Chang & Anor v Laidley Shire Council [2006] HCATrans 670 (8 December 2006)

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Chang & Anor v Laidley Shire Council [2006] HCATrans 670 (8 December 2006)

Last Updated: 12 December 2006

[2006] HCATrans 670

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B17 of 2006

B e t w e e n -

SHU-LING CHANG

First Applicant

TAI-HSING CHEN

Second Applicant

and

LAIDLEY SHIRE COUNCIL

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 DECEMBER 2006, AT 12.30 PM

Copyright in the High Court of Australia

MR D.R. GORE, QC: May it please the Court, I appear for the applicants. (instructed by Robert Milne Legal)

MR P.J. LYONS, QC: May it please the Court, I appear for the respondent. (instructed by Connor O’Meara)

KIRBY J: Yes, Mr Gore.

MR GORE: Thank you, your Honour. Your Honours, this is a case where - - -

KIRBY J: In the old days, we would have said this is a very particular matter of a Queensland legislation, but we do not dare say that any more since Justice Callinan came. We have been reminded we are the supreme court of the whole of the country, so you have that running for you.

MR GORE: It was comforting to see his Honour walk through the door.

KIRBY J: Yes, I am sure.

CALLINAN J: Do not take anything for granted, Mr Gore.

MR GORE: I never do, your Honour.

KIRBY J: Press on, Mr Gore.

MR GORE: Your Honours, this is a case where there should be a grant of special leave because of the general importance of the issue. The issue was whether any potential right which the applicants had for statutory compensation under the Integrated Planning Act 1997 was of sufficient substance as to be preserved by section 20 of the Acts Interpretation Act 1954 (Qld) following an amendment - - -

CALLINAN J: Mr Gore, I do not want to interrupt you, but we have read it and I think we understand the point. Let me tell you what my problem is. For a start, I have difficulty with this maze of legislation, but I am not too sure that there is not an express provision which, of course, would override the Acts Interpretation Act. Is there not some express provision which gives the Council the right to refuse to entertain the application in question? Is there some legislative provision that does that?

MR GORE: Is your Honour referring to the provision that deals with what is a properly made application?

CALLINAN J: Yes, exactly.

MR GORE: Yes.

CALLINAN J: Where do I find that provision in the material?

MR GORE: In the reasons of Justice Keane, your Honour will find that provision in paragraph [41] at page 35 of the application book. It is subsection 3.2.1(7), with paragraph (f) being the provision of concern. It was inserted in the 2004 amendments.

CALLINAN J: Now, that provision, depending upon its meaning, is a later provision than the Acts Interpretation provision and, of course, section 20 of the Acts Interpretation Act is merely a provision of an Act which can be repealed, amended or overridden, as it were, by any subsequent express provision; is that not right?

MR GORE: That is so, your Honour. The Acts Interpretation Act in section 4 contemplates that a contrary intention can appear but, your Honour, I submit that it does not. One of the indicators that a contrary intention does not appear is that nowhere in any of these 2004 amendments was there any specific reference to the special type of application involved here. That application is a development application (superseded planning scheme) and it is a special creature of the Integrated Planning Act and it is my submission that the absence of any reference in any of the amendments – and they were quite substantial amendments in 2004 – to that special kind of application is some demonstration that the draftsperson overlooked that special type of application.

CALLINAN J: Well, let me just ask you this, because I am not unsympathetic to your client’s position, Mr Gore – do not think that I am not – because it does seem counterintuitive that the planning authority can completely wipe out your right, or the right that you might otherwise have for compensation, simply by refusing to entertain an application which appears to be regularly made. But if you look at subsection (7), which is reproduced at 35, I do not see how you take yourself out of the position that the development for which the application was made – and it was made for a development – was one that would not have been allowed under the regulatory provisions or, rather, I think appropriately, is it not, the draft regulatory provisions?

MR GORE: Yes, your Honour, the latter.

CALLINAN J: If you had made the application, the development, if it were to be approved – well, it could not be approved because it was contrary to the draft regulatory provisions. Is there some problem about that or do I misunderstand that?

MR GORE: Your Honour, if section 3.2.1 is looked at in isolation, that is the answer that you would come to, but you do need to look at section 20 of the Acts Interpretation Act as well. Your Honour is correct in saying earlier that section 20 can be displaced by contrary intention, but the contrary intention has to be manifest and, as Mr Justice McPherson recognised in the Resort Management Services Case, one of the main cases that we rely upon, section 20 is there to ensure that valuable rights are not inadvertently repealed by statute. That is really - - -

CALLINAN J: You are pushing at an open door so far as the principle is concerned. I think you have to get down to the specifics of the Act to show us why (f) does not cover this - - -

MR GORE: In isolation, as I say - - -

CALLINAN J: What else do we look at in the Act of which it forms part to make good your point? You cannot just look at the Acts Interpretation Act. You have to look at the rest of the IPA, Integrated Planning Act, have you not?

MR GORE: Your Honour, that is so, but – and I am repeating myself – there is no reference in the new part that was inserted to deal with this concept of the South East Queensland Regional Plan of – there is no recognition of the development application (superseded planning scheme). So it is the silence, your Honour, it is the silence of all of those complex provisions on this special kind of application which - - -

CALLINAN J: But is there a silence? Why does not the – what is it – the South East Queensland Plan - - -

MR GORE: Regional Plan.

CALLINAN J: - - - - why is it not a draft regulatory provision? Is that not what it is? It is either a regulatory provision or a draft regulatory provision, is it not?

MR GORE: Your Honour, I am not quarrelling with the fact that there was a draft regulatory provision which, read in isolation, would prevent the particular development that was proposed. That provision, your Honour, is at page 37 of the application book in paragraph [53] and the key provision is section 4(2)(c) which, in effect, prohibits reconfiguration of a lot below a lot area of 100 hectares, and the site area itself was only about 16 hectares. So that is the prohibition that had to be faced.

CALLINAN J: The reason for silence elsewhere in the IPA might be that the matter is already fully covered by 3.2.1(7). That is why there may be silence, because it is covered by that provision, (7).

MR GORE: Your Honour, might I say with all respect that that is the approach that Justice Keane took below, focusing only on the language of the amendment provision without considering separately – and it is a separate question – whether before that amendment Act was passed there was already in existence a section 20 right. I would like to be able to address that question, your Honour, to see why, when we come back to your Honour’s concern about the 2004 amendments, that they should not stand in the path of the conclusion that we contend for. Can I begin, your Honour, by referring to the decision of this Court of Western Australian Planning Commission v Temwood Holdings, which is case No 16 in our bundle, where there is some helpful dicta - - -

CALLINAN J: I hope you are not referring to me in my judgment there, because I was in dissent, was I not?

MR GORE: Your Honour, I will give you a reference, but the helpful dicta is in the judgments of the majority, but nothing your Honour said is at odds with the relevant dicta. This case is also now reported in the Commonwealth Law Reports in [2004] HCA 63; 221 CLR 30. Your Honours have the Australian Law Journal Report version, so I will refer to the paragraph numbers. If your Honours go to the joint judgment of Justices Gummow and Hayne, which is at page 430 of the Australian Law Journal Report, beginning at paragraph [76].

What I will seek to demonstrate in a moment is that the statutory scheme that the Court was relevantly concerned with here is very similar to the statutory scheme for compensation in section 5.4.2 of the Integrated Planning Act which lies at the heart of the applicants’ complaint. It was not, unfortunately, just in one place in this Western Australia case, but as quickly as I can I will take your Honours to it. In paragraph [81] there was a primary provision, section 11 of the Town Planning Act, which conferred in conventional terms a right compensation for injurious affection, and then in paragraph [82] reference was made to the Metropolitan Region Act which applied to the relevant land. The relevant land was south of Perth and it involved a foreshore reserve. As their Honours went on to say at page 431, at about B, that:

s 11 of the Town Planning Act conditions the entitlement to obtain compensation upon the making of a claim within any time limited by the scheme in question.

Then reference is made to section 36. It is the key provision. Your Honours will see that it provides that where land is reserved for a public purpose, as it had been here, no compensation is payable for injurious affection until one of three things happens:

(a) the land is first sold following the date of the reservation; or

and this is where we have the analogy with section 5.4.2 –

(b) the responsible authority refuses an application made under the Scheme for permission to carry out development on the land, or –

and this is the third option –

grants permission to carry out development on the land subject to conditions that are unacceptable to the applicant.

Now, the issue that arose in Temwood Holdings was whether or not Temwood Holdings had a pre-existing right to compensation under those provisions which the Planning Commission had sought to deny by imposing a condition requiring the transfer of the foreshore reserve without compensation. The majority took the view that there was, in fact, no right to compensation. In arriving at that view, their Honours Justices Gummow and Hayne, at page 434, nevertheless touched on the point that is of comfort to me. They began at the top of the left-hand column with the heading “Right to Compensation?” and identified it as the threshold issue. In paragraph [96], beginning with the second sentence, their Honours said:

Had Temwood been so affected –

Temwood was not the owner at the time of the reservation back in 1963, your Honours –

in the necessary sense, its entitlement to compensation under the legislation would have been qualified by the restrictions imposed as to the time of payment by s 36(3) –

which we just looked at –

of the Metropolitan Region Act and by s 36(6) as to the amount of compensation. Upon that hypothesis, in the interval between the entitlement to compensation arising and the compensation becoming payable, Temwood may well have enjoyed under the legislation what, in the event of a repeal, s 37(1)(c) of the Interpretation Act 1984 (WA) would save as an accrued, acquired or established right –

So the provision is in relevantly identical terms to ours and it is that dicta which supports my submission that section 20 applies here. A similar view was expressed by Justice McHugh, the other member of the majority, relevantly at page 421.

CALLINAN J: What do you say your right was, Mr Gore, in precise terms?

MR GORE: The right to make and to have assessed the development application (superseded planning scheme). Your Honour, what is important to understand about this is that it is not a run of the mill application where, in the language of the old cases, there is a mere hope or expectation the discretion might be exercised in your favour. This is a statutory scheme which is designed to create one of two alternative rights. You are guaranteed of getting one of them, in effect.

When there is an adverse change in the scheme, under the old days, all you got was compensation. Under the IPA scheme the Council has an election to either restore your development rights under the old scheme or to assess your development application under the new scheme, which almost inevitably will be refused, and that will trigger the right to compensation, but it is not a situation where you are hoping for an outcome.

You know you are going to get one outcome or the other. They are alternative rights. They may be subject to the condition that the Council has to decide whether it is the old scheme or the new, but the cases recognise that the fact that a right is conditional does not take it outside the protection afforded by section 20.

CALLINAN J: No, it may affect the quantum but not the right, not the actual establishment of the right itself. It may affect the quantum of the compensation just precisely what the right is because that may involve some consideration of the merits of the application, but it says nothing about whether you have the right or not. It is in your favour, really.

MR GORE: I am not quite clear on your Honour’s question, I am sorry.

CALLINAN J: What I am saying is the right to make an application is itself a valuable right.

MR GORE: Absolutely.

CALLINAN J: Somebody in the marketplace would pay for that or a person might say, “Well, on a proper assessment I think it has only got a 20 per cent chance of succeeding but that 20 per cent chance is one for which I am prepared to pay something or some extra premium.”

MR GORE: This case is even stronger, your Honour, because to the extent that the cases say that provisions like section 20 are not there for enactments that the general public can avail themselves of, section 20 in this case is dealing with a specific category of persons, namely, only landowners whose land has been adversely affected by some change in the planning scheme. Only persons in that position have the potential to get the benefit of a development application (superseded planning scheme).

KIRBY J: Has the point the potential to affect many persons? Is this a matter which would have widespread significance or is it really confined to the peculiar circumstances of your client’s case and the supervening change in the planning law?

MR GORE: Your Honour, I give two responses to that. First, I am unable to point to any other individual that is in a similar position to my clients - - -

CALLINAN J: It covers the fastest growing region in Australia. We can take judicial notice of that – this plan.

MR GORE: Precisely, your Honour, and there were many planning schemes which were - - -

KIRBY J: Even if I do not have the judicial notice, I will have it topped up.

CALLINAN J: It is in the statistics compiled by the Bureau and this Court has often gone to them for some matters.

MR GORE: Otherwise, I will just give evidence from the Bar table, your Honour.

KIRBY J: Do not worry about that. We are very averse to that. However, it is evidence from the Bench we rely on.

MR GORE: Your Honour, my second response, though, is to say that the real reason why special leave should be granted in this case is because what this Court has to say about the scope of protection of section 20 will have application to all of the Interpretation Acts in Australia, including section 8 of the Commonwealth Act, because although your Honours are aware that there are decisions of this Court, for example, Esber, which speak of the protection of rights, even if they are inchoate or contingent, there still remains uncertainty as to the width of that protection and your Honours’ decision on this case will provide valuable guidance for the general - - -

KIRBY J: But surely only in the context of this particular legislation where you could not say anything of general significance that is going to affect every piece of legislation because this is what is in my mind a bit against you, that this is planning legislation, planning legislation is often delegated and sub-delegated, it is highly detailed, it is very particular and very specific and normally the requirements falling upon applications fall upon them in relation to the planning law from time to time because of this high particularity and specificity. Now, what is your answer to that?

MR GORE: My answer to that, your Honour, is that this case is about rights. As Justice Windeyer observed in Mathieson v Burton, for a provision like section 20 you are not talking about rights in a Hohfeldian sense, you are talking about them in some more general sense. The term “rights” is an elusive term. It is a difficult one to define. In Resort Management Services Justice Fryberg said that it would be unwise to exhaustively define it, but if this Court takes hold of this case this Court can provide guidance as to what is the ambit of the term “rights” in section 20 and it will not be confined in doing that by the intricacies of planning legislation. It is a more general question which is capable of general application to a whole range of statutory provisions, your Honour.

KIRBY J: Section 20 would have it counterparts throughout the Commonwealth.

MR GORE: It does, your Honour.

KIRBY J: Are there any important differences in the language which makes the Queensland Act a peculiar one in this respect or not?

MR GORE: Not in this respect, your Honour. In other respects there can be, but not in this respect.

CALLINAN J: On that point, Mr Gore, every other Acts Interpretation Act would have its analogue with section 4 - - -

MR GORE: That is so, your Honour.

CALLINAN J: That is the ultimate legal question. I think your first point in relation to general importance is better than your second.

MR GORE: Your Honour, my time is probably up, but with reference to the judgment of the Court of Appeal which commences at page 25 of the
application book, can I just take your Honours to the leading judgment of Justice Keane at page 43 where in paragraph - - -

KIRBY J: What page?

MR GORE: Page 43, your Honour. It is in those first two sentences of paragraph [72] that his Honour really disposes of the case adversely to the applicants, but by confining himself to an interpretation of the amendment provision and by failing to address the section 20 question, and that is my complaint.

KIRBY J: Yes, very well. Thank you.

MR GORE: Thank you, your Honour.

KIRBY J: Yes, Mr Lyons.

MR LYONS: May it please the Court, can I commence by making a submission that this does not raise a question of general importance. The circumstances were that prior to the commencement of the draft regulatory provisions this particular Council had adopted planning controls which were reflected in those regulatory provisions and it is said that the Council’s scheme gave rise to a right to claim compensation preserved by section 20. The intervention of the State Government would suggest that that was not a general approach taken by planning schemes throughout south-east Queensland and, accordingly, the prospect - - -

CALLINAN J: This is a major area though, is it not, a major area, Mr Lyons?

MR LYONS: Your Honour, south-east Queensland is the area affected by the South East Queensland Regional Plan, but the fact that the government thought it necessary to intervene would suggest that it was generally dissatisfied with the protections being provided in planning schemes. Laidley happens to have acted in advance of the regional plan and the draft regulatory provisions, but it is not likely that many other councils will have done so, so I would submit it is not likely to be a point of general application.

The second submission I wish to make is that, in fact, this is not a case where there are inchoate or contingent rights to claim compensation on which section 20 could operate. That arises out of section 5.4.2 of the Act which identifies - - -

KIRBY J: Where do we find that, conveniently?

MR LYONS: In our bundle, your Honours, at tab 8.

KIRBY J: Yes.

MR LYONS: The applicants rely on paragraph (a) but paragraphs (b), (c) and (d) also had to be satisfied before the entitlement to compensation arose, and none of them had. In particular, paragraph (c) required that the application be assessed having regard to the current scheme. A council had an opportunity to decide whether the application would be assessed under the previous or under the current scheme. That decision was purely discretionary and it had to be made before the entitlement arose, and it had not happened here - - -

CALLINAN J: It had not happened because the Council acted like the Emperor of China and the Emperor of China knew that he was about to receive a letter which he did not want to receive because it would have had distasteful comments. It would have cost him something. He said he refused to receive it. Now, it may be that the Council can do that, but that is what the Council did. It cut them off at the knees by simply refusing in any way to accept the application; is that not right?

MR LYONS: Your Honour is quite right, and it did so because of the provisions that your Honour has raised in section 3.2.1 which I will come to in a moment. I am simply trying to say that even before the question arose about accepting or rejecting the application, because there were these subsequent steps, there was not even an inchoate right to - - -

CALLINAN J: There would never be those subsequent steps once the Council said “We won’t receive it”.

MR LYONS: That is true.

CALLINAN J: It may be – I do not know – there may be an argument that the right, if I can put it this way – and I am using “right” in inverted commas – the “right” in question might be a right to have an application to make an application to the Council to have the Council decide whether it would receive that application or not. Do you follow what I mean?

MR LYONS: I do, your Honour.

CALLINAN J: There may be two steps. The first may be, arguably, a right of some value. It may not be very much but it may be worth something.

MR LYONS: True, your Honour, but accepting that, though, the effect of section 3.2.1(7)(f) was to take away that right because it provided the application would not be a properly made application if the development the subject of it would be contrary to the regulatory provisions and if - - -

CALLINAN J: If that is so, why give – the Council did not have any discretion at all, is that what you are saying?

MR LYONS: Effectively, your Honour, yes, because it was given a discretion in subsection (8) in some circumstances to receive an application which is not properly made. Does the Court have section 3.2.1? It is in the applicants’ bundle at tab 23. Subsection (7) identifies:

An application is a properly made application if –

...

(f) the development would not be contrary to the regulatory provisions or the draft regulatory provisions.

Subsection (8) then provides:

The assessment manager may refuse to receive an application that is not a properly made application.

Subsection (9), however, provides that:

If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.

But (10) excludes from the discretion in (9) an application which, in paragraph (b), is for development contrary to the draft regulatory provisions. So to answer your Honour Justice Callinan’s question, the discretion to receive was taken away. It was obviously intended to operate in respect of all applications made after the commencement of the amendments which introduced these two subsections.

CALLINAN J: That means by draft amendment they could defeat everybody who had not already applied. They could defeat everybody’s applications and also their opportunity of applying and also any right to compensation that might otherwise have arisen as a result of that.

MR LYONS: A strong outcome but plainly intended by the language - - -

CALLINAN J: It is a very draconian measure, is it not, Mr Lyons, really?

MR LYONS: Your Honour, I would have to accept that, but this legislation, that is, the Integrated Planning and Other Legislation Amendment Act, includes a series of draconian measures without any provision for compensation, not just this. That is the general tenor of the legislation.

KIRBY J: That might be so, but one does not normally, at least sitting here as a Judge in this Court, want to encourage the draconian measures, and where there are legitimate legal arguments, that is a matter that the Court often likes to have a look at.

MR LYONS: One accepts that and that is why I commenced with the proposition that, putting aside the effect of section 3.2.1, there was no accrued right in any event. That follows from section 5.4.2 which I have taken the Court to briefly.

CALLINAN J: In a sense, that is another way of saying that there is an attempt which may or may not have succeeded to take away retrospectively what might otherwise have been an accrued right, which makes the legislation – and it may be quite effective to do this, but it is really effective in two senses: that it purports to act retrospectively and it also purports to deny the right to compensation. There are lots of statements about how cautiously courts approach those sorts of provisions. It may have two undesirable but nonetheless effective aspects.

MR LYONS: That is so. That simply highlights the point that the first question is whether there is an inchoate or contingent right and because of the subsequent provisions of section 5.4.2 which involve later discretionary decisions, that is, one to assess the application under the previous scheme or under the changed scheme and the second whether to approve or reject the application, the rights - - -

CALLINAN J: It may be another difficulty of interpretation – it may or may not be; it may be my problem in not understanding the legislation properly – but in a sense the provisions contradict themselves. It would appear that at one point there seems to be a discretion and then at the other that discretion is entirely taken away, which might suggest that the first provision is totally unnecessary. Now, I am not saying that is necessarily the effect but - -

MR LYONS: Is your Honour referring to section 3.2.1?

CALLINAN J: Yes, (7) and then what you read us. I do not have (8) and (9) in front of me, but I think it was (9) that you were reading.

MR LYONS: I am sorry, your Honours, I thought your Honours had - - -

CALLINAN J: No, it would be here somewhere. When I was speaking, Mr Lyons, I meant.

MR LYONS: Tab 23 in the applicants’ book, your Honour. I hope it is set out in full. The way the section - - -

CALLINAN J: It is not in my tab 23.

KIRBY J: It is not in mine either at tab 23.

CALLINAN J: I have the old Local Government Act.

KIRBY J: 1936.

MR LYONS: Sorry, tab 23, I might have misstated the number.

CALLINAN J: No, it is not 23, Mr Lyons. Tab 23 is the old Local Government Act.

MR LYONS: Tab 20 I am told, your Honours. I have a book which is differently arranged.

CALLINAN J: Right, yes.

MR LYONS: Is that of more assistance?

KIRBY J: Yes, that is better.

CALLINAN J: Yes, thank you.

KIRBY J: What clause?

MR LYONS: Start with subsection (7). There are a series of characteristics which identify a properly made application and paragraph (f) is that which is relevant.

CALLINAN J: Sorry, this is - - -

MR LYONS: Section 3.2.1

KIRBY J: You have to give us – 3.1, is that what we are looking at?

MR LYONS: No, at the top of the page 95 - - -

KIRBY J: You carry this round on your heart but I have never had the pleasure before.

CALLINAN J: Is it page 95?

MR LYONS: Page 95. Your Honours should then be in section 3.2.1.

KIRBY J: Yes, we have that.

MR LYONS: Subsection (7) identifies an application is a properly made application if paragraphs (a) through to (f) are satisfied. Paragraph (f) is the one of relevance.

KIRBY J: You say that where there is a supervening change in the planning law that, therefore, (f) is not from that moment engaged or, rather, it is engaged to disqualify the application from being a properly made application.

MR LYONS: Yes. In a case where a development application (superseded planning scheme) is lodged for development contrary to the draft regulatory provisions (f) is engaged and has the effect the application is not properly made. Subsection (8) does not particularly matter. Subsection (9) does, on page 96 - - -

CALLINAN J: That is what I do not understand. Do not (10)(b) and (9) contradict each other?

MR LYONS: Subsection (10) qualifies (9).

CALLINAN J: I am not too sure that it does not go further, Mr Lyons. You see, (9) says that an assessment manager may accept an application that is not a properly made application. Then (10) says that (9) does not apply “if the development would be contrary to the regulatory provisions”, but you already have in there (7)(f). It just seems to me that - - -

MR LYONS: The scheme is that section (7) identifies a properly made application. Subsection (8) says:

The assessment manager may refuse to receive an application that is not a properly made application.

Subsection (9) gives a discretion to accept a not properly made application. It can be not properly made because it fails to meet any of the matters set out in subsection (7). Subsection (10) simply excludes from the discretion a case where the development is contrary to the draft regulatory provisions. The sections have to be read together and their overall effect, in my submission, is relatively clear. It is that there is no discretion to accept an application as a properly made application where the development is contrary to the draft regulatory provisions. It is a drafting style which really requires the four subsections to be read together.

CALLINAN J: I do not doubt that.

MR LYONS: To answer your Honour Justice Callinan’s original question, it is not really a question of contradiction; it is a question of really reading the subsections together to see their combined effect because that is the way the draftsperson set them out.

CALLINAN J: Well, is it duplicity perhaps? Why do you need (10)(b) when you have (7)(f)? And (9) is really a futility because everything that is within (7) – to qualify to be within (7) would give you a qualification to have at least the opportunity of acceptance by an assessment manager, but yet that is taken away by (10)(b).

MR LYONS: Your Honour, (9) permits an acceptance where the application is not in the approved form, for example.

CALLINAN J: No, “not a properly made application”, a defined term. Subsection (7) defines it and it is conjunctive. All of the elements have to be present from (7).

MR LYONS: Yes.

CALLINAN J: So it is not a properly made application because it cannot satisfy (f); is that not right?

MR LYONS: That is this case, but there are other cases where (9) certainly has scope such as an application not made in the approved form. Subsection (9) certainly has scope. Its scope is simply cut down by (10) in two instances.

CALLINAN J: I see what you are saying. It is a very clumsy form of drafting, really, but anyway.

MR LYONS: I cannot comment on that. Your Honour, it is simply the submission that, in fact, it is clear that there is no scope for the Council to accept as a properly made application a development application which is for development contrary to the draft regulatory planning. If that is the case, it follows that the rights your Honour raised with me, that is, a right to make an application of this kind, is intended to be deprived of any real effect by the amendments made in 2004 prior to the applicants’ application.

CALLINAN J: I can see the argument plainly and it is a pity they did not say it exactly that way, Mr Lyons. You have said it much more clearly than the legislation does, and I suppose that is the argument. You have the drafting device that could have been used. It could have been a slight elaboration upon precisely what you have just put to us.

MR LYONS: Thank you, your Honour. The outcome simply must be that there was no right to make an application which could survive the amendments which made the draft regulatory provisions effective, in my submission.

KIRBY J: Yes, thank you.

MR LYONS: Thank you, your Honours.

KIRBY J: Yes, Mr Gore.

MR GORE: Thank you, your Honour. Your Honours, there has been some focus on section 3.2.1(7)(f) and your Honours will see that it is concerned only with the development. This case is, from a practical perspective at least, concerned with compensation. It is a case where the applicants really do not want the development at all, but they want to retain their entitlement to compensation. That can occur here on the applicants’ construction of these provisions and upon the - - -

KIRBY J: That is true, but the other construction is the one that has found favour so far, that you have to make a properly made application, which is a statutory expression, and that in the circumstances that have occurred here you could not and did not.

CALLINAN J: Yes, you could never have done under (9).

MR GORE: That is so, your Honour, if these provisions are held to display contrary intention insofar as section 20 is concerned. Your Honours, several of the cases say that in deciding whether a provision like section 20 applies to protect a person in the position of the applicants’ here from the effect of an amendment or repeal is to ask whether the outcome will be manifestly unjust if the amendment or repeal applied. It is my submission that the outcome here would be manifestly unjust and, indeed, to uphold our submissions does not lead to any injustice from the Council’s perspective because it can elect under section 3.2.5 to assess my clients’ application under the new scheme. It can then inevitably refuse the application and maintain the integrity of both the draft regional plan and its planning scheme, but it will at the same time trigger and preserve my clients’ entitlement to compensation. The development will not happen, but that is not a reason why the compensation should not be paid. Thank you.

KIRBY J: Yes, thank you. The Court will adjourn briefly to consider the disposition of this application.

AT 1.10 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.13 PM:

KIRBY J: There will be a grant of special leave in the matter of Chang. I assume, Mr Gore, that this would be a one day or less matter before the Court?

MR GORE: Yes, your Honour.

KIRBY J: Yes, very well. The matter may be called over for directions but, if so, you will be given notification of that.

AT 1.14 PM THE MATTER WAS CONCLUDED