RSL of Australia (Victorian Branch) v Moreland City Council M64/1997 [1997] HCATrans 436 (12 December 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M64 of 1997

B e t w e e n -

RETURNED & SERVICES LEAGUE OF AUSTRALIA (VICTORIA BRANCH) INC. (GLENROY SUB-BRANCH)

Applicant

and

MORELAND CITY COUNCIL

First Respondent

THE CARLTON CRICKET & FOOTBALL SOCIAL CLUB LIMITED

Second Respondent

THE UNITING CHURCH IN AUSTRALIA

Third Respondent

JOAN GILCHRIST

Fourth Respondent

FAYE WOODS

Fifth Respondent

KELVIN THOMSON

Sixth Respondent

IRENE THOMSON

Seventh Respondent

ROSEMARY KERR

Eighth Respondent

Application for special leave to appeal

BRENNAN CJ

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 1997, AT 11.10 AM

Copyright in the High Court of Australia

____________________

MR G.H. GARDE, QC: If the Court pleases, I appear on behalf of the applicant (instructed by De Marchi & Associates).

MR A.E. HOOPER, QC: If the Court pleases, I appear with my learned friend, MR S.B. SPITTLE, on behalf of the second respondent (instructed by Baker & McKenzie).

BRENNAN CJ: Thank you.

MR GARDE: If the Court pleases, this is an application which arises from the judgment of the Court of Appeal of the Supreme Court of Victoria. Before turning to the matters of principle which arise in our submission in relation to this application, we do wish to - - -

McHUGH J: Well, you might have some trouble identifying the question of principle because I have to confess at the moment, I do not see any question of principle in this case that would attract the grant of special leave. You will have to push this hard.

BRENNAN CJ: Perhaps you can tell us what this special leave question of principle is so we can direct our minds to it, Mr Garde.

MR GARDE: Yes, very well. I take the Court to page 132 of the application book and in particular I direct the Court's attention to paragraphs 4.1 through to 4.3 and 4.5 and 6. The Court will have appreciated that - - -

GUMMOW J: Well, 4.1, that does not say much. What is the next one?

MR GARDE: Paragraph 4.2.

GUMMOW J: Yes.

MR GARDE: And then I draw particularly the Court's attention to 4.6.

GUMMOW J: I do not think that is meeting what Justice McHugh was putting to you.

MR GARDE: Can I develop this by reference to authority - - -

McHUGH J: It all looks very woolly at the moment, not to mention that it is a planning appeal and at the moment I will need some explanation as to why this mass of material has been put forward, no doubt at somebody's expense, probably the expense of your client.

MR GARDE: Not by us, your Honour.

BRENNAN CJ: It seems to have been an exercise in the production of paper which is in inverse proportion to the issue of law involved.

MR GARDE: I can only repeat what I said a moment ago, if the Court pleases. I do wish to take the Court to the two extracts from the decision of this Court in Pioneer Concrete v Brisbane City Council which highlight the vice which has arisen in this instance. And at page 514, Sir Ronald Wilson, said at about line 15 that it was:

not open to an applicant -

for planning permission:

arbitrarily to nominate a limited area of land and thereby restrict the range of incidental uses which he must disclose in his application. Rather the converse is true. The extent of the land in respect of which an applicant must seek consent is dictated by the proposed use including all incidental uses necessarily associated with the primary use in respect of which consent is required.

And Sir Ninian Stephen said at page 503 through to 505 that, if an application, that is a planning application, is severed, in other words severed so that the permission is ultimately achieved in a piecemeal manner, then that process is likely to impede the proper consideration of the application - this is at page 504 if the Court pleases:

Only if it is presented as a whole and at the one time is there likely to be full opportunity for the tribunal and for objectors properly to assess it in all its aspects. The present case demonstrates the consequence of piecemeal application.

A little later at page 504, his Honour refers to the particular circumstances of that case and then says that:

All this would tend to make it difficult for the council or, for that matter, the Local Government Court, to treat as other than somewhat of a formality any subsequent application for consent to the proposed access route. To a degree at least, the outcome of that subsequent application would have been pre-judged, and this despite the fact that the consent given to the first application was conditional upon consent being granted to the later access route application.

Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma.

And without reading the balance of that passage, the dilemma that occurs is, as the Court will appreciate, that once the first permit is granted, it is very difficult for authorities later to refuse the subsequent permits which are in fact necessary for the development to proceed. And this Court in this decision was stressing the importance of the whole of the proposal coming forward so that it could be considered rather than to see the planning system and the tribunal, and the court process, committed step by step without anyone at any stage ever having a proper opportunity of examining the whole of the proposal.

What happened in this case, if I can briefly refer to the facts which are complex and perhaps difficult to identify in terms of what actually transpired in this case, what occurred was that there was an application for a planning permit for what were formerly office premises for the ground floor only of a building at 177 Glenroy Road, Glenroy. The Council was supportive of that application which was for a gaming venue; subsequently, there were a very large number of appeals to the Administrative Appeals Tribunal.

A short time before that appeal was to be heard, within three weeks of the hearing date, what then transpired is that the respondent, the Carlton Club, decided to very greatly expand its proposal by doubling it so that when the matter commenced on day one of the hearing in February of 1996, the position was that notice had been given at that stage of intent to make application in relation to the whole of the facility, so doubling its floor area to about 900 square metres. However, no amendment was actually made and the hearing proceeded. My client presented its case shortly after the case of the responsible authority was presented on day one of the hearing. The other objectors then presented their cases over days two and four and the present respondent presented its case over days four and six. And what transpired is at the very last moment before the end of the hearing, counsel for one of the other objectors pointed out that there was no amendment which had been made, consideration of it having been deferred, and that in the terms of section 53 of the Planning Appeals Act 1980 of Victoria, that it was mandatory if an amendment was to be made that it had to be made during the hearing, as one might have thought.

If the Court pleases, against the submission of my client, so that amendment was made. But what also transpired, and this gives rise to the piecemeal nature of this application, during the final days of the hearing after the objectors had presented their cases, it emerged that if the proposal was to proceed, then there were some two additional sites that were actually necessary so that instead of there being just - - -

BRENNAN CJ: Was all this done pursuant to a statutory power to do it?

MR GARDE: Your Honour, the position is that the amendment was granted by the tribunal pursuant to section 53 of the Planning Appeals Act 1980 . In terms of the problem in relation to the other two sites, there is no relevant statutory provision. Our complaint is, if the Court pleases, fundamentally about the process which was adopted rather than a complaint about the interpretation of a particular statutory provision.

GUMMOW J: Well, that makes the case even weaker.

McHUGH J: Yes, exactly, that is what I said to your earlier. I cannot see any special leave point in it. You complain, in this particular case, that the procedures operated unjustly; that is as high as you can put it.

MR GARDE: If the Court pleases, the position is now, as a consequence of the decision of the Court of Appeal, that there seems to us and in our submission to be a divergence of view as to how this particular issue is to be approached now arising between the Court of Appeal in New South Wales, the Court of Appeal in Queensland and the Court of Appeal in Victoria. And if I can highlight that now by reference to authority, one of the - - -

McHUGH J: Well, I would have thought that in Victoria you would be governed by the Court of Appeal of Victoria.

MR GARDE: If the Court pleases, when we look at the reasons for decision of the Court of Appeal, it is to be noted that the principle enunciated by this Court in the Pioneer Case is said by the Court of Appeal to be applicable in Victoria. Unlike New South Wales where, as a consequence of the Ligon decision, derived as it is from the concept of use and development in the equivalent New South Wales legislation, that is not the case. But in Queensland, as a consequence of the Pioneer Case and also as a consequence of the decision of the Court of Appeal of Queensland in the McBain Case, which has also been provided to the Court in our small patch of cases, the position is that the concept of finality of decision making is accepted in New South Wales it would appear, and in Victoria. But as a consequence, we would say, of the Court of Appeal's decision, there is a divergence from the approach referred to in Pioneer, the approach referred to the Mison Case and the approach referred to in the McBain Case.

McHUGH J: Well, can I ask rhetorically, so what? You were in Victoria. You have a Victorian legislation and the Court of Appeal has said that the Pioneer Case, or accepted the Pioneer Case applies, but the court refused to characterise the conduct of the proceedings in the way that you claim. Justice Hayne said that he did:

not accept that the changes that were proposed and allowed -

and I am reading from 101 of the book -

in this case transformed the application into a proposal radically different from the one originally put forward or amounted to the substitution of a fresh application.

And again at 103, at line 10, he said:

Nor do I accept that the present application was properly to be seen as one of several applications to be advanced in piecemeal fashion.

And for that reason he took the view that the Pioneer Concrete Case had nothing to do with it. He said at 104:

I am content to assume, without deciding, that the principle considered in the Pioneer Case applies in Victoria.

This is a case about facts and characterisation of them. You could go up and down this judgment all day and you would not find a special leave point in it unless you can bring to my attention something that does not appear in your written materials or in your argument so far.

MR GARDE: Well, I would take the Court to the decision of the Court of Appeal in Queensland in McBain v Clifton Shire Council.

BRENNAN CJ: Why?

MR GARDE: Because of the principle which is set out in the passage I propose to read to the Court and the principle that is set out is the principle of finality of decision making in administrative decision making. We submit that there is no difference in the application of this principle, depending on what part of the eastern seaport of Australia that you happen to be on. It is a principle of general application, it should be applied in Victoria just as it is applied in other States.

BRENNAN CJ: What is the principle then?

MR GARDE: The principle is this, that - this is page 374 in the reasons for decision of the court:

Obviously, decisions directly required by the Act to be made by a Council in accordance with the statutory process cannot be delegated or deferred for decision outside that process. However, all parties accepted that there is a wider "principle of finality" established by such cases as Mison v Randwick Municipal Council -

That is the New South Wales Case, and then there are a list of many other cases which are there to be set out.

The Mison principle, as referred to by the Court of Appeal in Queensland is itself set out at page 739 of that decision in the New South Wales Court of Appeal, where it is stated as follows, this is 739 in the reasons for decision of his Honour Justice of Appeal Clarke, this is the bottom of letter G:

Where a consent has been granted in terms which leave open for later decision a particular aspect of the planned development the question may arise whether the consent is final. This will not necessarily be the case. Where, however, the question does arise there may be cases in which the answer is clear. In other instances questions of degree may be involved. It is neither possible nor desirable to attempt to lay down a criterion to be applied in every case in determining whether a consent is final. What must be decided is whether the consent finally determines the development application.

And now the principle is stated after that introduction by the court:

Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final.

BRENNAN CJ: What has that got to do with this case?

MR GARDE: What it has got to do with this case, your Honour, is this, that the extent of the development on the subject land is wholly dependent on whether car parking can be found to support the development.

BRENNAN CJ: Has any consent been given?

MR GARDE: No, your Honour. What transpired is that in the course of the applicant's case before the tribunal the need for other land areas to be made available to support the car parking proposed for the expanded use was identified. No one had known about it until that point of time and the consequence of that was that the tribunal sought to impose a condition to the effect that the development could not proceed unless and until a stated amount of car parking was provided. But the problem with that approach to decision making is, we submit, that it contravenes the Pioneer Concrete approach and it contravenes the principle of finality and it denies all the parties involved the opportunity of addressing the proposal in a complete sense as to its ramifications. The situation on the facts is that the land areas later identified are those which immediately adjoin my clients land, so whilst we were objecting to the proposal, we now find ourselves confronted with a permit having been granted for the proposal on the far side of the road with the necessary concomitant that adjoining land areas are now going to be employed for the particular purpose. Now - - -

McHUGH J: Yes, but the case developed in a particular way. The judges of the Court of Appeals thought there was no radical change from the original application and then the solicitor representing your client conceded that it was open to the tribunal against that background in respect of car parking, to prescribe a condition that suitable car parking arrangements be provided as a condition of the use of the premises. So, your point having been conceded, at the moment the case is very abstract. The decision in the Administrative Appeals Tribunal has been set aside, the matter has been sent back for a re-hearing. One does not know what will happen on the next occasion. You may succeed on your evidence about the social and economic effects. The application may be dismissed.

MR GARDE: Although successful in the Court of Appeal, your Honour, the difficulty we have is that the re-hearing that we have been granted is of a limited nature. We cannot ventilate the particular issues that we come to this Court to seek by way of redress. The so-called concession is, if your Honour pleases, referred to on page 138 of the application book in the course of our learned friend's submissions and we would respectfully submit that it should not be construed out of its immediate context.

Our learned friends do set it out at line 5 on page 138 in the course of a discussion between the tribunal and the solicitor appearing on behalf of my client, and the Court will see that it is a discussion about the provision of, imposition of conditions to address parking requirements. But it in no sense deals with the suggestion that other land areas on the other side of the road or remote from the appeal site can be brought in aid to support car parking areas. But if the position is - - -

GUMMOW J: What you really have come here to agitate is that part of the Court of Appeal orders which remitted the matter to the tribunal in a particular fashion.

MR GARDE: Yes, our complaint is that the remission of the matter for re-hearing to the tribunal should have been general in its nature and not confined to the social and economic matters as to which we were successful in the Court of Appeal.

McHUGH J: Well, you are entitled to lead evidence of and concerning any relevant change in circumstances since the original hearing of the application; it is to go back before a differently constituted planning division tribunal and one would have thought every issue is open for re-argument. It has to be, has it not?

MR GARDE: No, your Honour - - -

McHUGH J: The determination is set aside.

MR GARDE: Your Honour, the answer to that is this, that we are only entitled to ventilate planning issues if they relate to a relevant change of circumstances. We are not permitted, unfortunately - - -

McHUGH J: When you say "ventilate", that is a rather misleading term to use, with respect, because what you are limited to is such further evidence as the tribunal sees fit to receive. The Court of Appeal has said nothing about the arguments that you are going to put forward. After all, the determination of the tribunal has been set aside and it has been sent back to a differently constituted tribunal. The whole matter must be at large on the evidence already received, plus this additional evidence relating to social and economic effects or change of circumstances. Apart from that, it is all up for grabs.

MR GARDE: Your Honour, the problem that we face is that the only issues that we can raise relating to planning generally are those which can be described as a relevant change of circumstances, whereas the issues that I have attempting to inform the Court about relate to the past circumstances. So we are, in essence, denied the opportunity in the rehearing to tackle those matters.

McHUGH J: Where do you get that from, Mr Garde.

MR GARDE: That is from the Court of Appeal's order.

McHUGH J: Well, would you take me to that order, because I am afraid I cannot see it?

MR GARDE: Yes, your Honour.

McHUGH J: There seems to be nothing in the Court of Appeal's order which would prevent you from submitting that the applicant has failed - that the permit should not be granted because they have not provided proper parking conditions.

MR GARDE: Yes, I was referring, your Honour, in application book 106 to line 23.

GUMMOW J: Well, the order is at 110, is it not?

MR GARDE: Yes, that is better.

McHUGH J: Because 110 :

1. The appeal is allowed.

2. The determination of the Tribunal is set aside.

3. The matter is remitted for rehearing (with the hearing of further evidence), such further evidence to be limited to -

(a) and (b) -

before a differently constituted Planning Division Tribunal.

It is submitted for re-hearing. Everything is at large apart from the evidence that is already given. You are confined to that plus the additional evidence about significant social and economic effects and changed circumstances.

MR GARDE: Yes, (a) is confined to:

receive of and concerning any relevant change in circumstances since the original hearing.

Well, it raises the issue, of course, as to what is a relevant change of circumstances. The problem that we have is that the matters which arose in the course of the previous hearing, could hardly be described - - -

GUMMOW J: You are still not within cooee of special leave, I think.

BRENNAN CJ: I think perhaps you have said what you can say Mr Garde.

McHUGH J: It is a valiant effort.

BRENNAN CJ: I should say that there are certificates from the Deputy Registrar certifying that she has been informed by Mrs Rosemary Kerr, the eighth respondent in this matter, that she does not wish to have any representations made on her behalf. She has been informed by Messrs Dunhill Madden & Butler, solicitors for the third, fourth and fifth respondents, that they do not wish to have any representations made on their behalf at the hearing of the matter, and she has been informed by Mr Kelvin Thomson, the sixth respondent, that he does not wish to have any representations made on his behalf at the hearing of the matter and, similarly, she has received similar advice from the Acting Manager of the Planning Services, Moreland City Council, for the first respondent, that the first respondent does not wish to have any representations made on its behalf at the hearing of the matter.

We need not trouble you, Mr Hooper.

The application raises no question of principle which requires a grant of special leave. Special leave is therefore refused.

MR HOOPER: We apply for costs, your Honour.

BRENNAN CJ: Including the costs of this huge mass of material?

MR HOOPER: It was lodged in response to what had been set out by my learned friend in his summary of argument and it was provided simply to have the authorities available, should they be required, to respond to matters that might have arisen from the authorities that my learned friend had set forth in support of his summary. Unfortunately, the two sets of authorities had to be simultaneously filed and we probably erred on the side of insurance against not having authority available to you. Rather we were not expecting the Court to traverse all those authorities but only if the matter arose we did not want to be in the position of not having it.

BRENNAN CJ: There is a misconception as to the way in which this Court approaches the matter of special leave. If there is a question of principle to be addressed, then that question of principle is usually to be found in a very short compass. It can be identified with some specificity. If arguments range so widely that there is a mass of material to be considered, obviously there has been some failure on the part of one or both parties to understand what the function of this Court is.

MR HOOPER: I must say, with respect, that I had some difficulty, given the way in which the application for special leave was expressed, in conjunction with the way in which the grounds of appeal were set forth in the proposed notice, and there seemed to be no specific indication as to what particular basis the special leave point was to be argued upon. Indeed, the Court raised that issue directly with Mr Garde at the outset. Now, in those circumstances, rather than be bereft of authority should the applicant be ranging on a wide basis, we simply took the precaution of having copies available for the Court if required. I understand what your Honour is saying.

BRENNAN CJ: Special leave will be refused with costs but the allowance of costs, including the allowance of costs of photocopying material, will be a matter for the discretion of the Taxing Master, having regard to the terms in which the application for special leave was cast and the issues which might have arisen for consideration.

MR HOOPER: If the Court pleases.

AT 11.40 AM THE MATTER WAS CONCLUDED