Re Section 11a City Area Leases Act 1936 and Re An Application By Calardu Pty Limited To Vary the Provisions of the Crown Lease of Block [1991] ACTSC 22 (19 March 1991)

SUPREME COURT OF THE ACT

IN THE MATTER of Section 11A City Area Leases Act 1936 AND IN THE MATTER of an
application by CALARDU PTY LIMITED to vary the provisions of the Crown Lease
of Block 18 Section 18 Division of Fyshwick in the Australian Capital
Territory
S.C. No. 670 of 1989
City Area Leases Act
[1991] ACTSC 147; (1991) 100 ACTR 1
(1991) 109 FLR 361

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

City Area Leases Act - Variation of purpose clause - Lease purpose clause attracting s.8A CALA.

Exercise of court's power of amendment to grant relief other than that sought in the Notice of Motion - Possibility of prejudice to objectors - Consideration to be given to objects of legislative scheme - Whether any material difference between permissible variation and those applied for by the Notice of Motion - Consequences thereof.

City Area Leases Act 1936 (ACT) s.8A, s.8A(1)(a) to (d), s.8A(3)(c) and (d), s.8A(5)

ACT (Planning and Land Management) Act 1988 (Cth)

Fyshwick Policy Plan 1988

National Capital Plan

Williams v De Boinville (1886) 17 QBD 180

Cook v Andrews (1897) 1 Ch 266

Gill v Woodfin (1884) 25 Ch D 707

Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW [1956] HCA 22; (1956) 94 CLR 554

Connelly v DPP (1964) AC 1254

Herron v McGregor (1986) 6 NSWLR 246

Wattle Community Association Inc (unreported; SC 264/90; 22/8/90; ACTSC; Higgins J.)

Grant and Ors (unreported; SC 513/90; 30/10/90; ACTSC; Higgins J.)

Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242

Parkes Developments Pty Ltd v Cambridge Credit Corp Ltd (1974) 33 LGRA 196

ACT Meat Corporation Pty Ltd (unreported; SC 652/89; 15/12/89; ACTSC; Kelly J.)

Ian Gillespie-Jones (unreported; SC 266/89; 29/9/89; ACTSC; Kelly J.)

Hosmer Holdings Pty Ltd (unreported; SC 592/90; 9/11/90; ACTSC; Gallop J.)

HEARING

CANBERRA
19:3:1991

Counsel for the Plaintiff: Mr Simos QC with Mr Johnstone

Instructing solicitors: Messrs Sly and Weigall

Counsel for the Defendant: Mr Tamberlin QC with Mr Costigan

Instructing solicitors: Messrs Macphillamy Donald and Co

Counsel for the Minister: Mr R Williams QC with Mr Chin

ORDER

Leave be granted to the applicant to bring in minutes of the proposed orders.

DECISION

In this matter I heard further submissions on 14 February 1991.

2. After I made certain findings on 18 December 1990, the National Capital Planning Authority issued the National Capital Plan. It was approved by the relevant Minister by notice in the Commonwealth Gazette published 21 December 1990. It is noted in that Plan (p 7) that it is substantially the same as the certified draft Plan which it replaces. The approval of the Fyshwick Policy Plan 1988 is continued (see appendix C, p 31).

3. I am satisfied that the approval of the final Plan does not require any alteration to the conclusion which I expressed on 18 December 1990 that the applicant's proposed use of the land herein does not conflict with any Plan approved pursuant to the ACT (Planning and Land Management) Act 1988 (Cth) (ACT(P and LM)A). It follows, that my conclusion that proposed clause 3(d)(i) is not objectionable for such a reason, will not be affected.

4. It further follows that my conclusion that the reasonable user of the land was being impeded by the present purpose clause of the Crown Lease and that there was no public interest or town planning reason for refusing an appropriate variation of that clause, is confirmed. Indeed, no party suggested that those conclusions required review.

5. However, Mr Williams QC, for the Minister, did request me to review the criticism I made of the form of the variation sought by the applicant. Mr Simos QC, for the applicant, supports that view and points to a written submission of 5 November 1990 supporting paragraph (ii) of the variation applied for. That submission referred, as did Mr Williams QC, to s.11A(5) of the City Area Leases 6 (ACT) (CALA).

6. Before addressing the issue whether a variation can or should be granted in a different form from that applied for I will, therefore, address that prior issue.
FORM OF VARIATION SOUGHT

7. In my previous reasons (p 32-35) I noted that all that was really required for the applicant's proposal to proceed was for the addition of proposed clause 3(d)(i) of the proposed new clause 3(d) to the presently permitted uses.

8. I was concerned that the proposed clause 3(d)(iii) ("small scale offices") was expressed in a form wider than that favoured by the Fyshwick Policy Plan 1988. The applicant has proposed an amended form which narrows that clause so as to conform to that Plan. No party has suggested a review of the conclusion which leads to that amended proposal. There remains, therefore, in relation to this proposed sub-clause, only the issue as to whether an amendment of that kind can or ought to be made.

9. There was a request for review of my criticism of the proposed variation related to the proposed 3(d)(ii). That sub-clause is designed to attract, but does not necessarily attract, the provisions of s.8A (CALA).

10. It is submitted that if proposed 3(d)(ii) does attract s.8A, s.8A(5) would avoid any prohibition of the retailing expressly permitted by proposed clause 3(d)(i). That would avoid conflict between the two proposals.

11. This submission has substance.

12. Section 8A(5) provides:-
"Sub-section (2) or (3) of this section, as the case may

be, does not apply to land that is used for a purpose
specified in sub-section (2) of this section, or to a
building that is used for a purpose specified in
sub-section (3) of this section, if the use of the land or
the building for that purpose, is either expressly or by
necessary implication, authorized by the lease otherwise
than by reason of the fact that the lease authorizes the
use of the land for a purpose specified in sub-section (1)
of this section."

13. Of course, the land in question here is not presently being used and the lease presently does not authorise, expressly or impliedly, the use of the land for the sale of goods by retail. It follows that this sub-section does not presently apply to the lease. However, if the proposed purpose clause did presently appear in the lease or was to be now inserted in it, it is true to say that if s.8A applied to proposed clause 3(d)(ii), s.8A(5) would prevent the qualified prohibition on the sale of goods by retail which would otherwise be effected by other provisions of s.8A from taking effect.

14. Accordingly, proposed clause 3(d)(ii) would be inconsistent with the proposed development only if the lease "expressly or by necessary implication" does not authorise the use proposed in proposed clause 3(d)(i). Whilst proposed clause 3(d)(i) permits the purpose "retail", it does not expressly permit the "sale of goods by retail". However, it necessarily entails that such a use would be permissible. It follows that, if the lease is altered as proposed, clause 3(d)(ii) would then cease to forbid the proposed development, assuming that s.8A (CALA) applies to the proposed variation.

15. The fact that such a detailed consideration of the provisions of s.8A has been necessary highlights the criticism made in the Fyshwick Policy Plan of lease purpose clauses attracting s.8A. A lease should say what is permitted, not rely on the peculiar qualifications provided for by the section. Those provisions are, I consider, unduly complex and confusing.

16. I now turn to whether clause 3(d)(ii) would in truth attract the provisions of s.8A (CALA). If it does, the lease will by virtue of those provisions, prohibit the purposes referred to in s.8A(3)(c)and (d), that is:-

"(c) as a boarding-house, guest-house, hostel or hotel or
as a building of the kind commonly known as a motel;
or
(d) as flats or as a building for the provision of
residential accommodation of the kind commonly known
as a flat, an apartment or a home unit."

17. It is a clear implication that but for this prohibition or an express exception in the lease, the class of purposes clause of which examples are cited in s.8A(1) would permit such uses. Those uses are, as I have previously noted, unsuitable for the Fyshwick area. They are inconsistent with the Fyshwick Policy Plan.

18. Obviously, proposed clause 3(d)(ii) does not contain the words or terms quoted in s.8A(1)(a) to (d) inclusive as being necessary to attract its provisions. Words of qualification or limitation appearing with those words do not prevent s.8A applying to the lease provided that the terms quoted in s.8A(1) appear somewhere in the relevant purpose clause.

19. It has been submitted that the term "industry" can be read as if it was the same as "an industry or industries". I have no doubt that in context, "industry" does convey the same meaning as "an industry or industries". However, s.8A (1) is not qualified so as to refer to words or phrases having a like meaning. It specifically singles out certain terms and encloses them in quotation marks. That implies that the term in question must appear as so quoted whether or not with words of qualification or limitation or with words adding other purposes.

20. Proposed clause 3(d)(ii) does not contain any of the words or phrases so precisely quoted in s.8A(1). In my opinion, it follows that proposed clause 3(d)(ii) would not, in its present form, succeed in attracting the provisions of s.8A.

21. It further follows that proposed clause 3(d)(ii) would have the undesirable consequence that uses, such as those referred to in s.8A(3)(c) and (d), would be permissible pursuant to its terms. This is, of course, contrary to the current Plan.

22. Even if I am wrong in my conclusion, and if s.8A does apply, then although this would avoid the widening of the commercial purposes thus permitted so as to embrace those uses referred to in s.8A(3)(c) and (d), the very attraction of s.8A is a result which was criticized, as I have noted, in the 1987 draft Fyshwick Policy Plan. The current Plan of 1988 at p 10 has, as one of its stated objectives, a proposal that s.8A will not be attracted by future leases "due to the complexity of interpreting such leases".

23. It is at least arguable, therefore, that a variation which attracted s.8A would, by so doing, be repugnant to the Fyshwick Policy Plan 1988. However I do not need to resolve this question or to go so far as to consider whether the Court is prohibited by s.11 and/or s.64 of the ACT(PandLM)A from permitting a variation which would have such an effect. That is because I am convinced that both the draft Policy Plan and the final and current Policy Plan rightly deprecate the issue of leases attracting s.8A by their terms. That criticism has as much application to the variation of an existing lease as to the issue of a new lease. Whether or not there is an inconsistency, in my view it would not be in the public interest to amend a purpose clause so as to attract s.8A.

24. It follows that the present application should not be granted in its entirety. Both proposed clauses 3(d)(ii) and 3(d)(iii) require alteration to be acceptable variations. That raises the question of amendment.
Grant of Application in an Amended Form

25. The real issue in this case was whether the development proposed by the applicant was contrary to relevant Plans or to the public interest. I have rejected that contention but have decided that the relief sought should not be granted in the form applied for insofar as the ancillary uses sought to be permitted are concerned.

26. The first question, of course, is whether it is permissible to do otherwise than grant or refuse the relief sought and advertised.

27. It is to be noted that amendment of the Notice of Motion, or of the relief sought pursuant to it, is not expressly prohibited. Generally, subject to an obligation to give fair notice to persons who are or might be affected by the relief sought, a Court on the hearing of a Notice of Motion is empowered to give the relief applied for in a different form than so notified by that Notice of Motion (see for example, Order 32 rule 12 ACT Supreme Court Rules Williams v De Boinville (1886) 17 QBD 180; Cook v Andrews (1897) 1 Ch 266; Gill v Woodfin (1884) 25 Ch D 707).

28. I accept that as a general rule, the conferral upon a Court, particularly a superior court of record, carries with it the ancillary powers necessary to give effect to that jurisdiction. That includes power to amend Notices of Motion or the relief applied for pursuant thereto.

29. That principle is well stated in Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW [1956] HCA 22; (1956) 94 CLR 554, 560:-

"When the legislature finds that a specific question of a
judicial nature arises but that there is at hand an
established court to the determination of which the
question may be appropriately submitted, it may be supposed
that if the legislature does not mean to take the court as
it finds it with all its incidents...it will say so."

30. The House of Lords endorsed the same principle in Connelly v DPP (1964) AC 1254, 1301 (per Ld Morris of Borth-y-Gest):-

"There can be no doubt that a court which is endowed with a
particular jurisdiction has powers which are necessary to
enable it to act effectively within such jurisdiction. A
court must enjoy such powers in order to enforce its rules
of practice and to suppress any abuses of its process."

31. McHugh J.A. (as he then was) in Herron v McGregor (1986) 6 NSWLR 246, at 250, approved these statements.

32. I therefore conclude, that this court is empowered to exercise its usual powers of amendment on the hearing of this application.

33. That power, however, must be exercised with due regard for the objects of the legislative scheme established by the provisions of s.11A (CALA).

34. In Wattle Community Association Inc (unreported; 22/8/90) I held that the period of notice required under s.11A could not be dispensed with by the court. It is a mandatory statutory requirement.

35. I have no doubt that advertising, as required by s.11A is also mandatory. As I noted in Grant and others (unreported; 30/10/90), the particulars required to be advertised are no more than the terms of the Notice of Motion. There is no doubt that the motion thus notified must in its terms, be that which, if the application succeeds, will effect the variation to the Crown Lease sought by the applicant. Whilst the notice might not always set out the existing clause so that the effect of the variation then set out can immediately be observed, it will at least give a would-be applicant the information necessary to search the Crown Lease and then understand the variation sought by the Notice of Motion.

36. There is also no doubt that the purpose of advertising the Notice of Motion and of serving a copy on the Minister is to give the public and the Minister a fair opportunity to consider the application and take necessary advice as to the desirability or otherwise of the variation sought. As a result of that opportunity, a member of the public may decide to seek leave to be heard as an objector (see s.11A(6)). The Minister, of course, could decide to veto the application (see s.11A(2)(b)). Even if the Minister does not veto the application, he or she is entitled to appear and be heard to support, oppose or merely to assist the court as the Minister deems appropriate in relation to the application.

37. In my opinion, if the applicant seeks, or is found to be entitled to a variation different from that advertised by the publication of the Notice of Motion, the court must be satisfied that to allow that amendment or to grant a different order would not prejudice the rights of the Minister or any potential objector. It is a situation which necessarily requires careful consideration to avoid that result because, ex hypothesi, potential objectors are unrepresented. A more robust approach to allowing amendments is appropriate when all possible interested parties are represented and can state grounds for opposing or supporting the proposed amendment.

38. In Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242 Stephen J. (at 252-3) pointed out the importance of an advertisement, such as that contemplated by s.11A, in informing would-be objectors of what is proposed. Here, the Notice of Motion (unlike the Notice in the Wattle Community Association Inc case (supra)) does clearly indicate the range of proposed purposes the application seeks to have approved.

39. Having regard to the purpose of the requirement to advertise and serve the Notice of Motion, the question is whether there is such a material difference between the relief sought and that which it is proper to approve that a potential objector could be prejudiced by being deprived of a fair opportunity to object which might have been exercised had the application been advertised in the form in which the orders are ultimately made. (See Parkes Developments v Cambridge Credit Corp Ltd (1974) 33 LGRA 196.)

40. There have been some past applications under s.11A in which relief was granted in a form different to the relief advertised as being sought. It must be emphasised that none of those applications was opposed. No argument was put that the amendments in question should not have been made.

41. Nevertheless, in ACT Meat Corporation Pty Ltd (unreported; SC 652/89; 15/12/89) Kelly J. granted an application in a different form from that applied for. However, the difference was purely one of form, not substance. In Ian Gillespie-Jones (unreported; SC 266/89; 29/9/89) Kelly J. granted leave to further amend an amended Notice of Motion. He did not require that amended Notice of Motion to be further advertised. It is clear from a perusal of the amendments he allowed that the same were designed merely to clarify the drafting of the proposed variation. In some minor respects (eg. alteration of "hiring of goods" to "hiring or installations of machinery, mechanical equipment and appliances") the changes could be said to have narrowed the variation sought but it is clear to me that they could not reasonably be supposed to have prejudiced the Minister or any potential objector.

42. More recently, on 9 November 1990, Gallop J. permitted a Notice of Motion proposing a varied lease purpose clause to be amended without requiring the application to be re-advertised. That was in Hosmer Holdings Pty Limited (unreported; SC 592/90; 9/11/90). The amendment approved was to limit the area of one category of uses to 475m of floorspace. This was, clearly, a change that was a material one, but it was not an alteration at all likely to be objected to by any member of the public. It was not objected to by the Minister.
Is there a "material" difference between permissible variations and these applied for by the advertised Notice of Motion?

43. A further question to determine is whether the amendments to proposed clauses 3(d)(ii) and (iii), required to enable them to conform to the relevant Plan, are "material" relative to possible but unheard objectors. The Minister has clearly indicated, through his counsel, that his interests are not adversely affected.

44. The proposed amendment to clause 3(d)(iii) (ie limiting the floor area which may be used for small scale offices to 500m2) is, I think, plainly immaterial. It is similar, in any event, to the amendment allowed by Gallop J. in the Hosmer Holdings Pty Ltd application referred to above.

45. As to proposed clause 3(d)(ii), the difference from that applied for must, necessarily, be more extensive. It is a material difference to delete the proposed amendment altogether. It can be supposed that there may be objectors who would not disapprove of the alternative of retail uses being added to the lease, but would disapprove of the loss of the option of non-retail industrial uses (excluding, of course, hotel/motel/boarding house uses). In other words, the presently permitted uses, some might believe, should not be deleted. Indeed, the Fyshwick Policy Plan, whilst it does not exclude some areas being "retail" and other areas "non-retail", would be better effectuated if a greater flexibility was permitted in the range of permitted uses, provided no permissible use is beyond the limits envisaged by the Plan.

46. It is to be observed that the original application, as notified, would have conveyed to the public a proposal to add retail and small scale office use to the current non-retail industrial uses. I do not believe that any member of the public (and probably few members even of the legal profession) would have considered proposed clause 3(d)(ii) objectionable because of the possible application of s.8A. Most people would, I think, consider that proposed clause 3(d)(ii) was intended to permit the range of non-retail commercial uses with which Fyshwick has been traditionally associated. They would not turn their minds to the type of use which clause 3(d)(ii) unintentionally would permit in its proposed form. It seems to me, therefore, that if proposed clause 3(d)(ii) is amended so as to reflect that position, that is, not attracting s.8A and not going beyond the range of non-retail industrial uses traditionally permitted by the Fyshwick Policy Plan, then it would be appropriate to approve such a clause. Indeed, it would be inappropriate, for reasons I have noted above, simply to delete that sub-clause.

47. I therefore propose to grant the application but in an amended form. The only remaining procedural question is whether it is necessary to amend the Notice of Motion. There does not seem to me to be a settled practice on this point. If, as it seems to me is the present case, the variation between the Notice of Motion and the relief granted is not material, there is no particular reason why the Notice of Motion needs to be amended. Certainly, if the application needs to be re-advertised because of a material change, it can only be done by the means of an amendment to the Notice of Motion (including a fresh hearing date so that relevant times for giving notice can be observed) or the filing of a new Notice of Motion.

48. I grant leave to the applicant to bring in minutes of the proposed order and I will then hear the parties as to costs.