Scotts Agencies Pty Ltd v City of Mount Gambier & Ors A31/2000 [2001] HCATrans 388 (17 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A31 of 2000

B e t w e e n -

SCOTTS AGENCIES PTY LTD

Applicant

and

CITY OF MOUNT GAMBIER

First Respondent

BROWN FALCONER GROUP PTY LTD

Second Respondent

NOSEDA PETROLEUM PTY LTD

Third Respondent

ALLAN HARRISON T/AS AMPOL EASTERN

Fourth Respondent

MOBIL OIL AUSTRALIA LIMITED

Fifth Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 17 AUGUST 2001 AT 9.32 AM

Copyright in the High Court of Australia

__________________

MR A.J. BESANKO, QC: If the Court pleases, I appear with my learned friend, MR S.W. HENRY. (instructed by Thomson Playford)

MR B.R.M. HAYES, QC: If the Court pleases, I appear with my friend, MR L.R. CROTTI, for the second respondent. (instructed by Clelands)

GLEESON CJ: There is a certificate from the Deputy Registrar that she has been informed by the solicitors for the first respondent that the first respondent will abide the order of the Court. The first respondent would, however, oppose any orders for costs against it and would seek to make submissions if costs were sought against the first respondent. There is also a certificate from the Deputy Registrar that she has been informed by the solicitors for the third to fifth respondents that the third to fifth respondents do not wish to participate in the hearing of the matter. Yes, Mr Besanko.

MR BESANKO: Your Honours, could I deal with three matters: first, what we say is the question of principle; secondly, why we say the matter is an important matter and, thirdly, the question of the probative value that was given to the evidence in any event by the Full Court? Your Honours, the point of principle we submit is illustrated if one goes to paragraph 45, page 28 of the application book. His Honour the Chief Justice in that paragraph draws a distinction between a development which should be included in the city centre zone, on the one hand, and development that does not need to be in that zone, on the other. In the first case he says turnover and competitive effect may be relevant matters for consideration, but in the second case he says that those matters are not relevant.

GLEESON CJ: Is this a question of construction?

MR BESANKO: Yes, your Honour.

GLEESON CJ: Construction of - - -?

MR BESANKO: A development plan.

GLEESON CJ: The Mount Gambier Development plan?

MR BESANKO: Yes, your Honour. We say, your Honour, that this particular matter arises under the various development plans throughout South Australia. We have included in our book of materials under tab 5 excerpts from development plans that apply in various council areas throughout South Australia.

HAYNE J: Let it be assumed that there is common form provision throughout the State. What is the point of principle that would warrant a grant of leave to this Court?

MR BESANKO: We submit, your Honour, that the development plans talk about the integrity of centres, of the hierarchy of centres, and the need not to hinder the development of those centres. The proper interpretation of those provisions and, in particular, whether turnover and competitive effect are considered by planning courts, local government authorities and so on, when approaching applications involving retailing or shopping is the point of principle.

GLEESON CJ: This seems to have a fairly local flavour, Mr Besanko.

MR BESANKO: Yes, your Honour. We accept that to a point. We would submit though that it is a matter important throughout South Australia and it is a matter that involves not only the planning courts but also local authorities.

GLEESON CJ: Can you point to the language that has to be construed?

MR BESANKO: Yes, your Honour. If your Honours go to page 21 of the application book, there are two provisions, your Honours. First of all, in paragraph 10 his Honour sets out what he says is the text to objective 11 - and your Honours see that at line 34 and following.

GLEESON CJ: I just want to understand the question of construction that you say arises.

MR BESANKO: What we say, your Honour, is that in applying the words "so long as the integrity of the centre hierarchy is not compromised", what his Honour has said is that one can consider turnover and competitive effect if the particular development should be included in the centre zone, but if it is something that does not need to be included in the centre zone, then one does not consider competitive effect. We say, with great respect, that his Honour has read into that provision a qualification that is not there.

GLEESON CJ: How in a practical sense did that issue arise in the present case?

MR BESANKO: Evidence was led, your Honour, that the establishment of a petrol filling station on the same land as the Woolworths supermarket and an arrangement that your Honours may be familiar with of, in effect, getting a discount if a certain quantity of goods are purchased, the increase in the retailing in the Woolworths supermarket and the effect that that would have on the existing supermarkets in a city centre zone. We say, your Honour, that effectively his Honour the Chief Justice was with us all the way except at the very end he said, "In applying that principle you don't take into competitive effect, if the sort of development you are talking about isn't one that needs to go into a city centre zone". So he has read something into the provisions of the development plan. Your Honour, the other provision that is relevant on the findings of the - - -

HAYNE J: The words "integrity of the centre hierarchy" are not, as Mr Justice Tadgell would have said, perspicuously clear, are they?

MR BESANKO: No, they are not.

HAYNE J: No.

MR BESANKO: One can think of a number of other words that one might use - - -

HAYNE J: I am glad you can, Mr Besanko.

MR BESANKO: Yes, your Honour, not with much confidence, but whether it is referring to the soundness of the centre or the viability of the centre or some other matter.

HAYNE J: But that is the point, is it not, that you have a piece of legislative drafting cast in the terms it is. Why should the construction of that not rest upon what the Full Court of the Supreme Court of this State says? Why should we become involved in that?

MR BESANKO: Your Honour, it is an important matter from the point of view of the operation of these development plans in South Australia.

GLEESON CJ: But I am right in thinking, am I not, that the local legislature would respond to decisions of the court here if the decisions did not represent the legislative intent, then that would bring about a response, depending on the political situation?

MR BESANKO: Yes, your Honour.

GLEESON CJ: That is the way it would work, is it not?

MR BESANKO: Yes, it is. Your Honours, before I leave that matter could I just identify the other provision. It is the provision at the bottom of page 21 where there is reference made to "Shopping development" and your Honours will see in paragraph (a) the reference to not hindering "the development or function of any business centre". So that is the other area where there is arguably a question of construction involved.

GLEESON CJ: Could you just go back to the point that Chief Justice Doyle made that you showed us earlier?

MR BESANKO: Yes, your Honour. Page 28, paragraph 45. At line 14, your Honour, his Honour said:

Such considerations are not involved if there is nothing about the proposed development to indicate that it should be located in a centre zone rather than where proposed.

Now, with great respect, that is where the fork in the road is. That is where his Honour said - - -

GLEESON CJ: But this is all about, whatever it means precisely, compromising the integrity of the centre hierarchy.

MR BESANKO: Yes.

GLEESON CJ: And Chief Justice Doyle takes the view that there is no question of compromising the integrity of the centre hierarchy if there is nothing about the proposed development to indicate that it should be located in a centre zone rather than where proposed.

MR BESANKO: To a point, your Honour, that is correct, although what he is saying is that one does not look at questions of turnover and competitive effect. They do not enter into the concept of whether the integrity is compromised if it is something that is appropriate outside a city centre zone. So it is in that specific context that he makes that conclusion.

Your Honours, the other matter that I need to address was the question of the evidence. Two judges of the Full Court said that the evidence was of little probative value. His Honour Justice Lander said that the evidence was not admissible. Our submissions in relation to that matter, your Honour, are that one needs to go back to see on what basis the Environment Court dealt with the evidence. Your Honours will see that on page 7, paragraph 12 of the reasons of the Environment Court. After setting out, in effect, what the evidence was, the court said at line 30:

It would be mere speculation on our part to determine that Woolworths turnover would increase by 10-15% directly as a result of the operation of the proposed petrol filling station.

Then if I might drop down, your Honours, line 39:

There are too many variables for us to accept the simple calculations put by the appellant -

and then, your Honours, at line 41:

How far in the future are we to project?

And so on.

The Environment Court did not reject the evidence because of its particular nature in this case. They rejected the evidence because they were, in effect, wary of any evidence about effect on turnover and competitive effect generally. That is made clear when one sees the court posing questions like, "How far in the future are we to project" By contrast, when the matter was in the Full Court, the Full Court was not prepared to rely on the evidence, or found that it was of little probative value, because of the nature of the evidence itself, because it involved hearsay and various other things.

We respectfully submit that, in effect, the Environment Court, the evidence having been found by the Full Court, subject to the point of principle that I dealt with, to be relevant evidence, may well have approached the evidence in a different way. It may well have said, "No, the evidence in those circumstances is evidence that we can rely on", because it was not its concern about the particular evidence; it was a concern about turnover evidence generally. So we submit that the difficulties with the evidence in this particular case would not prevent the point of general principle being raised. If the Court pleases.

GLEESON CJ: We do not need to hear you, Mr Hayes.

The Court is of the view that this case does not raise an issue suitable for the grant of special leave and the application is refused with costs.

AT 9.46 AM THE MATTER WAS CONCLUDED