valassis	6/8/90
MASON CJ:	In other words, the building is being used for

more than one existing use.

MR AYLING: That is so, Your Honour. It satisfies that

portion of that regulation but, in our submission,

of course, it does not permit of the conclusion

that that portion of the building not being used

for the existing uses can be properly described as being building work or land used for more than one

existing use.

MASON CJ: Yes, I can understand the force of the argument

that you present, namely that the change is a

permitted change, but only within the framework of

then existing uses.

MR AYLING: Precisely, Your Honour. And, in our submission,

that is the only reasonable interpretation that the

regulation can bear. The Court of Appeal has so

held unanimously on two occasions. Two judgments involving five different justices have all had no

difficulty in corning to that conclusion, and in our

submission, there would be no utility in advancing

the matter beyond that to this Court.	Those are my
submissions, Your Honour.

MASON CJ: Thank you Mr Ayling. Yes, Mr Jackman.

MR JACKMAN:  Your Honour, as to the Bevillestra case, it

certainly concerns the same point, but it shares

the same defect of the Court of Appeal's judgment

in the present case, namely, that it fails to

advert to the fundamental principle of statutory

construction which ought to be applied to change of

use provisions in particular, and existing use

provisions in general. And secondly, it is also a
case in which the Court of Appeal has overturned

the decision of the learned specialist primary

judge in the Land and Environment Court.

As to the construction of the word

"proportion" in clause 54(2), although it might be

said that on a stricter literal interpretation, the

view adopted by the Court of Appeal is to be

preferred, none the less the interpretation of

"proportion" refers to the proportion which the

part of the building subject to the existing uses

bears to the whole building is strongly arguable,

and if one were minded to adopt a liberal

construction, then that view would be preferred.

If I can be of no further assistance to the

Court, those are my submissions.

MASON CJ: Thank you, Mr Jackman.

Valassis 10 6/8/90

The Court is of opinion that the decision of the Court of Appeal is not attended with sufficient

doubt to justify the grant of special leave to

appeal. The application for special leave is

therefore refused.

MR AYLING:  Your Honours, there was, of course, a motion

before the Court this morning in relation to the

dismissal of this suit for want of prosecution.	We
did not move on that motion, as my friend
indicated, simply because the defect which gave
rise to the motion was corrected by my friend's
appearance today. We would ask that there be an
order for the costs of that application, or that
motion, in our favour.

MASON CJ:  As well as the costs of the application for

special leave to appeal?

MR AYLING:	If there is any difference between them, and I am not certain that there is, it ought to be
covered, Your Honour.

MASON CJ: What do you say, Mr Jackman?

MR JACKMAN:	I do not oppose that, Your Honour.
MASON CJ:	The application for special leave to appeal is

refused with costs, including the costs of the

motion for dismissal for want of prosecution.

AT 10.05 AM THE MATTER WAS ADJOURNED SINE DIE

Valassis 11 6/8/90