We Two Pty Ltd v Shorrock (No 2) - [2005] FCA 34

FEDERAL COURT OF AUSTRALIA
Direct Factory Outlets Pty Ltd v Westfield Management Ltd
[2005] FCA 34
AVIATION – airport development – land uses – leases and sub-leases – development of Brisbane Airport – aeronautical and non-aeronautical facilities – whether permitted use under the Airports Act 1996 (Cth) – challenge by retail competitor
Airports Act 1996 (Cth)
Airports (Building Control) Regulations 1996 (Cth)
Airports Bill 1996
Evidence Act 1995 (Cth)
Federal Airports Corporation Act 1986 (Cth)
Airports (Transitional) Act 1996 (Cth)
Aviation Legislation Amendment Act (No 1) 1997 (Cth)
Acts Interpretation Act 1901 (Cth)
City Area Leases Ordinance 1936-64 (ACT)
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509
Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389
Maunsell v Olins [1975] AC 373
PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Broken Hill Proprietary Company Ltd v Commissioner of Taxation (1968) 41 ALJR 377
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Owendale Pty Limited v Anthony and Another (1967) 117 CLR 539
Marks & Spencer Ltd v London County Council [1952] Ch 549
DIRECT FACTORY OUTLETS PTY LTD v WESTFIELD MANAGEMENT LTD, CPT MANAGER LTD and BRISBANE AIRPORT CORPORATION LTD
Q92 OF 2003
COOPER J
BRISBANE
3 FEBRUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY

Q92 OF 2003

BETWEEN:

DIRECT FACTORY OUTLETS PTY LTD
ACN 087 112 301
APPLICANT

AND:

WESTFIELD MANAGEMENT LTD
ACN 001 670 579
FIRST RESPONDENT

CPT MANAGER LTD
ACN 054 494 307
SECOND RESPONDENT

BRISBANE AIRPORT CORPORATION LTD
ACN 076 870 650
THIRD RESPONDENT

JUDGE:

COOPER J

DATE OF ORDER:

3 FEBRUARY 2005

WHERE MADE:

BRISBANE

THE COURT DECLARES THAT:
1.The final Master Plan for the Brisbane Airport approved by the Minister for Transport and Regional Services on 7 May 2004 is a valid and effective final Master Plan for the purposes of the Airports Act 1996 (Cth).
2.The Major Development Plan for the Outlet Centre approved by the Minister for Transport and Regional Services on 25 June 2004 is a valid and effective Major Development Plan for the purposes of the Airports Act 1996 (Cth).
3.The works permits issued by the Building Controller for the Brisbane Airport on 24 September 2001 and 12 September 2002 under the Airports (Building Control) Regulations 1996 (Cth) are valid and effective works permits for the purposes of those Regulations and the Airports Act 1996 (Cth).

4.The entry into the written agreements to lease by Brisbane Airport Corporation Limited and Direct Factory Outlets Pty Ltd, dated 28 July 2003 (as varied by Deed of Variation dated 30 July 2004) and 30 July 2004 respectively, and the carrying of the terms of such agreements into effect are:
(a)not conduct by Brisbane Airport Corporation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCA 34
Decision Date: 3 FEBRUARY 2005

CaseChat Overview and Summary

In We Two Pty Ltd v Shorrock (No 2), the court considered a dispute regarding the validity and enforceability of various planning and development approvals for a proposed outlet centre near Brisbane Airport. The applicant, We Two Pty Ltd, sought declarations concerning the approval of a Major Development Plan for the outlet centre by the Minister for Transport and Regional Services, and the legality of certain agreements and permits issued by Brisbane Airport Corporation (BAC) in relation to the development. The respondents, including Westfield, Centro, and Direct Factory Outlets Pty Ltd, contested the validity of these approvals and agreements, arguing that BAC lacked the authority to grant certain permits and that the development contravened the Airports Act 1996 (Cth) and related regulations.

The primary legal issues before the court were whether the Major Development Plan, works permits, and agreements between BAC and DFO were valid and enforceable, and if BAC had the authority to grant the necessary permits. The court had to examine the statutory framework governing airport development, the Airports Act 1996, and the Airports (Building Control) Regulations 1996, to determine the extent of BAC's powers and the legality of its actions.

In its reasoning, the court found that the Major Development Plan and associated permits were valid and effective, as they had been duly approved by the Minister for Transport and Regional Services. The court dismissed the contentions of the respondents that the Building Controller lacked the authority to issue the permits. The court also held that the agreements between BAC and DFO were lawful and did not contravene the Airports Act or the regulations. The declarations sought by DFO were largely denied, as the court found that the development plans were still conceptual and it was premature to make the declarations. However, the court did make specific declarations affirming the validity of the final Master Plan, the Major Development Plan, the works permits, and the lease agreements.

The final orders of the court were that the application by Westfield and Centro would be dismissed, and specific declarations regarding the validity of the Major Development Plan, works permits, and lease agreements were made in favour of BAC and DFO. The court reserved the question of costs for further hearing.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The background to the application for approval of the Major Development Plan was contained in part 1.1 of the application which stated: ‘1.1 BackgroundThe proposal described in this Draft Major Development Plan (Draft MDP) will result in the development of a 5.76 ha Outlet Centre by Brisbane Airport Corporation (BAC) located at the entrance to the Brisbane Airport site at the intersection of the Gateway Motorway and Airport Drive. The proposed development is known as the Outlet Centre (see Figure 1.1a).The Outlet Centre is located with the Gateway Park precinct which was identified in the 1998 BAC Master Plan as an area that will include a mix of ‘business and commercial activities’ (see Figure 1.1b). Gateway Park has more recently been re-named Number 1 Airport Drive and in this report the broader Number 1 Airport Drive area will be referred to as the ‘precinct’.The entire precinct has recently been formed with bulk earthworks and is currently vacant. Its position adjacent to the arterial road network makes it a suitable location for the proposed development.The proposal involves two single storey buildings with a combined gross floor area of approximately 21,340m² to accommodate an outlet centre comprised of independent discount shops arranged around an internal mall system. The term “Outlet Centre” means a building comprised of many centrally managed, separately leased retail outlets in which the majority of outlets consistently offer for sale a substantial proportion of stock which is:·Sold below normal retail prices; and/or·Surplus, out of season, seconds or samples.It is proposed that the development consist of two buildings separated by a concourse area:·Building 1 – 10,627m² (gross floor area);·Concourse area – 908m² (gross floor area); and·Building 2 – approximately 9,804m² (gross floor area).Associated facilities include surface car parking for 1008 cars (on a non-exclusive use basis), installation of drainage and water treatment facilities, site landscaping throughout the site. Road and other works (not part of this Draft MDP) are proposed beyond the development boundary.Brisbane Airport Corporation is seeking permission for this development under Section 94 of the Airports Act 1996. Pursuant to Section 90 of the Airports Act 1996 the full proposed development cannot be undertaken until a ‘Major Development Plan’ is approved for the construction and operation of the Outlet Centre (including two buildings, concourse area, car park and associated facilities). However, if Building 1 (and associated facilities) alone were built, the value of this project would be under the $10M threshold identified in the Airports Act 1996 and would not require MDP approval.1.2Project Development Phases1.2.1 Bulk Earthworks, Roads and ServicesEarthworks have now been completed for the entire precinct (within which the Outlet Centre site is located) Following the completion of the earthworks development a grass cover was established on site to prevent Aeolian erosion and dust generation.’(original emphasis)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COOPER J

It follows that Westfield and Centro fail to make out the contentions pleaded in par 32 of the SOC that the Building Controller had no power to grant the earthworks permits which it did and that they were in consequence of no force or effect.CONCLUSION Westfield and Centro have failed to make good any ground raised in the SOC in support of the relief sought. Their application will be dismissed. None of the respondents in the proceedings Q64 of 2003 cross-claimed for declaratory relief. In Q92 of 2003 DFO seeks declaratory relief. The granting of such relief is always discretionary and will only be made where there is some utility in doing so. The direct interest of DFO in both proceedings was its contractual rights arising out of an agreement for lease dated 28 July 2003, as varied by Deed of Variation dated 30 July 2004, and a further agreement to lease dated 30 July 2004, and, the ability of BACL to lawfully perform its obligations under those agreements in favour of DFO. Those obligations go to constructing the buildings DFO1, DFO2 and the concourse area and subletting those areas to DFO for a term of 20 years for the commercial uses specified in the agreements. I am not prepared to make the declarations sought in par 42 of DFO’s fourth amended statement of claim dated 24 July 2004 in proceedings Q92 of 2003. At the present time too much of the development at Number 1 Airport Drive is merely conceptual, and in any event, to bring it into effect may or may not give rise to obligations under Divs 4 and 5 of Pt 5 of the A Act depending upon the exact nature of any final development and how the building activity elements of it are carried out. I am prepared to make the following declarations:1.The final Master Plan for the Brisbane Airport approved by the Minister for Transport and Regional Services on 7 May 2004 is a valid and effective final Master Plan for the purposes of the Airports Act 1996 (Cth).2.The Major Development Plan for the Outlet Centre approved by the Minister for Transport and Regional Services on 25 June 2004 is a valid and effective Major Development Plan for the purposes of the Airports Act 1996 (Cth).3.The works permits issued by the Building Controller for the Brisbane Airport on 24 September 2001 and 12 September 2002 under the Airports (Building Control) Regulations 1996 (Cth) are valid and effective works permits for the purposes of the Regulations and the Airports Act 1996 (Cth).4.The entry into the written agreements to lease by Brisbane Airport Corporation Limited and Direct Factory Outlets Pty Ltd dated 28 July 2003 (as varied by Deed of Variation dated 30 July 2004) and 30 July 2004 respectively, and the carrying of the terms of such agreements into effect are:(a)not conduct by Brisbane Airport Corporation Limited in contravention of s 32 of the Airports Act 1996 (Cth); and(b)not prohibited by the operation of any of the provisions of the Airports Act 1996 (Cth) or the regulations made thereunder. I will hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

Established by: COOPER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	Q92 OF 2003

JUDGE:	COOPER J
DATE OF ORDER:	3 FEBRUARY 2005
WHERE MADE:	BRISBANE