Netstar Pty Ltd v Caloundra City Council [2008] HCATrans 74 (8 February 2008)

Last Updated: 12 February 2008

[2008] HCATrans 074

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B54 of 2007

B e t w e e n -

NETSTAR PTY LTD

Applicant

and

CALOUNDRA CITY COUNCIL

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 8 FEBRUARY 2008, AT 10.09 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR P.G. BICKFORD, for the applicant. (instructed by Blake Dawson Lawyers)

MR D.R. GORE, QC: If the Court pleases, I appear with my learned friend, MR R.S. LITSTER, for the respondent. (instructed by DLA Phillips Fox Lawyers)

KIRBY J: Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. Your Honours, we recognise immediately this case is a one-off in the sense that we are not able to demonstrate that there are other more or less similar factual cases, the resolution of which will be determined by the decision in this case, but may I say two things about that. The first is that that is a situation which fairly commonly obtains when the effect of later general legislation on earlier specific provisions is under consideration. That is the first thing. The second thing is that it is a circumstance which very much emphasises the injustice of the result in the particular case. Your Honours, could I go to the underlying circumstances for just a - - -

KIRBY J: It has resonances, does it not, of Chang v Laidley Shire Council where there were, at least in my view, injustices in the result, that there was not a solution in the language of the legislation.

MR JACKSON: Your Honour, what has happened in this case is that at the time – there are really two times in question, one is in 1984. At that time town planning in the Landsborough Shire, which was later incorporated into the respondent, was regulated by an interim development by-law and there was a provision in the Local Government Act which is set out at the bottom of page 4 of the application book in paragraph [12] which allowed the Governor-in-Council to permit a development which was not consistent with the interim development by-law.

KIRBY J: You did not own the land at this stage, did you?

MR JACKSON: No, our predecessor is entitled, your Honour, yes.

KIRBY J: Yes.

MR JACKSON: Your Honour will see also from the provisions set out at page 7 at the top at about line 5:

Where the Governor in Council approves of a recommendation by the Minister, it shall be lawful, in accordance with that approval, to use the land –

et cetera. Now, your Honours, there was not, if I could put it this way, an untrammelled power to override local authority decisions, then there was provision for advertisements, objections and so on before such an order-in-council could be made. Your Honours will see that set out in our authorities at tab 8. I do not think I need to go to them. The effect of the approval was to make it lawful to do what was the subject of the application and the approval in this case which is set out in Justice Jerrard’s reasons at page 29, paragraph [5] was for “60 townhouses” on the land, albeit subject to many conditions in relation to subdivision and so on.

Your Honours, the Council has sought to say that by reason of a number of pieces of delegated legislation, or legislation, since the making of the order-in-council, none of which has ever made specific reference to the order-in-council, the order-in-council has been impliedly repealed. That is so notwithstanding two things. One, as I said, the absence of specific reference to it in the repealing legislation and delegated legislation, on the one hand, and on the other hand the provisions of the Acts Interpretation Act.

HAYNE J: Is it that the order-in-council is repealed or that the statutory support for it has gone?

MR JACKSON: The statutory support for it has gone, your Honour, yes. It is a question, of course, of the – because the order-in-council had, on the face of it, a continuing operation, and that seems to be the effect of the decisions, for it to continue, of course, one has to look to, I suppose, one or other or of two things. One is whether the repealing legislation demonstrated an intention that it would, in getting rid of the underlying legislation, bring to an end this provision – the provision underlying it, or, on the other hand, whether it was preserved by the Acts Interpretation Act provisions.

Your Honours, we have succeeded in surmounting all the supposed barriers except, as we would put it, the last, namely, the enactment of the Integrated Planning Act 1997 and our learned friends would seem to seek to add that the 1987 town planning scheme, although not held to have had that effect in the Court of Appeal, was also a barrier. Could I deal with those in reverse order and deal with the earlier in time, the 1987 town planning scheme, first.

That planning scheme was typical of town planning schemes of the nature then popular. It had a zoning scheme which, if applicable to the land, would, amongst other things, have prohibited the use of the land for units, but there was no difficulty in reading the two pieces of delegated legislation together. The 1987 scheme zoned all land, including our land, but the 1984 order-in-council should be treated as a limited and specific qualification to that general proposition, that is, the town planning scheme applied to the land, except to the extent that the particular use, the subject of the order-in-council was permitted.

Your Honours, the other feature of the 1987 order-in-council was a matter referred to by Justice Jerrard at page 29, paragraph [7]. May I take your Honours to that for a moment. Your Honours will see that in paragraph [7] in the last five lines on the page his Honour said:

The appellant company did not rely at all on an argument that the use approved by the Order-in-Council could be regarded as an existing lawful non-conforming use, as defined in the 1987 town planning scheme, and the respondent Council did not argue that if it was such an existing non-conforming use, it had been discontinued or had lapsed.

That appears to be referred to by Justice Holmes at page 36, paragraph [32]. Your Honours, could I just say in relation to that, the reason, no doubt, why neither party relied on what the Court of Appeal seemed to take some, albeit passing interest, in was that they regarded the view of those provisions taken by the primary judge as being correct and that appears at page 5, paragraph [17], namely – and your Honours will see the last five lines of that paragraph – that the provisions only applied to approvals, et cetera, which had been given by a council rather than pursuant by the Governor-in-Council. Your Honours, I mention that because it seems to be an issue that our learned friends seek to rely on.

So far as the second and later point in time is concerned, the Court of Appeal found against us for the reasons which appear at page 34 in paragraphs [24] and following. It comes down, ultimately, to reliance on the provisions of the Integrated Planning Act and your Honours will see, if one comes to the ultimate conclusion by Justice Jerrard in paragraph [31] on page 36, that he referred to:

The extensive transitional provisions made by the IPA, and the clear intent that that Act regulate development –

and so on. The provisions of the Integrated Planning Act on which reliance was placed simply did not deal at all with this issue. Certainly, provision was made for planning, generally, for the future. Certainly, too, some provision was made for the future status of some earlier approvals, but that was all. Your Honours, if I could pick up the phrase at the start of paragraph [31] of the Court of Appeal’s reasons, “The extensive transitional provisions” to which reference is made there – consist of two - to which I will take your Honours in a moment. They are sections 6.1.23 and 6.1.51, which are behind tab 12 in our materials.

Your Honours will see page 322, numbered at the top - it is, I think, four or five pages from the back of that book – which sets out section 6.1.23. Could I just say about it, your Honours, if one looks through the provisions there they say nothing about approvals of this kind. I do not think I need to go right through that section. It does not touch these approvals. The other provision which is said relied on is 6.1.51 and your Honours will see that commencing at page 343. It refers in 6.1.51(1) to, “any orders in council made under” a different provision of the Local Government Act and provisions made under the City of Brisbane Town Planning Act.

Then, your Honours, to put it shortly, again it does not touch these provisions. The position, in our submission, is accurately summarised, we would say, at page 50 of the application book in our written submissions commencing at paragraph 19. May I endeavour to put what is there, your Honours, in very short form. The first is that a factor was that there was no provision for compensation that would be applicable to us in the 1997 Act.

The second aspect, your Honours, is that the case was one of earlier very specific legislative provision and later a general legislative provision and we would rely on the proposition set out in paragraphs 23 and 24 of our written submissions. The third matter we would submit, your Honours, is that there was really no basis for the kind of “cover the field” test that was adopted by the Court of Appeal. Your Honours will see that referred to in our submissions in paragraphs 30 and 31.

Finally, your Honours, the case did appear to be one to which section 20A of the Acts Interpretation Act which is behind – leave aside the ordinary provisions of section 20, but in addition, it was a case to which section 20A of the Acts Interpretation Act appeared to be directly apposite. May I in that regard take your Honours to tab 9 of our materials. Your Honours will see in section 20 of the Acts Interpretation Act set out at page 21 and your Honours will see the relatively familiar provisions of section 20(2)(c). Could I pause to say, our rights were held to be rights for the purposes of the Act, and then, also, the remaining provision of section 20, but then one comes to section 20A and your Honours will see that section 20A(2) says that:

If an Act –

(a) declares a thing for a saving or transitional purpose –

and then one goes over to the concluding words at the top of the next page:

the declaratory or validating effect of the Act does not end merely because of the repeal of the Act.

We would refer your Honours to the example (a) which is given. The way in which that works out in the particular case is set out in our written submissions at page 53 in paragraphs 35 to 37.

HAYNE J: Can I just understand that a little better. Before the Integrated Planning Act you had the Planning and Environment Act, is that right?

MR JACKSON: Yes, your Honour.

HAYNE J: What was it under the Planning and Environment Act that preserved the effect of the order-in-council?

MR JACKSON: It is section 8.10.8, your Honour.

HAYNE J: It preserved the effect of what had occurred before?

MR JACKSON: Yes, your Honour, it did.

HAYNE J: Why was that preservation by the Planning and Environment Act not caught by 6.1.23(d) of the Integrated Planning Act, an approval by whatever name called given under a former planning scheme?

MR JACKSON: It was not an approval given under the scheme, your Honour.

HAYNE J: The former planning scheme is not sufficiently broad to encompass that?

MR JACKSON: In our submission, no, your Honour. One does have the situation, then, as we have sought to make out in our paragraphs 35 and following and that is that the saving effect of it was one where it was held there was no limit of time for the continuance of it. Your Honours see in paragraph 36 of our written submissions whilst it continued to have force and effect as if it were an approval under that Act it was not an approval under a scheme.

Your Honours, I appreciate one is getting close to it, but it was not an approval under a scheme. So, your Honours, there was no time limit and the approval was not a continuing approval in the terms of the definitions which are in section 6.1.1 and so on.

KIEFEL J: But can you have a town planning approval under the Act itself when it says “an approval under the Act”?

MR JACKSON: I am sorry, which Act is your Honour speaking of?

KIEFEL J: Under the P & E Act, when it speaks of “an approval under the Act” as if it were an approval under the Act. You do not actually have a system of approvals under the legislation itself. They must be under the scheme, must they not?

MR JACKSON: Under a scheme, yes, in the ordinary course of events. I do not know that what your Honour says is quite right in relation to all possible approvals, but, your Honour - - -

KIEFEL J: Is there a provision under that Act which provides for approvals of this kind so that one could see that it could be likened to an approval under the Act.

MR JACKSON: Your Honour, that was an argument that really failed in the Court of Appeal. If I could just take your Honours back to the Court of Appeal’s reasons. Your Honour, could I preface what I am about to say by saying an argument against us in the Court of Appeal – which had prevailed before the primary judge - was that the provisions of the Planning and Environment Act were such to catch up our approval – if I could use that word again – but to treat it as one which, because of the operation of that, was to be treated as if given by – in effect by a scheme under that Act and thus coming to an end.

That was held not to be the case and your Honours will see in paragraph [20], for example, at page 33 a conclusion on this point. Could I just say that the point your Honour Justice Hayne raised with me is not one that appears to be relied on at all by the Court of Appeal, relevantly. I mention that in passing. Could I also say that section 20A is one of our limbs, but it is a tree that has.....tree trunks but has a number of trunks. Your Honours, those are our submissions.

KIRBY J: Yes, thank you. Mr Gore, I did not know that so soon we would have the pleasure of revisiting the Integrated Planning Act. Could you tell me what is your answer to Mr Jackson’s contention that Justice Jerrard’s reference to the extensive transitional provisions when you actually examine them do not apply? How do you answer that?

MR GORE: Your Honour, can I answer that by going back one step. Justice Jerrard correctly recognised that insofar as this issue was concerned, what I will for convenience call the IPA issue, the question for the court was whether or not section 20 of the Acts Interpretation Act had been displaced because one really starts with the proposition that the Integrated Planning Act is intended to control all development once it came into force. One knows from the reasons for judgment that if the planning scheme then in force for the land was applicable that a development application would be necessary because it was assessable development.

So, on the face of it, the 60 townhouses required a development approval under the Integrated Planning Act. Now, the applicant’s answer to that ordinary position was to say, “We are not covered by the Integrated Planning Act because we have the benefit of an accrued right for the purposes of section 20 of the Acts Interpretation Act”. The Court of Appeal held that it was an accrued right so that left us the only question whether section 20 had been displaced by the legislation that, in effect, was displacing the right, the Integrated Planning Act.

In determining that question the Court of Appeal applied orthodox principle, it applied a decision of this Court in deciding that a sufficient contrary intention was manifested. That intention was revealed by the various provisions that Justice Jerrard referred to and to which our learned friends have referred.

KIRBY J: I understand all that, but one of the matters that his Honour referred to was, in paragraph [31], “The extensive transitional provisions” and when you actually plunge down into the pleasure of actually examining those provisions the suggestion is that they do not bite.

MR GORE: They do not bite and that is the problem for the applicant. The proper view to take about those provisions is that the legislature was careful to seek to identify the range of approvals which it intended to protect.

KIRBY J: So, your point is that the effect as it states in its heading is to give continuing effect to approvals and unless they could get into the transitional provisions then they do not survive merely by the application of the Acts Interpretation Act or the general common law principles against abolition of accrued rights?

MR GORE: That is correct, your Honour.

KIRBY J: They have to find their source and bloodstream within the Integrated Planning Act itself.

MR GORE: That is correct, your Honour, otherwise the Act might just as well have left that section out. If anything that could be said to be an accrued right before the Integrated Planning Act came into force survived the Act, 6.1.23 was quite pointless.

KIRBY J: Yes. We do not need to hear more from you. Thank you, Mr Gore.

MR GORE: Thank you, your Honour.

KIRBY J: Anything in reply, Mr Jackson?

MR JACKSON: I just wanted to say, your Honours, that the provisions of section 6.1.23 deal with a large number of cases and they deal with particular kinds of things. They simply do not touch on this which was something sui generis, and is simply never dealt with by it, but take the view that the transitional provisions were intending to cover something which just does not fall within it is a large step.

KIRBY J: Thank you.

The essential case for the applicant in this matter was comparatively simple. The applicant has, since September 1996, become the registered proprietor of land near Caloundra in Queensland. In 1984 the Governor of Queensland in-Council approved the development of the land, then owned by the predecessor in title to the applicant, for up to 60 townhouses.

The development did not proceed. Since then there have been a series of planning schemes under legislation of the Parliament of Queensland. The complexity and contestability of Queensland planning law was recently examined by this Court in Chang v Laidley Shire Council [2007] HCA 37; (2007) 81 ALJR 1598 to which the Court of Appeal referred. That decision demonstrates that each case depends very much on the particularities of the applicable law.

The Court of Appeal of Queensland held that the provisions of the supervening planning law applicable to the case were exhaustive in their operation and excluded the continued operation of prior approvals. In a disarming submission, Mr Jackson accepted that his case was a one-off and had no analogy in other facts in other circumstances in other cases.

We are not convinced that error has been shown in the approach of the Court of Appeal of Queensland or that the interests of justice require this Court’s intervention. Special leave is therefore refused.

Do you ask for costs?

MR GORE: Yes, if the Court pleases.

KIRBY J: It must be refused, with costs.

AT 10.34 AM THE MATTER WAS CONCLUDED