Re the City Area Lease Ordinance 1936 and Re Axiom Pty Limited [1986] ACTSC 24 (21 April 1986)

SUPREME COURT OF THE ACT

IN THE MATTER OF THE CITY AREA LEASE ORDINANCE 1936
AND IN THE MATTER OF AXIOM PTY. LIMITED
S.C. No. 665 of 1985
Statutes - Courts and Judges - Building Control and Town Planning

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1), Kelly(2) and Gallop(3) JJ.

CATCHWORDS

Statutes - City Area Leases Ordinance 1936 - S.11A - application for variation of purpose clause of lease from Commonwealth - applications for leave to object - whether applicant entitled to raise objections based on town planning principles.

Statutes - National Capital Development Commission Act, 1957 - whether provisions of Act override provisions of Ordinance - principles applicable.

Courts & Judges - jurisdiction of Supreme Court under s.11A of Ordinance - whether limited by provisions of Act.

Building Control and Town Planning - whether Supreme Court may consider town planning principles on application under s.11A of Ordinance.

The Law of Land Development, 1967, Ch.6 and especially p 187.

Kent v. Johnson (1973) 21 FLR 177 at p 185-186

In the matter of an application by Morpath Pty. Limited (unreported 1 March 1985)

In the matter of an application by Atherane Pty. Limited (unreported 23 August 1985)

Re Bailey's Application (1966) 10 FLR 175

In the matter of an application by Warmac Dickson Pty. Ltd. (unreported, 10 October 1969)

Re Lauder's Application (1968) 13 FLR 238

Delegated Legislation in Australia and New Zealand (1977)

R v. Connell; Ex parte the Hetton Bellbird Collieries Ltd. [1944] HCA 42; (1944) 69 CLR 407 at p 430

Goodwin v. Phillips [1908] HCA 55; (1908) 7 CLR 1 at p 7

Federal Capital Commission v. Laristan Building & Investment Co. Pty. Ltd. [1929] HCA 36; (1929) 42 CLR 582

Total Oil Products (Aust.) Ltd. v. Bankstown Municipal Council (1964) 10 LGRA 366 at p.368

Kent v. Johnson (1973) 21 FLR 177 at p.185

Canberra Labor Club Ltd. v. Hodgman (1982) 47 ALR 781

Kent v. Cavanagh (1973) 1 ACTR 43 p 52

Anisminic Ltd. v. Foreign Compensation Commission [1968] UKHL 6; (1969) 2 AC 147 at p.182

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223 at p 230

Fawcett Properties Ltd. v. Buckingham C.C. (1961) AC 636

Mixnam's Properties Ltd. v. Chertsey U.D.C. (1965) AC 735 at pp 753 and 764

HEARING

CANBERRA
21:4:1986

ORDER

That the application by A.C.T. Youth Accommodation Group Incorporated for leave to be heard in opposition to the application for variation made by Axiom Pty. Limited on 1 July 1985 be dismissed.

That leave to be heard in opposition to the application for variation be granted to all 16 of the remaining objectors.

That the further hearing of the said application for variation be remitted to Kelly J.

That any question of costs of the reference under s.8AB(3) of the A.C.T. Supreme Court Act 1933 be reserved to Kelly J.

DECISION

I have read the draft judgment of Kelly J. and I agree with and adopt what his Honour has to say about the background and legislative history relevant to this matter. I also agree that the provisions of the City Area Leases Ordinance 1936 have to be read subject to the National Capital Development Commission Act 1957 insofar as any provisions of the Ordinance are inconsistent with the provisions of the Act.

2. As to the background I would make one or two additional comments relevant to the powers of the Commission. I acknowledge that I have drawn heavily on the Report of the Senate Select Committee on the Development of Canberra, published September 1955. The Australian Capital Territory in general and the City of Canberra in particular are free from the controls of statutory planning schemes such as are in force in other parts of Australia: see Wilcox The Law of Land Development, 1967, Ch. 6 and especially p. 187. The general plan of Walter Burley Griffin with such modifications as had been approved up to that time received legislative recognition in S. 4 of the Seat of Government (Administration) Act 1924 and in the subsequent publication in the Gazette on 19 November 1925 of the plan of layout of the City of Canberra and its environs. There was power in the Minister to modify or vary the plan of layout but only after the proposed change was notified in the Gazette and laid before both Houses of Parliament. The plan of layout has been varied or modified many times (and continues to receive legislative recognition: see below). The plan of layout however is not a planning scheme "but is merely a pattern of roadways and water areas". It is lacking in provision for land-use zoning or other indicia of town-planning principles: Senate Report 1955, paras. 39, 466. Conceivably, the Federal Capital Commission established by the Seat of Government (Administration) Act 1924 exercised some town-planning role pursuant to its powers under S. 14 of that Act but it had no charter to permit any use of land which was inconsistent with the plan of layout. When the Federal Capital Commission was abolished by the Seat of Government (Administration) Act 1930, a sub-section was added to S. 7 of the 1924 Act (which now survives as S. 12A of the Seat of Government (Administration) Act 1910). That prohibited the Minister from departing from or doing anything inconsistent with the plan of layout as it might be modified or varied from time to time. In the following years, and in particular at the time of the commencement of the City Area Leases Ordinance 1936, such planning of Canberra as took place was carried out by administrative decision within government departments. In 1938 a National Capital Planning and Development Committee, an advisory body, was established by ordinance. In 1957 when the advisory Committee was abolished and the Commission was established by the Act with the declared functions of undertaking and carrying out the planning development and construction of the national capital, the Commission, like the Minister, was expressly prohibited from departing from or doing anything inconsistent with the plan of layout as modified or varied according to law. The plan of layout remains the blue print for the layout of Canberra subject to modification or variation under the supervision of the national Parliament.

3. In my view the effect of the Act is not to exclude from this Court's consideration, in relation to an objection to an application to vary the purposes clause of a City Area Lease, all matters of "town planning". The Act is explicit in charging the Commission with certain functions and these are "to undertake and carry out the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth", subject to the parameters of the plan of layout. It is not the function of the Court to enter the field of undertaking and carrying out those functions. The Court has its own function to perform under the Ordinance; that function is the determination of applications to vary the provisions of leases in relation to the purposes for which the land in the City Area, subject to lease, may be used. The City Area is defined as such area as may be specified by the Minister pursuant to S. 4 of the Ordinance. It is not necessarily coextensive with the area of the City of Canberra as shown in the plan of layout. Whether in any particular case a consideration of principles applicable to the control of urban development ("town planning") will involve the Court in the functions allotted to the Commission will depend upon the circumstances of that case.

4. In Kent v. Johnson (1973) 21 FLR 177 at p 185-186 Smithers J. said in a passage with which I would respectfully agree:

"It is necessary therefore to interpret the Act. It

is entitled an Act to establish a commission 'for
the development of the City of Canberra as the
National Capital'. The words 'as the National
Capital' indicate that the object was not merely
town planning but the development of a city as
something special, something to be created by
reference to the concept of a national capital. To
me that means a capital city with its buildings,
roads, gardens and the rest arranged and designed
so far as possible to reflect and express what is
best in the national history, its government, its
art, science, aspirations and ideals.

The notion that the functions merely of developing
roads and drainage and sewerage and the like would
be conferred in terms so evocative hardly seems
likely.

It appears to me that something much broader was
intended.

If mere provision of roads, drainage and other
services is not the only function of the N.C.D.C.,
it is difficult to find anything in the Act
indicating that the strong words of s. 11 are to be
read down in some way so that they do not have their
natural meaning.

In their natural meaning they deal with a subject
matter comprising an activity allied to an
objective. The activity is the planning,
development and construction of the City of Canberra
and the objective is to achieve a city with the
character of the national capital of Australia.

The objective reflected the requirement of the
Constitution to establish the Seat of Government in
the Capital Territory, a lofty objective extending
far beyond the mere provision of roads, drainage and
the like.

If such an objective is to be achieved by performing
the functions of undertaking and carrying out
planning, developing and construction it appears to
me that the subject matter of the functions
conferred on the N.C.D.C. is logically and
practically incapable of division, incapable of
being shared by that body with other bodies. The
objective demands unified direction.

It appears to me to be incompatible with the notion
of conferring on a designated authority the
functions of undertaking and carrying out the
planning, development and construction of the city
as the national capital that other bodies may also
so plan, develop and construct. I am of opinion
therefore that in conferring these functions upon
the N.C.D.C. Parliament was conferring them upon the
N.C.D.C., to the exclusion of other bodies. It is
an inevitable consequence of this that the Act
impliedly forbids other authorities to undertake and
carry out the functions conferred on the N.C.D.C."

5. It is noteworthy that whilst his Honour expressed the opinion that the Commission's powers extend beyond the provision of roads, drainage and the like, he said nothing about whether decisions on those restricted matters, where they did not affect the character of the national capital, might properly be made by bodies other than the Commission.

6. The application to which objection is sought to be taken in the present case seeks a change of use of the land at Block 1 Section 24 in the Division of Turner. The question whether the proposed change from residential use to a limited form of commercial use is relevant to the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth is to be determined in my view by reference to the history, nature and prior use of the land. It is relevant to consider any decisions already taken by the Commission which affect the land. That block of land is at the intersection of Moore and Mackay Streets, Turner, one block west of Northbourne Avenue and one block north of Barry Drive, close to what might be described as the northern gateway to the civic centre. It is within the area of the original plan of layout of 1925. The lease from the Crown to the applicant provides that the land is to be used for residential purposes only. The change in purpose sought by the applicant lessee is to use the land for offices, professional suites, car parking and a single unit caretaker's flat with a proviso that the gross floor area of the building or buildings shall not exceed 1,202 sq. metres, that car parking for at least 36 cars will be provided and the building or buildings shall not exceed three storeys above ground level.

7. The land is on the evidence the subject of Policy and Development plans published by the Commission. That these plans may lack direct legislative force does not affect the issue. I assume that they do not involve any modification or variation of the plan of layout of the City of Canberra. The preamble to those plans states:

"'The provisions of the Policy and Development plans
outlined overleaf are designed to permit change of
use and redevelopment to occur in a manner which
retains the existing high visual quality of this
part of Turner and minimises adverse environmental
impacts on existing residential amenity'".

8. The preamble to the plans further states:

"'The Commission considers that there is a lack of
suitable accommodation in Canberra for small and
medium scale commercial uses, particularly close to
Civic Centre. The area to which these Policy and
Development plans relate is considered to be well
located to accommodate this type of development.'"

9. In the Policy plan the Commission states:

"'The main objective is to provide opportunities for
the development close to Civic of small-medium scale
offices while ensuring the new development on Blocks
1 to 9 of Section 43 is related in form and function
to the existing medium scale commercial nature of
Northbourne Avenue.'"

10. The Commission's Policy and Development plans evince an intention to exercise the functions of undertaking and carrying out the planning and development of the City of Canberra as the National Capital of the Commonwealth by controlling the change of use and redevelopment of land, including the land in question, in the Turner area, presumably to provide some sort of medium density buffer zone between the high rise commercial development that has taken place, and is continuing to take place, in the civic centre, and the existing low density residential areas adjoining. Those plans are concerned with the aesthetic and orderly planning and development of land in a key area on the edge of the commercial and civic centre of Canberra. To borrow the words of Smithers J. the Commission's plans as they affect the land in question touch on "the character of the national capital of Australia". The plans are not confined to what might be considered as "municipal" matters, and it is not necessary to determine what the effect would be if they were so confined.

11. The objection of the Youth Accommodation Group is to the use of the land for anything but residential purposes. For this Court to consider that objection would involve it in a consideration of matters which are the subject of decisions of the Commission which relate to the planning and development of the city as the National Capital and which are, in my view, appropriately the province of the Commission. For that reason the Youth Accommodation Group should be refused leave to be heard in opposition to the application.

12. Although the Minister is a party to the application for variation and the Minister was given leave to put submissions at this stage relating to the powers of the Court and the powers of the Commission, the Commission itself has not sought leave to be heard as to the extent of its powers. On the question of leave being granted to the various objectors to be heard in opposition to the application, it is conceded by the applicant that all objectors apart from the Youth Accommodation Group have raised objections which are not concerned with matters falling within the exclusive function of the Commission. In the light of that concession and without further consideration, I would grant leave to the remaining objectors to be heard in opposition to the application. The application itself should be remitted to the judge at first instance for determination.

The lease from the Commonwealth of the land known as Block 1 Section 24 Division of Turner in the Australian Capital Territory (the land) provides that it is to be used for residential purposes only. Axiom Pty. Limited (Axiom) was registered as lessee of the land on 29 March 1985. By notice of motion dated 1 July 1985 and filed on that day it sought an order under s. 11A (s. 11A) of the City Area Leases Ordinance 1936 (the Ordinance) that the lease might be varied to provide that the land could be used for one or more of the following purposes:-

(a) offices;

(b) professional suites;

(c) car parking;

(d) single unit caretaker's flat not exceeding
120 square metres in area.

Axiom accepted that should the change be authorised the floor area of any building or buildings erected on the land should not exceed 1202 square metres, that on site car parking for a minimum of 36 cars should be provided and that no building or buildings erected on the land should exceed three storeys above ground level.

2. Section 24 is L-shaped. Block 1 is the northernmost part of it and is bounded on the north by McKay Street, on the west by McKay Lane, on the south by Block 2, Section 24 and on the east by Moore Street. It is within 500 metres of the new Canberra General Post Office situated three blocks to the south. Moore Street lies parallel to and one block west of Northbourne Avenue, the principal northern entrance to the City of Canberra.

3. Sub-sections (1) and (2) of s. 11A read:-

"(1) Notwithstanding anything contained in
this Ordinance, the Supreme Court of the
Australian Capital Territory may, subject to
this section, on the application of the
lessee (in this section referred to as the
'application for variation'), vary any
provision, covenant or condition of a lease
in relation to the purpose for which the land
subject to the lease may be used.

(2) No such variation shall be made -

(a) unless the Court is satisfied that there
are such circumstances existing as in
the opinion of the Court make it
desirable to vary the provision,
covenant or condition in order that the
reasonable user of the land should not
be impeded; or

(b) if, not later than seven days before the
day for hearing named in the notice of
motion filed by the applicant in
pursuance of this section, a certificate
is filed by the Minister with the
Registrar of the Court stating that, in
his opinion, the variation sought would
be repugnant to the principles for the
time being governing the construction
and development of the City of
Canberra."

4. The return date for the hearing of the notice of motion was 30 August 1985. A copy of the notice was published in the Canberra Times, a newspaper circulating in the Australian Capital Territory, on 2 July and on 23 July a copy was published in the Commonwealth of Australia Gazette. Service of the notice and of the affidavit in support of it was duly effected on the Minister. The procedural requirements of s. 11A were therefore met.

5. The Minister did not file within the time prescribed by s. 11A(2)(b) a certificate stating that, in his opinion, the variations sought would be repugnant to the principles for the time being governing the construction and development of the City of Canberra. It follows that there was no opposition by the executive to the variation proposed. Whether it necessarily follows that the Minister considered that the variation would not be repugnant to the principles for the time being governing the construction and development of the City of Canberra is another question to which I shall return.

6. S. 11A(6) provides that:

"Any person who, within twenty-one days after
the publication of the notice of motion in
the Gazette -

(a) files with the Registrar of the Court
notice of his intention to oppose the
application for variation stating the
grounds of his opposition; and

(b) serves on the applicant for variation a
copy of such notice of intention,

shall, with the leave of the Court, be
entitled, either personally or by his counsel
or solicitor, to be heard in opposition to
the application for variation and to examine
and cross-examine witnesses."

7. On 9 July 1985, Judith Ward, acting on her own behalf and giving her address as 40 Moore Street, Turner, gave notice of intention to oppose the application. On 30 July 1985, Mr Hampton Cooper, solicitor, filed notices of intention to oppose on behalf of each of 15 opponents. The address of one of those opponents, Peter Frederick Hopner, is also given as 40 Moore Street, Turner. The 15 notices of opposition were, mutatis mutandis, identical in form. Fifteen of those 16 opponents, including Ms Ward, live close and nine are tenants of the land shown as their address. The 16th is the President of the Ukrainian Autocephalic Orthodox Church, Parish of St. Nicholas, the Parish Church of which stands in McKay Gardens, Turner a little distance from the land.

8. On 9 August 1985 A.C.T. Youth Accommodation Group Incorporated (A.C.T. Youth) duly gave notice of intention to oppose Axiom's application.

9. When that application came to be dealt with on 30 August 1985, all who had given notice of intention to oppose it sought leave under s. 11A(6) to be heard in opposition to it. Mr Arthur of counsel for Axiom then submitted that many of the grounds for objection particularised by the objectors in their notices of intention to oppose could not properly be considered by the Court because they raised questions of town planning which, so the submission went, could not be considered by the Court because of the provisions of the National Capital Development Commission Act 1957 (the Act). Mr Arthur submitted that the National Capital Development Commission (the Commission) was the only authority in which was vested the function of the planning which necessarily included the town planning of the City of Canberra. It followed, he said, that no construction of s. 11A which empowered the Court to have regard to town planning considerations when dealing with an application for variation under the section was available. He conceded that some of the grounds particularised in the notices of intention to oppose filed by all objectors but A.C.T. Youth were valid.

10. The concession was rightly made and therefore the 16 objectors other than A.C.T. Youth are entitled, without further argument and with the leave of the Court, to be heard in opposition to Axiom's application and to examine and cross-examine witnesses. Whether, in the circumstances, all should be granted leave to be heard in opposition is a matter for the Court to consider in the exercise of its discretion.

11. Since s. 11A(6) does not in any way restrict the grounds on which opposition to an application for variation may be made, it follows that when leave is granted it cannot be on the condition that the grounds of opposition be limited. The only limitations which may be imposed on the evidence sought to be led in opposition to the application for variation are those which the ordinary rules of evidence, particularly those relating to relevance, require. For this reason it is undesirable to decide now which of the several grounds particularised are valid. As is generally the case, the relevance of evidence going to particular grounds ought to be considered at the time of and not in advance of the substantive hearing.

12. When Mr Arthur made his submission on 30 August 1985 concerning the inconsistency between the Act and s. 11A, Mr T. Brennan of counsel for A.C.T. Youth conceded that if the submission was valid there would be no grounds available for his client's application and said that it would be withdrawn.

13. After hearing argument in which counsel for the Minister elected to take no part, I reserved my decision but on 6 September 1985 ordered, pursuant to s. 8AB (3) of the Australian Capital Territory Supreme Court Act 1933, that the jurisdiction of the Court in relation to the applications for leave to object to Axiom's application in opposition should be referred to a bench of three judges. We have had the benefit of submissions made by leave by counsel for the Minister.

14. A.C.T. Youth has opposed applications by Morpath Pty. Limited to vary the purposes clauses of the leases of Blocks 8 and 9, Section 43, Division of Turner. The grounds of its opposition were substantially the same as those in its notice with which the Court is dealing. The applications for variation by Morpath Pty. Limited were heard by Gallop J who has reserved judgment. It should be noted that when an objector to whom leave had been granted to oppose the application by Morpath Pty. Limited for variation of the purposes clause of the lease of Block 8, Section 43, Division of Turner discontinued its opposition, A.C.T. Youth, which had already been granted leave to oppose the concurrent application in respect of Block 9, was granted leave by Gallop J to appear in effect in its stead. There was no opposition to the grant of that leave.

15. When I granted leave to oppose the applications by Morpath Pty. Limited (In the matter of an application by Morpath Pty. Limited unreported, 1 March 1985) I held that the Court might take town planning factors into account in dealing with an application under s. 11A. A similar view was adopted by Miles CJ in In the matter of an application by Atherane Pty. Limited (unreported 23 August 1985). Miles CJ made reference to the judgments of Eggleston J in Re Bailey's Application (1966) 10 FLR 175 and of Kerr J (as he then was) in In the matter of an application by Warmac Dickson Pty. Ltd. (unreported, 10 October 1969). In the earlier case Eggleston J said at p.177:-

"In particular, the provisions of the
Ordinance in relation to objections by the
Minister and other persons, and the whole
concept of planning in relation to purpose
which is embodied in these provisions,
require, I think, that a broad interpretation
should be given to the power to vary, hedged
around as it is with safeguards designed to
avoid undesirable changes."

16. In In re Warmac Dickson Pty. Ltd., Kerr J rejected the view that the power of the Court under s.11A did not include "any element of town planning". He said at p 755 of the transcript of proceedings:-

"There is no doubt that the restrictive
purposes in Crown Leases in Canberra are used
by the planning authorities to enable overall
planning of the City Area to be undertaken."

Later in the course of his judgment (at p.773 of the transcript), Kerr J said:-

"An issue was raised in the case as to
whether the proposed variation would be
consistent with proper town planning
principles. I find that the use contemplated
by the variation is a reasonable one and that
it will not conflict with sound planning
principles. It will not injure the amenity
of the area or be in conflict with the use to
which land is put by adjoining users. The
repairing and servicing of goods and vehicles
is in line with the use of the surrounding
land and there is no planning principle
standing in the way of extending the use to
cover the storage and distribution of goods
provided that noxious activities and panel
beating are excluded and provided that the
sale of goods by retail is excluded."

17. This Court has thus taken a consistent view that in dealing with applications under s.11A for variation of the purposes clause of a Crown lease the Court may take town planning into account. A similar view has been taken by the Supreme Court of the Northern Territory: Re Lauder's Application (1968) 13 FLR 238, a decision of Blackburn J when a Judge of that Court. He considered in that case a provision, s.12 of the Darwin Town Area Leases Ordinance 1947-1967 (N.T.), which he described at p.240 as being in almost the same terms as s.11A.

18. The consistent view taken by this Court that s.11A permits the Court to consider town planning in deciding whether an application to vary a purposes clause in a Crown lease may be allowed may not lightly be departed from.

19. By the end of the hearing it had become common ground that some element at least of town planning might be taken into account by the Court in dealing with an application under s.11A. The question at issue is the extent to which that town planning may be taken into account. It may be posed as three alternatives. These are:-

(a) Is the inquiry into which the Court may enter on
an opposed application under s.11A effectively an
inquiry de novo into all aspects of the
Commission's plan for the area in question
including the land in respect of which the
variation is sought?;

(b) Does the Act restrict the inquiry so that it is
concerned only with those aspects of town planning
in relation to the land which may properly be
dealt with, the validity of the change in planning
made by the Commission in respect of the area in
question being unassailable? or

(c) Is the Commission's plan, even though generally
not to be challenged, subject to review by the
Court if it be shown that, on a fair view of the
relevant circumstances, the Commission has failed
or refused to take into account one or more
critically relevant factors?

20. What the Court has to decide has to be borne steadily in mind. It is to determine whether the reasonable user of the land is being impeded. But in making that determination the Court has to consider whether the proposed change of user is "repugnant to the principles for the time being governing the construction and development of the City of Canberra". The fact that the Minister has not filed a certificate under s. 11A(2) does not mean that he has decided that the proposed change of user is consistent with those principles. It means only, I think, that the Minister has left to the Court, as ancillary to its determination of the principal issue, the question whether the proposed variation in fact accords with the principles referred to in sub-paragraph (b) of s. 11A(2).

21. The Act and s. 11A continue to co-exist and consistently with principle the amplest interpretation ought to be given to both expressions of legislative intention.

22. When expanding his basic proposition, counsel for Axiom submitted that any construction of s. 11A which permitted the Court to take town planning principles into account was wrong because it failed to take into account the relevant provisions of the Act. Those provisions, he submitted, vested in the Commission and in the Commission only the functions of undertaking and carrying out the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth. Since that was the evident intention of the Act and in particular of s. 11(1) and since the Act was an Act of the Parliament of the Commonwealth which covered the relevant field, it was not permissible so to construe any part of the Ordinance, which is subordinate or delegated legislation, that it conflicted with the plain intendment of the Act.

23. It was the first time, so far as the Court is aware, that any such submission was made in respect of an application under s. 11A.

24. In support of his submission, counsel for Axiom referred to a statement made by Professor Pearce in his work Delegated Legislation in Australia and New Zealand (1977). The statement (para. 422) reads:-

"Test of covering the field. The best test
of covering the field in relation to
delegated legislation can perhaps be stated
by paraphrasing the words of Dixon J in
Victoria v. The Commonwealth (1937) 58
CLR at 630 relating to inconsistency under
s 109: when delegated legislation, if valid,
would alter, impair, or detract from the
operation of an Act, then to that extent it
is invalid. Moreover, where it would appear,
from the terms, the nature or the subject
matter of an Act, that it was intended as a
complete statement of the law governing a
particular matter or set of rights and
duties, then for delegated legislation to
regulate or apply to the same matter or
relation is regarded as a detraction from the
full operation of the Act and so as
inconsistent."

Counsel went on to quote the learned author's views on consistency (para. 420).

25. The passage from the judgment of Sir Owen Dixon reads:-

"Moreover, if it appears from the terms, the
nature or the subject matter of a Federal
enactment that it was intended as a complete
statement of the law governing a particular
matter or set of rights and duties, then for
a State law to regulate or apply to the same
matter or relation is regarded as a
detraction from the full operation of the
Commonwealth law and so is inconsistent."

26. Mr Arthur submitted also that any discretion which the Court might exercise under s. 11A was limited to those considerations properly to be taken into account upon the true construction of the Ordinance having regard to the provisions of the Act. He referred again to Professor Pearce's work, para. 387, wherein reference is made to R. v. Connell; Ex parte The Hetton Bellbird Collieries Ltd. [1944] HCA 42; (1944) 69 CLR 407, where at p 430 Latham CJ said:-

"A person acting under a statutory power
cannot confer power upon himself by
misconstruing the statute which is the source
of his power."

27. The Ordinance is delegated legislation. It was made under the power granted by s. 12(1) of the Seat of Government (Administration) Act 1910 which provides that the Governor-General may make Ordinances for the peace, order and good government of the (Australian Capital) Territory. But the relevant sub-sections of s. 11A have been in existence since 1936 and the Act was passed in 1957. It follows that if the appellant's submission is to succeed it must be on the basis that the Act has impliedly effected a repeal of so much of s. 11A as would permit this Court to take into account general town planning principles. The principle of interpretation involved is that later Acts repeal earlier inconsistent Acts. If a later enactment purports to cover the field inconsistent provisions in a prior enactment must be held to be impliedly repealed. If, therefore, the Act confides to the Commission alone the functions of undertaking and carrying out the planning, development and construction of the City of Canberra, any earlier subordinate or delegated legislation by which those functions were in whole or in part confided to another authority, including this Court, must be taken to have been impliedly repealed. Goodwin v. Phillips [1908] HCA 55; (1908) 7 CLR 1, at p 7 and Federal Capital Commission v. Laristan Building & Investment Co. Pty. Ltd. [1929] HCA 36; (1929) 42 CLR 582.

28. The relevant sections of the Act are as follows:-

"11(1) The functions of the Commission are to
undertake and carry out the planning,
development and construction of the City of
Canberra as the National Capital of the
Commonwealth.

(2) For that purpose, the Commission is
empowered to provide, or arrange for the
provision of, within the Australian Capital
Territory, buildings, roads, bridges, works
for the supply of water or electricity,
sewerage or drainage works and other matters
and things for, or incidental to, that
purpose.

(3) The Commission has power to do all things
necessary or convenient to be done for or in
connexion with, or incidental to, the
performance of its functions and the exercise
of its powers.

(3A) The powers of the Commission under
sub-section (3) include such powers in
relation to matters affecting, or connected
with, the planning, development and
construction of the City of Canberra as are
expressed to be exercisable by the Commission
by, or by regulations under, an Ordinance in
force under the Seat of Government
(Administration) Act 1910-1959.

(4) The functions of the Commission do not
include the undertaking or carrying out of
construction upon land owned, or held under
lease, by a person other than the
Commonwealth, except -

(a) as incidental to the performance of its
functions in relation to land not so
owned or held, and with lawful
authority; or

(b) at the request of the owner or lessee of
the land and with the approval of the
Minister.

(5) The Commission shall not depart from, or
do anything inconsistent with, the plan of
lay-out of the City of Canberra and its
environs published in the Gazette on the
nineteenth day of November, One thousand nine
hundred and twenty-five, as modified or
varied, whether before or after the
commencement of this Act, in accordance with
law.

12.(1) The Commission shall keep the Minister
informed of the decisions of the Commission
with respect to matters of policy in relation
to the performance of its functions.

(2) In the event of a difference of opinion
between the Minister and the Commission as to
the policy which should be followed by the
Commission in relation to any matter, the
Minister and the Commission shall endeavour
to reach agreement.

(3) If the Minister and the Commission are
unable to reach agreement, the
Governor-General may, by order, determine the
policy to be adopted by the Commission in
relation to the matter.

(4) The Commission shall thereupon give
effect to the policy determined by the order
and shall, if the order so requires, continue
to give effect to that policy while the order
remains in operation.

13.(1) The Minister or the Minister of State
for Construction may arrange, in consultation
with the Commission, for the undertaking by
the Commission of any matter, being a matter
within the functions of the Commission that
is, at the date of commencement of this Act,
being dealt with by the Department of the
Capital Territory or the Department of
Construction, as the case may be, and, until
such a matter is undertaken by the Commission
in accordance with such an arrangement -

(a) the Commission is not required to
undertake that matter; and

(b) the Department of the Capital Territory
or the Department of Construction, as
the case may be, may continue to deal
with that matter.

(2) The Minister administering a Department
referred to in the last preceding sub-section
may transfer to the Commission the ownership
of, or may make available to the Commission,
any vehicles, machinery, plant or other
assets owned by the Commonwealth and used by
that Department, being assets required by the
Commission for the performance of its
functions.

(3) Where the Commonwealth, or a person
acting on behalf of the Commonwealth, is a
party to a contract with respect to a matter
within the functions of the Commission, the
Minister may, by instrument in writing,
direct that the Commission shall be
substituted for the Commonwealth or that
person as a party to that contract and
thereupon the Commission shall be deemed to
be so substituted."

No regulations appear to have been made under the Act.

29. In the context of s.11 of the Act "planning" may be defined as meaning the formulation of plans especially with reference to the controlled design of development of land and of buildings by which the City of Canberra is to be developed as the National Capital of the Commonwealth. The control of the design is essential to the planning function. One of the meanings to be attributed to the word "development" is, according to the Macquarie Dictionary, preparation of vacant land for building by the provision of roads, sewerage, etc. but in my view the word is not necessarily to be restricted to that meaning. It may mean, for example, "growth" or "expansion" and, having regard to the obvious intention of the Parliament, "development" ought not to be restricted to the narrower definition first given. "Construction" is used in its ordinary sense of building.

30. The fact that the planning, development and construction is to be of the City of Canberra as the National Capital of the Commonwealth indicates that an ample meaning is to be given to the words in question. "Planning" may no doubt be seen as going beyond the actual plans for the city. That this was the clear intention of Parliament appears from s.11(2) of the Act. For example, the provision within the Australian Capital Territory of works for the supply of water would have been seen in 1957 as requiring the planning and building of dams in remote areas of the Territory where it was most unlikely that anybody would ever live. Indeed the provision of dams for water supply would normally be expected to lead, in accordance with common practice, to the forbidding of residence within the catchment area of the dams.

31. The functions of the Commission are broadly stated in s.11(1) of the Act. Section 11(2) sets out the powers of the Commission which it may exercise for the purpose of carrying out its functions, while s.11(3) ensures that all things necessary or convenient for the exercise by the Commission of its powers in the carrying out of its functions may be done.

32. The Macquarie Dictionary defines "town planning" as the calculated control of urban physical conditions in the social interests of the community at large, while the Concise Oxford Dictionary defines it as the preparation of plans for regulated growth and improvement of towns. Although the Commission is largely concerned with urban planning, s.11(2) of the Act indicates, as already pointed out, that its concern is with a wider range of problems extending in some cases beyond any urban limits that might reasonably be expected to be set. It follows that where used in s.11 of the Act the word "planning" would, in the absence of reasons compelling a construction to the contrary, include, at the least, those aspects of town planning which are concerned with the planning and development of Canberra as the National Capital. It is not necessary in this case to decide whether every aspect of "town planning" is necessarily comprehended by the word "planning" so used.

33. The land is part of land in Turner which is the subject of Policy and Development plans (the Plans) published by the Commission and the preamble to which states:

"The provisions of the Policy and Development
plans outlined overleaf are designed to
permit change of use and redevelopment to
occur in a manner which retains the existing
high visual quality of this part of Turner
and minimises adverse environmental impacts
on existing residential amenity" and

"The Commission considers that there is a
lack of suitable accommodation in Canberra
for small and medium scale commercial uses,
particularly close to Civic Centre. The area
to which these Policy and Development plans
relate is considered to be well located to
accommodate this type of development."

34. The Plans show the Commission's intention to exercise a small part of its general functions in respect of the Turner area of which the land forms part.

35. Counsel for the Minister submitted that the Court should not interpret its function under s.11A so that an order made under the section would frustrate the planning policy of the Commission because contrary to that policy. He referred in some detail to the judgment of Kerr J in In the Matter of an Application by Warmac Dickson Pty. Ltd. to which I have earlier referred.

36. In that case the applicant was the lessee from the Commonwealth of land which, under the lease, could be used for the "wholesale storage and distribution of food". It had caused a building to be constructed on the land suitable for that purpose but had been unable to let it. It made application under s. 11A that the purposes clause might be varied by the substitution for the words quoted above of the words "the repairing and servicing of goods and vehicles (but not including panel beating) and for the storage and distribution of goods excluding any use of the land or building which causes injury to or prejudicially affects the amenity of the area . . . and excluding the sale of goods by retail".

37. Its first application under s. 11A was made on 27 August 1968. Five weeks later the Minister filed his certificate under s. 11A(2)(b). The applicant thereupon applied to the High Court for a writ of mandamus against the Minister but, for reasons that do not appear, the High Court dismissed the application. (1968) 42 ALJR 359.

38. In January 1969 the applicant filed a second application. The Minister did not file his certificate although in due course he opposed the application. Four companies and one private individual were given leave to oppose. The grounds relied upon by the companies were:-

"(a) The variation sought would be repugnant
to the principles for the time being
governing the construction and
development of the City of Canberra.

(b) The proposed variation would have the
result of making the land contained in
the said Crown Lease available for a
purpose for which adequate provision has
already been made in the Dickson
Commercial Centre.

(c) The proposed variation at a time which
is so soon after the commencement of the
term of the Lease would be contrary to
the objects sought to be attained by the
provisions of the City Area Leases
Ordinance and other Ordinances governing
the Leasehold tenure of land in the
Australian Capital Territory.

(d) The proposed variation would be contrary
to proper town planning principles.

(e) The proposed variation would injure the
amenities of the neighbourhood and would
create traffic hazards and traffic
congestion in the area in which the land
contained in the said lease is
situated."

39. The individual objector gave as his ground for objection that the granting of the variation sought would be contrary to the principles of the Leasehold system of land tenure in the Australian Capital Territory.

40. Since the Minister in that case did not file a certificate under s 11A(2)(b) it follows from what I have earlier said that the question of whether the variation sought would have been repugnant to the principles for the time being governing the construction and development of the City of Canberra was left to the Court to be decided as ancillary to the principal problem it faced.

41. Kerr J was therefore concerned directly with grounds of opposition which raised questions of town planning. Some of his findings of fact and statements as to the law applicable are, with respect, of considerable use in establishing the general ambit of grounds of opposition to an application for variation. (I set out in full significant passages from his judgment because it is unreported.) In addition to the passages from his judgment quoted earlier, I set out the following:-

"I proceed therefore to consider the case
upon the assumption that there was a bona
fide purchase of the land by Warmac with the
intention of developing it for the purpose
specified in the lease . . ." (at p.764 of the
transcript).

(His Honour had been dealing with an allegation that the applicant's directors had from the beginning never intended to develop the land for purposes within the existing purpose clause but always intended to get the purposes clause changed to permit wider uses.)

"It was suggested at various times during the
case that the change of purpose sought in the
present application would produce a higher
rent or a higher sale price but no
significant evidence was offered to show that
this really would be the case. In any event,
it does not seem to me to be of any great
importance even if it be true. Mr Justice
Eggleston in Bailey's case took the view that
the prospect of the land having a higher
value with a changed purpose is a matter to
be taken into account in favour of the
applicant rather than a matter to be weighed
against him when a change of purpose is being
considered. Whether this be so or not, I am
not satisfied that the applicant had
concealed motives and lacked bona fides in
its original purchase and development of the
land or that it is merely seeking to obtain a
a higher rent or sale price." (at p.768 of
the transcript.)

"An important element in planning in
Canberra, based upon purpose clauses, is for
the lessor to assume an obligation to build
within a year. This requirement may, after
the lease is executed, be relaxed by the
authorities by their agreement to delay as
happened in the present case, but the
essential point is that when the land is
released and the obligation to build is
assumed, both parties accept that the demand
for space exists then - not that in the
course of time population growth will bring
it about." (At p.770 of the transcript.)

"The suggestion was made that the trend in
wholesaling and retailing, which I have been
discussing, had already emerged before 1964
and has been continuing, not at an
accelerated rate, but steadily since then.
This continuance does not, it was argued,
amount to a change in circumstances to be now
taken into account. I do not accept this
approach." (At p.772 of the transcript.)

". . . The planning authorities were doubtless
right about making land available which could
be used for a milk depot but were in error if
they thought there was need or demand for
space for other wholesale storage and
distribution of food in Dickson. There is no
planning principle that error of this kind,
compounded by changing circumstances, should
be maintained and space kept vacant when it
can be put to productive use without
adversely affecting the neighbourhood or the
special position of other land users in the
vicinity, who are entitled to be protected
from changes which might threaten their
business position based upon a purpose
clause, which with other purpose clauses,
gave them planned protection in return for a
premium or price based, when paid, upon the
existence and integrity of the plan. I shall
refer to this later." (At p.772 of the
transcript.)

"One strong reason pressed in argument to the
contrary was that to permit the variation
sought so soon after the grant of the lease
would undermine the present system of
planning in Canberra because that system is
based upon ensuring development along planned
lines by the use of restrictive purpose
clauses in leases and it would cut down the
efficacy of the system to permit such an
early change of use. This was said to be the
case because persons bidding at auction
should do so on the basis that the purpose is
fixed firmly. No-one should be able to get a
lease which can acquire an early increased
value because he can soon get a variation of
the purposes clause. Other citizens of
Canberra, so it was argued, are entitled to
believe that the plan, embodied in the
purposes clauses, will be firm so that they
can conduct their businesses or activities
with clear knowledge of what will be going on
around them.

I agree that arguments of this kind have to
be weighed very carefully. The Court is not
a planning authority and would be loath to
permit a change of use which would change the
general character of an area which had been
planned by the authority whose duty it is to
supervise and direct the planning,
construction and development of the City of
Canberra. But it is clear here that no
change in the general character of the
neighbourhood is involved. (emphasis mine)

Mr Lyneham, who is in charge of planning
policy at the National Capital Development
Commission and whose recommendations go to
the Minister on policy relating to changed
purposes, made it quite clear that the
proposed new use was consistent with the
general character of the neighbourhood but
said he was not himself satisfied that there
had been a significant change in
circumstances since the original grant of the
lease, nor that the lessee had demonstrated
that the land could not be put to the use for
which the lease was granted. As a matter of
law, as I have already decided, it is not
necessary for the applicant to prove the
second of those two matters, but I should
certainly regard it as part of the
circumstances which have to be investigated
under section 11A(2)(a)." (At p.774 of the
transcript.)

42. Kerr J then quoted a passage from the judgment of Else-Mitchell J in Total Oil Products (Aust.) Ltd. v. Bankstown Municipal Council (1964) 10 LGRA 366, at p 368, which reads:

". . . the maintenance of the integrity of a
planning scheme requires that the purposes
and uses designated in the scheme or covered
by development consent should be regarded as
firmly fixed and not subject to flexible
adjustment at the option of the owner or
occupier of the land.

. . . it is the function of the responsible
authority to ensure that the principles of a
planning scheme are maintained by refusing
any consents which would generate pressure
which might be destructive of or cause
inroads upon the principles of the scheme
(cf. Sing v. Blacktown M.C. (1963) 9
LGRA 248)."

Kerr J went on to say:-

"Section 11A is in a sense part of the
planning scheme for the City of Canberra in
that the purpose clauses upon which the
planning scheme is erected may be varied by
the Court. Of course, the Court in
exercising its powers under section 11A would
regard the maintenance of the integrity of
the planning scheme as embodied in the
purposes clauses as being important and not
subject to flexible adjustment at the option
of the owner or occupier of the land and
would accept that the principles of the
planning scheme should be maintained. But
the planning authority itself considers that
changes in the purposes clauses are, in some
circumstances, permissible.

It adopts additional tests to those mentioned
in the Total Oil Products case but these
tests appear to be consistent with them. It
would not necessarily expect a lessee to let
premises at an economic loss. . . . Whether
loss or the prospect of loss should be
accepted depends on the circumstances of the
case. Doubtless it would be of little or no
significance if excessive sums had been
originally paid for the land or excessive
sums spent on development so as to make a
loss likely. . . . If an alternative purpose
would avoid loss without adversely affecting
the plan and if Mr Lyneham's points are
satisfied, then it is clear that the approval
of the variation would not be 'simply because
some more profitable development can be
undertaken' or 'merely for the purpose of
relieving a developer from the bonds of a
development chosen by him which has proved to
be uneconomic'." (At p.776 of the
transcript.)

43. The final passage from the judgment of Kerr J to which I wish to make reference appears at p.777 of the transcript of his judgment. There he said:-

"(Counsel for the objectors) relied on Total
Oil Products (Aust.) Ltd. v. Bankstown
Municipal Council (supra) for the proposition
that action should be avoided which would
tend to produce pressure on the authorities
to change purpose clauses, so as to be
destructive of or cause inroads upon the
principles of the planning scheme. This can
be accepted but the suggestion was that
others who cannot let space within existing
purpose clauses will exert pressure for wider
clauses if this case succeeds. Such persons
will not be able to succeed except on their
own merits and the present case would permit
success only if the merits indicated that the
National Capital Development Commission's own
policy on changed purpose clauses could be
satisfied."

44. When Kerr J referred to "the planning, construction and development of the City of Canberra", it seems clear that he was referring to the provisions of s.11 of the Act since s.11A(2)(b) is concerned only with the "principles for the time being governing the construction and development of the City of Canberra". But it is clear that his Honour was not then considering whether the provisions of the Act overrode any power which the Court may have to take into account principles of "town planning" so that when dealing with an application for variation under s.11A it might "permit a change which would change the general character of an area which had been planned by the authority whose duty it (was) to supervise and direct the planning, construction and development of the City of Canberra". When he referred to "the Authority" his Honour was plainly referring to the Commission. But the passage, when analysed, offers no support for the proposition that the Court has an independent town planning function to perform and the power to give effect to its own conclusions in that regard. His Honour found that the proposed variation was in accordance with the Commission's plan. In dealing with the application, therefore, he had no need to set aside or even to consider the setting aside of the Commission's plan or any part of it.

45. Analysis of what Kerr J said in the Warmac Dickson case shows that he considered that a number of matters may be taken into account by the Court in deciding an application under s.11A. These are:-

(a) The Court is not a planning authority.

(b) It is inappropriate for the Court to permit a
change of use which would change the general
character of an area as that character had been
planned by the Commission.

(c) The Court may take into account the bona fides of
an applicant for variation, bearing in mind,
however, that the principal question to be decided
is whether the reasonable user of the land is
being impeded for lack of a varied purposes
clause. Bona fides may be of particular
importance when the variation is sought by the
original grantee of the lease shortly after the
lease.

(d) The maintenance of the integrity of a planning
scheme requires that the purposes and users
designated in the scheme or covered by development
consent (in Canberra by the use of restrictive
purposes clauses) should be regarded as firmly
fixed and not subject to flexible adjustment at
the option of the owner or occupier of the land.

(e) Consents which would generate pressure which may
be destructive of or cause inroads upon the
principles of the scheme ought to be refused.

(f) Little or no significance should be attached to
the fact that excessive sums have been paid
originally for the grant of the lease or that
excessive sums had been spent on development so as
to make a loss likely. However, if an alternative
purpose clause would avoid loss without adversely
affecting the plan and if the proposed new user is
consistent with the general character of the
neighbourhood and it has been demonstrated that
the land cannot be put economically to the use for
which the lease was granted, approval of the
variation would not be "simply because some more
profitable development can be undertaken"; or
"merely for the purpose of relieving a developer
from the bonds of a development chosen by him
which has proved to be uneconomic".

(g) Appreciation in value of the land if the proposed
variation is made may be taken into account in
favour of the applicant.

(h) Trends in use of neighbouring land may be taken
into account.

(i) Error in the original choice of land use need not
be perpetuated so that the land is not put to
reasonably productive use provided that the
proposed use will not adversely affect the
neighbourhood or the special position of other
land users in the vicinity who are entitled to be
protected from changes which might threaten their
position based upon a purposes clause which, with
other purposes clauses, gave them planned
protection in return for a premium or price based
when paid upon the existence and integrity of the
planning scheme.

(j) Regard is to be had to the present system of
planning in Canberra, a system which is based upon
ensuring development along planned lines by the
use of restrictive purposes clauses in leases.

(k) Generally regard may be had to proper town
planning principles so that the use contemplated
by a proposed variation will not injure the
amenity of the area or be in conflict with the use
to which land is put by adjoining owners.

46. Obviously, in any given application one or more of these may jostle for supremacy. Some or all may be ousted altogether but if they are consideration may have to be given to an award of compensation to or the imposition of such conditions as the Court thinks just in favour of persons affected by any variation. S. 11A(8)(b). But in this case I think the considerations identified in paragraphs (a), (b), (h), (i), (j) and (k) just enumerated the most important.

47. I turn to the Act.

48. Mr Brennan submitted that there were three bases upon which the Court might reject the submissions made on behalf of Axiom. Summarised, they were:-

(a) That the Act was concerned to vest in the
Commission only those powers and functions which
would enable it to plan, develop and construct the
City of Canberra as the National Capital of the
Commonwealth by the development of Canberra as
"something to be created by reference to the
concept of a national capital - - - a capital city
with its buildings, roads, gardens and the rest
arranged and designed so far as possible to
reflect and express what is best in the national
history, its government, its art, science,
aspirations and ideals". Kent v. Johnson (1973)
21 FLR 177 (the Black Mountain Tower case), at
p 185, per Smithers J. The Act did not vest in
the Commission the purely municipal functions of
town planning in relation to construction on land
owned or held under lease by a person other than
the Commonwealth.

(b) The functions and powers referred to in s. 11 of
the Act were not vested exclusively in the
Commission and the Court, under s. 11A, was
empowered to give consideration to town planning
when dealing with applications under that section.

(c) The powers and functions vested in the Commission
by s. 11 of the Act related only to original
development of land (described by Mr Brennan as
"greenacres development") and gave no powers to
the Commission in respect of re-development or
change of land use.

49. In support of the first proposition Mr Brennan relied upon Kent v. Johnson (supra). In that case, as appears from the headnote at p 177, the Postmaster-General, by the Minister of State for Works, proposed to construct, in the City of Canberra, on Commonwealth land at the summit of Black Mountain, adjoining a public park on the mountain slopes, a multi-purpose telecommunications tower. The design of the tower proposed was unacceptable to the Commission. The construction of the tower was authorized by the Governor-General in Council. Some residents of Canberra took proceedings to restrain the two Ministers and the Commonwealth from constructing the tower as an unlawful interference with the city's environment and an unlawful exercise of the powers of the Postmaster-General and the executive power of the Commonwealth.

50. Smithers J made a finding as follows:-

"That the construction of the Post Office
tower on the summit of Black Mountain as
proposed without the approval and against the
will of the National Capital Development
Commission would constitute an exercise in
undertaking and carrying out the planning,
development and construction of the City of
Canberra as the National Capital of the
Commonwealth of Australia and as such would
be an unlawful usurpation of the functions of
the National Capital Development Commission
in contravention of the National Capital
Development Commission Act 1957 . . ."

At p.185, Smithers J referred to part of the background of the dispute and then said:-

". . . it is now asserted that such approval is
unnecessary in law, that the National Capital
Development Commission Act imposes no
restraint upon the defendants."

51. The Postmaster-General claimed to be acting in the exercise of the powers vested in him by s.80 of the Post and Telegraph Act 1901, by s.4 of the Wireless Telegraphy Act 1905 and by s.75 of the Broadcasting and Television Act 1942 under which he had power to construct works for postal, telegraphic, telephonic and other like services. It is clear, therefore, that the question whether s.11 of the Act vested exclusive powers and functions in the Commission in respect of the City of Canberra fell to be decided.

52. During the course of his reasons for judgment, Smithers J made remarks which Mr Brennan referred to in support of his first proposition. He argued to the effect that these remarks showed that the proper approach to the construction of s.11 of the Act was to view it as vesting in the Commission those powers and functions, but only those powers and functions, which would enable it to imprint upon the City of Canberra those peculiar incidents or features which would mark it out as the National Capital. It was not necessary that those powers and functions include any power in relation to town planning, including the power to deal with land use, in respect of land owned or held under lease by persons other than the Commonwealth.

53. Were it not for s.11(3A), to Mr Brennan's submissions on which I will shortly come, the submission would, I think, have much force but the sum of the powers of the Commission is the sum of the powers vested in it by s.11(2) and by or under s.11(3A) together with the enabling or facilitating power given it in respect of the totality of its powers by s.11(3), a provision I see as a machinery provision.

54. Mr Brennan also submitted that s.11(3A) of the Act made plain the fact that the powers originally granted the Commission under s.11 were not the totality of powers in relation to matters affecting, or connected with, the planning, development and construction of the City of Canberra. Had that been the case there would have been no point in declaring by amendment that the Commission's powers under s.11(3) included such powers in relation to matters affecting or connected with the planning, development and construction of the City of Canberra as were expressed to be exercisable by the Commission by an Ordinance in force under the Seat of Government (Administration) Act 1910 or by regulations made thereunder.

55. But s.11(3A) deals with a power which is pointedly different from the powers given the Commission originally in s.11(2) in relation to its functions defined in s.11(1) of the Act. The difference lies in the use in s.11(1) of the phrase "the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth" and the use in s.11(3A) of the phrase "the planning, development and construction of the City of Canberra". Because of the competing submissions put I think it appropriate to look to those matters permitted by sub-paragraphs (f) and (h) of s.15AB(2) of the Acts Interpretation Act 1901. In the speech he made to the House of Representatives on the occasion of his moving a motion that the Bill for the Act containing s.11(3A) be read a second time in that House, the then Minister for the Interior (Mr Freeth) said:-

"This bill proposes two small amendments to
the National Capital Development Commission
Act. When the commission was set up in 1957
it was intended that it should plan, develop
and construct the National Capital in an
active way. Although in this sense it had
rather a wider scope than a mere
town-planning authority as we know such
authorities, it was desired to keep the
commission as free as possible from the
normal administrative duties associated with
a government department.

Since the commission has been carrying out
its functions it has been found desirable
that it should exercise some supervision over
buildings that are being privately erected.
Normally this is carried out under the
Australian Capital Territory Building and
Services Ordinance which, like similar
legislation operating elsewhere in Australia,
authorizes the making of regulations dealing
with a host of detailed requirements relating
to building. It has been thought proper that
in at least one aspect the commission should
exercise authority, although the remaining
matters should be left to be administered as
they are at present. This aspect is the
design and siting of buildings privately
constructed. There may be others in course
of time. The existing act does not enable
the commission to exercise this authority
under the Building and Services Ordinance or
any regulation made under it, and the first
amendment simply empowers the commission to
exercise such authority strictly within the
limits of its functions of planning,
development and construction."

(Hansard (House of Representatives) Vol.29, 9 November 1960, p.2649.)

56. When the debate resumed on 1 December, Mr Allan Fraser said:-

"The Opposition supports this bill, believing
that the National Capital Development
Commission, as the authority entrusted with
the task of building the National Capital,
should have the powers that are conferred by
this measure, namely, power to control the
design and siting of buildings privately
constructed, . . .

When the commission was set up some three
years ago, it was decided that the commission
should be a planning and construction
authority only, and that it would be given no
powers of administration, those powers being
retained by the several departments then
exercising them. They were the Department of
the Interior, the Department of Works, the
Department of Health and the
Attorney-General's Department."

(Hansard (House of Representatives) Vol.29, p.3505.)

57. So far as I can ascertain only one Ordinance which gives additional powers to the Commission under s. 11(3A) of the Act has been made. That Ordinance is the Building (Design and Siting) Ordinance 1964 (the Design and Siting Ordinance). It applies to the City area which is defined as the City area for the purposes of the Ordinance and to land declared by regulations to be land to which it applies. It does not apply to buildings on land vested in the Commonwealth otherwise than in reversion. Sections 3, 4 and 5. Section 6 reads:

"(1) Subject to this Ordinance, the
Commission is authorized -

(a) to grant (either absolutely or subject
to conditions) or refuse approval of
proposals with respect to the external
design and the siting of buildings and
of proposals with respect to alterations
affecting the external design and the
siting of buildings;

(b) to exercise all other powers expressed
by this Ordinance to be exercisable by
the Commission; and

(c) to grant (either absolutely or subject
to conditions) or refuse an application,
for the purposes of section forty-seven
of the Building Ordinance 1972, for the
approval of the Commission with respect
to the external design and siting of a
building or an alteration to a building.

(2) The Commission shall not refuse an
approval under this Ordinance unless the
Commission is satisfied that it is necessary
to do so for the purpose of securing the
carrying out or observance of the policies of
the Commission with respect to the planning
and development of the City of Canberra."

58. The Design and Siting Ordinance is in force under the Seat of Government (Administration) Act 1910. As was noted in the debate by the then Minister for the Interior the Act originally gave no power to the Commission to deal administratively with the supervision of buildings being privately erected. That fell to be dealt with under already existing legislation such as the Ordinance and the relevant building ordinances in force from time to time. That the Parliament seems to have relied on the delegated legislation just referred to for the detailed carrying out of the planning, development and construction of the City of Canberra, lends support to the view that it did not intend to effect repeal by implication of any part of that delegated legislation. Where it did intend that any relevant delegated legislation should be repealed it permitted explicit repeal by Ordinance. See the National Capital Development Ordinances Repeal Ordinance 1957 (No. 16). This adds force to the view already expressed that the amplest interpretation ought to be given to the expression of legislative intention contained in the Act and that contained in the already existing legislation made by Ordinance.

59. Mr Brennan also referred to Canberra Labor Club Ltd. v. Hodgman (1982) 47 ALR 781, a decision of the Federal Court of Australia (Davies J). At p 785, Davies J said, referring to the Act:-

"That is only one of the statutes which
affect the planning and development of
Canberra. There is other legislation, such
as the (Ordinance), which together enable the
development of Canberra in accordance with
the policy determined by the Commission and
discussed with the Minister pursuant to s. 12
of the (Act)."

Mr Brennan said that that passage showed that the Act "lacked the teeth for it to be a comprehensive code of town planning and was made in a context where town planning was carried out pursuant to the (Ordinance) in part". As a general statement I accept that submission. It seems to me that Davies J appreciated, correctly as I think with great respect, that the provisions of the Ordinance are compatible with the Commission's exercise of its functions and powers. This accords with the view I take of s. 11(3A) of the Act.

60. Mr Brennan also relied upon s. 13 of the Act as indicating that authorities other than the Commission have responsibility for the planning, development and construction of the City of Canberra. Again I agree generally with that submission. It is consistent with the co-existence in the Commission under the Act of relevant functions and powers in the Commission and in other authorities under ordinances. I instance the Ordinance. I note however that the section appears to have been originally a transitional provision designed to effect the orderly transfer of functions and powers to the Commission from the Ministers who formerly had responsibility for the Commission's functions and powers. However, the view that the section was transitional now has less force because it was amended in 1976 (nearly 20 years after its passage) to take account of variations in administrative arrangements. See the Administrative Changes (Consequential Provisions) Act 1976, s. 3 and the Schedule to that Act.

61. Further, as to Mr Brennan's first proposition, I refer to s. 11(4) of the Act. The sub-section excludes from the Commission's functions the undertaking or carrying out of construction upon land owned, or held under lease, by a person other than the Commonwealth except in certain defined circumstances. It is significant that there is no such exclusion from the functions of the Commission of the undertaking or carrying out of planning and development of such land. The sub-section therefore shows, in my opinion that whilst construction upon such land is not part of the Commission's functions, planning and development in relation to it may be. However, it is necessary to point out that the Design and Siting Ordinance makes specific reference to the design and siting, and hence, to a degree, to the planning, of buildings (construction) upon such land and this power over design and siting is, by virtue of s. 11(3A) of the Act, undoubtedly a power given it under the Act.

62. For these reasons I reject Mr Brennan's first proposition.

63. Notwithstanding his reliance upon Kent v. Johnson (supra), Mr Brennan founded his second proposition on the submission that in that case Smithers J erred in his view of the proper construction of s. 11 of the Act.

64. His Honour gave detailed consideration to the question at pp. 185-188. His pertinent view was expressed as follows:-

"In their natural meaning (the words of s. 11
of the Act) deal with a subject matter
comprising an activity allied to an
objective. The activity is the planning,
development and construction of the City of
Canberra and the objective is to achieve a
city with the character of the national
capital of Australia.

. . .

If such an objective is to be achieved by
performing the functions of undertaking and
carrying out planning, developing and
construction it appears to me that the
subject matter of the functions conferred on
the N.C.D.C. is logically and practically
incapable of division, incapable of being
shared by that body with other bodies. The
objective demands unified direction."

65. I think, with great respect, that, as a broad statement of the legislative policy as it appears from the Act, what Smithers J said was undoubtedly correct. But it took no account of the fact that the aggregate of functions having to do with the planning, development and construction of the City of Canberra includes functions entrusted to other authorities. For this reason I prefer, with great respect, as a more accurate statement of the Commission's role the rather more restricted views taken by Davies J (already quoted) and Fox J (to which I will shortly refer). Those views acknowledge the primacy of the Commission's role but give due weight to the roles of other authorities. I reach this preference the more readily because, in the Black Mountain Tower Case, Smithers J seems not to have had his attention directed to s.11(3A), included in the Act in 1960 and immaterially altered in 1975.

66. In Kent v. Cavanagh (1973) 1 ACTR 43 (an interlocutory judgment in the Black Mountain Tower case), Fox J, at p 52 quoted sub-sections (1) and (2) of s.11 of the Act and then went on to say:-

"Under the Act the Commission is given the
task of carrying out the planning,
development and construction of the City of
Canberra, and subject to the effect of any
other relevant legislation that task is
exclusive to it. But other Federal Acts have
to be considered. There is, for example, the
Australian Capital Territory Electricity
Supply Act 1962-1966, which establishes an
Electricity Authority for the Territory and
gives it appropriate powers, including power
to carry out certain works. The
Postmaster-General has powers under the Acts
I have mentioned. Section 11 of the National
Capital Development Commission Act must be
read and understood in the light of
legislation such as I have mentioned, and the
degree of exclusiveness of the powers it
gives determined by reference to powers given
to others. It is not reasonable to suppose
that Parliament intended that the powers of
the Postmaster-General which he can exercise
elsewhere in Australia are in abeyance in the
Territory.

There is also the consideration already
discussed, namely the power of the
Commonwealth to plan and design a building to
be erected on its own land and carry out the
necessary work. It is as free to do that
work in the Territory unfettered by the need
for planning or building control as it is in
the States."

67. It follows that I accept as correct the second proposition put by Mr Brennan.

68. Mr Brennan's third proposition depends for its success upon a very narrow interpretation of the word "development". Acceptance of the submission that land use may never be changed because of changed circumstances involves the proposition that once a particular use for land is fixed upon that use remains the only use to which that land can be put by the authority exercising town planning functions. Such a view takes no account of the ordinary changes which take place over any reasonably lengthy period in any city, changes which are usually brought about as a result of the movements of people from old to new places of residence and from old to new places of business. Such ossification as the proposition would lead to is inconsistent with ordinary human experience and cannot have been in the mind of the Parliament. As counsel for Axiom put it, development is not static but dynamic, an ongoing process. In my opinion, Mr Brennan's third proposition should be rejected.

69. The Act explicitly charges the Commission to "undertake and carry on the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth".

70. Included in its powers are those vested in it pursuant to s.11(3A), presently those referred to in s.6 of the Design and Siting Ordinance, powers the exercise of which is subject to review under that Ordinance. In the result I think s.11 of the Act gives to the Commission primacy in respect of deciding what are the principles for the time being governing the planning, construction and development of the City of Canberra. However, under the Ordinance, the Building Ordinance 1972, the Design and Siting Ordinance and other legislation to which I need not refer other authorities including the Court have their roles to be carried out generally in conformity with the relevant principles espoused from time to time by the Commission. In an application under s.11A the Court is entitled to inquire into the validity of the Commission's stated principles so far as they effect the land the subject of the application, giving due regard to the primacy of the Commission's role.

71. I think that the Court's function requires it to consider first whether the proposed variation of user is repugnant to the principles for the time being governing the construction and development of the City of Canberra. That question answered in the negative, the Court must then go on to consider whether the reasonable user of the land is being impeded by its present user provision. Giving to the word "development" the broad meaning which I think ought to be attributed to it, I am satisfied that it necessarily involves an element of planning and that therefore the planning in respect of which an application for variation of user, effectively a redevelopment, is made may be examined by the Court. The approach to that examination is similar to but not, in my opinion, exactly the same as that taken by the Court to decisions of inferior tribunals, "(A categorising but not a derogatory description)". Anisminic Ltd. v. Foreign Compensation Commission [1968] UKHL 6; (1969) 2 AC 147 at p 182, per Lord Morris of Borth-y-Gest.

72. Matters to be taken into account by the Court in considering a decision of the Commission as to what are the principles for the time being governing the planning, construction and development of the City of Canberra include a refusal or failure to give proper consideration to a factor which the Commission was required to take into account in establishing the relevant planning policy. Such a refusal or failure may be apparent if on any fair view of the Commission's decision it could not properly have reached it in respect of the particular policy under which the application for variation is made. There may obviously be so great a failure to take properly into account one or more critically relevant factors that the principles of planning for the time being espoused by the Commission are necessarily vitiated thereby. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223, at p 230; Fawcett Properties Ltd. v. Buckingham C.C. (1961) AC 636, particularly at pp 660-2 and 685; Mixnam's Properties Ltd. v. Chertsey U.D.C. (1965) AC 735, at pp 753 and 764; Kingsway Investments (Kent) Ltd. v. Kent C.C. (1971) AC 72 at pp 109-110 and Anisminic Ltd. v. Foreign Compensation Commission, particularly at p 171 per Lord Reid. See also, generally, de Smith's Judicial Review of Administrative Action, 4th edn. (1980) by J.M. Evans, pp.346-354.

73. A.C.T. Youth's objection is fundamentally to the use of the land for any but residential purposes. Inquiry into the policy behind the proposed change of user would require the Court to pronounce on the validity of principles espoused by the Commission as for the time being governing the construction and development of the City of Canberra in exercise of a particular part of its powers and functions under s.11 of the Act. I think such an inquiry beyond the role of the Court and would therefore refuse A.C.T. Youth's application for leave while referring back the other applications for appropriate consideration in the light of these reasons.

This case falls to be decided on whether s.11A(1) of the City Area Leases Ordinance 1936 has any application in circumstances where the National Capital Development Commission has published Policy and Development plans which in effect foreshadow a variation of a covenant or condition of a lease in relation to the purpose for which the land subject to the lease may be used. The primary submission of the applicant for variation is that the provisions of s.11A of the Ordinance are inconsistent with the provisions of ss.11, 12 and 13 of the National Capital Development Commission Act 1957 and that the result of that inconsistency is that any person wishing to oppose the application for variation on graounds of town planning should be refused leave to be heard in opposition to the application.

2. The jurisdiction of this court is to vary any provision, covenant or condition of a lease in relation to which the purpose for which the land subject to the lease may be used (s.11A(1)). No such variation shall be made unless the court is satisfied that there are circumstances existing as in the opinion of the court make it desirable to vary the provision etc. in order that the reasonable user of the land should not be impeded or if not later than 7 days before the day for hearing of the application a certificate is filed by the Minister stating that in his opinion the variation sought would be repugnant to the principles for the time being governing the construction and development of the City of Canberra (s.11A(2)).

3. An applicant for variation is entitled to be heard on the application for variation (s.11A(5)). Any person who files with the Registrar of the court notice of his intention to oppose the application for variation is entitled, with the leave of the court, likewise to be heard in opposition to the application for variation (s.11A(6)).

4. Those provisions of s.11A invest the court with a jurisdiction to vary any provision etc. and provide some procedural matters relating to the exercise of that jurisdiction. As previously stated, the question is whether the exercise of that jurisdiction to enquire into the question whether the reasonable user of the land would be impeded unless the variation was made is ousted by the decision of the National Capital Development Commission ("the Commission") that redevelopment should take place and the proposed variation will be in harmony with that redevelopment.

5. The functions of the Commission are to undertake and carry out the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth (s.11(1) of the National Capital Development Commission Act 1957). For that purpose the Commission is empowered to provide or arrange for the provision of buildings, roads, bridges, works for the supply of water or electricity, sewerage or drainage works and other matters and things for or incidental to that purpose (s.11(2)). The Commission has power to do all things necessary or convenient to be done for or in connection with or incidental to the performance of its functions and the exercise of its powers (s.11(3)). The powers of the Commission include such powers in relation to matters affecting or connected with the planning, development or construction of the City of Canberra as are expressed to be exercisable by the Commission by or by regulations under an Ordinance in force under the Seat of Government (Administration) Act 1910-1959 (s.11(3A)).

6. The Commissioner is to keep the Minister informed of the decisions of the Commission with respect to matters of policy in relation to the performance of its functions (s.12(1)). In the event of a difference of opinion between the Minister and the Commission as to the policy which should be followed by the Commission in relation to any matter, the Minister and the Commission shall endeavour to reach agreement (s.12(2)). If the Minister and the Commission are unable to reach agreement, the Governor-General may, by order, determine the policy to be adopted by the Commission in relation to the matter and the Commission shall thereupon give effect to the policy determined by the order and continue to do so while the order remains in operation (s.12(3) and (4)). Thus the Minister is given ultimate control over the Commission with respect to matters of policy in relation to the performance of its functions.

7. Consistently with that ultimate control, the Minister is empowered to file with the Registrar of the court a certificate stating that a variation sought would be repugnant to the principles for the time being governing the construction and development of the City of Canberra (s.11A(2) of the Ordinance) and that would be an end to any application for variation. The jurisdiction of the court may be ousted by the filing of such a certificate. Under the scheme of the legislation that is the only circumstance which expressly ousts the jurisdiction of the court. The court would not, in that circumstance, embark upon the hearing of an application for leave by an objector because the variation could not be made anyway.

8. The only other circumstance in which an order for variation will not be made is if the court is satisfied that the reasonable user of the land would not be impeded. In the present case the Minister has not chosen to file a certificate stating that in his opinion the variation sought would be repugnant to the principles for the time being governing the construction and development of the City of Canberra. On the other hand, the Commission has indicated to the court by evidence that it does not oppose the application for variation because the variation would accord with the Commission's Policy and Development plan for the area. No doubt it is correct that in making its decision to change the use of the subject land from residential to a limited form of commercial use, the Commission has exercised its function to undertake and carry out the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth.

9. In my view, however, and notwithstanding the delineation of the Commission's functions by s.11 of the National Capital Development Commission Act, s.11A of the Ordinance still has some work to do. It is still appropriate for this court, in the absence of a certificate by the Minister, to consider whether the variation sought is desirable in order that the reasonable user of the land should not be impeded. The court would, of course, have regard to the decision of the Commission properly formed in pursuance of its functions under its Act.

10. Kent v. Johnson (1973) 21 FLR 177 is clear authority for the proposition that the functions of planning, development and construction of the City of Canberra as the National Capital of the Commonwealth are the exclusive functions of the Commission. This court should approve the decision in that case and adhere to it. But it seems to me that the question to be determined in the present case is a different question to that which fell for determination in Kent v. Johnson. In that case the Post-Master-General, by the Minister of State for Works, proposed to construct in the City of Canberra on Commonwealth land at the summit of Black Mountain a multi-purpose telecommunications tower incorporating tourist and restaurant facilities common in such towers. The design of the tower proposed was unacceptable to the Commission. The construction of the tower proposed was authorised by the Governor-General-in-Council.

11. Smithers J. held, inter alia, that the construction of the tower proposed without the approval and against the will of the Commission would constitute an exercise in undertaking and carrying out the planning, development and construction of the City of Canberra as the National Capital and as such would be an unlawful usurpation of the functions of the Commission in contravention of the National Capital Development Commission Act. He held accordingly that subject to any review of the policy of the Commission by the Governor-General pursuant to the said Act an injunction to restrain the construction of the tower proposed should be granted. It is to be noted that the construction of the tower proposed was on Commonwealth land which was entirely undeveloped at the time of the proposed construction.

12. The present application for variation relates to the use of land which in a sense has already been developed. In my view the functions of the Commission "to undertake and carry out the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth" denote a composite concept of devising and planning the reality of a carefully planned, developed and constructed city. There is nothing in the judgment of Smithers J. in Kent v. Johnson inconsistent with this concept. As the National Capital continues to grow, its planning, development and construction is a continuous process. Accordingly, the Commission has a continuous role. Changes of purpose for which land may be used in that changing environment are embraced by the concept of planning, development and construction of the City of Canberra as the National Capital of the Commonwealth and in the process the Commission has its functions to fulfil.

13. I have read the carefully prepared judgment of Kelly J. in draft form. I agree with his review of the legislative background to this matter and of the authorities. I also agree with the conclusion which he has reached. I have also read in draft form the judgment of the Chief Justice. I agree with the order proposed by the Chief Justice that the application for leave by the Youth Accommodation Group should be refused and that leave should be granted to the remaining objectors to be heard in opposition to the application. I would remit the application to the judge at first instance for determination.