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 86 (18 October 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
Town and Country Planning - Costs
(1991) 110 FLR 95

COURT

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

CATCHWORDS

Town and Country Planning - City Area Leases Act 1936, s.11A - Application for variation of purpose clause - Form of order.

Costs - Minister's costs - Payment to or by objector - Advoidance of legitimate competition - Whether application in public interest - Costs against objector.

City Area Leases Act 1936 (ACT), s.11A(7)

Tekmat Investments Pty Limited v Ward and Ors (1988) 81 ALR 278

HEARING

CANBERRA
18:10:1991

Counsel for the Applicant: Mr Simos QC with Ms C. Plevey

Instructing solicitors: Messrs Sly and Weigall

Counsel for the Objector: Mr W. Donald

Instructing solicitors: Messrs Macphillamy Donald and Co

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

Instructing solicitors: Australian Government Solicitor

ORDER

Pursuant to Section 11A of the City Area Leases Act 1936 (ACT), the provisions of the Crown Lease of Block 18 Section 18 Division of Fyshwick being the whole of the land contained in Crown Lease Volume 1131 Folio 69 ("Crown Lease") be varied by substituting for Clause 3(d) of the Crown Lease the following:-
"To use the premises only for the purposes of:

(i) Retail (excluding supermarkets and the sale of food and drink;
(ii) Storage processing packaging and wholesale distribution of goods;
(iii) Service trades;
(iv) Any manufacturing process;
(v) Sale of goods manufactured repaired or assembled on the premises;
(vi) Small scale service offices limited in total to not
more than 500 square metres of gross floorspace;
BUT EXCLUDING any use of the premises which causes injury
to or prejudicially affects the amenity of the area by the
emission of noise vibration smell fumes ash smoke waste water or
waste products
PROVIDED ALWAYS THAT within the meaning of this clause
"wholesale" means the sale or the supply of goods in bulk for
the purpose of resale and "manufacturing process" means the
making of articles by physical labour or machinery."

The Minister's costs are to be paid as to 20% by the applicant and as to 80%

by the objector.

DECISION

The present application concerns the form of the proposed purposes clause to be inserted in the Crown Lease in substitution for the present clause.

2. I have to say, at the outset, that the submissions of the respondent, insofar as they contend that the purposes clause be amended so as to permit only the present development proposal, fail to reflect correctly the role and function of a lease purposes clause. It is fundamentally to limit the range of uses to which the land may be put. That limitation, in the interests of flexibility of land use, should not be more restrictive than is required by the application of proper town planning principles. In this case, I have accepted that the principles accepted by the current Fyshwick Policy Plan are applicable. Consequently, the amended purposes clause does not need to reflect any more restricted a range of land uses than would give effect to the limitations thereby proposed, subject to considerations of fairness to possible objectors who could be supposed to have no objection to the originally notified proposal for alteration of the purposes clause but who might object to a significantly different proposal being effectuated.

3. Accordingly, I propose to make a provisional order in the following terms:-

1. Pursuant to Section 11A of the City Area Leases Act 1936
(ACT) ("CALA"), the provisions of the Crown Lease
of Block 18 Section 18 Division of Fyshwick being the whole of
the land contained in Crown Lease Volume 1131 Folio 69 ("Crown
Lease") be varied by substituting for Clause 3(d) of the Crown
Lease the following:-
"To use the premises only for the purposes of:
(i) Retail (excluding supermarkets and the sale of food
and drink;
(ii) Storage processing packaging and wholesale
distribution of goods;
(iii) Service trades;
(iv) Any manufacturing process;
(v) Sale of goods manufactured repaired or assembled on
the premises;
(vi) Small scale service offices limited in total to not
more than 500 square metres of gross floorspace;
BUT EXCLUDING any use of the premises which causes injury
to or prejudicially affects the amenity of the area by the
emission of noise vibration smell fumes ash smoke waste water or
waste products
PROVIDED ALWAYS THAT within the meaning of this clause
"wholesale" means the sale or the supply of goods in bulk for
the purpose of resale and "manufacturing process" means the
making of articles by physical labour or machinery."

This clause retains the previous range of uses whilst adding the retailing and small scale service office uses sought by the applicant.

4. Whether or not a proposal for a development suitable for any of the uses thus permitted will be supported by the Interim Territory Planning Authority ("ITPA") is a matter for that body to determine in due course in the light of the then current relevant Plans.
Costs:

5. The issue in the present case is as to the application of s.11A(7) CALA:-

"The applicant for variation shall pay his own costs and, if the
Court so orders, the full costs of any other person appearing in
pursuance of this section."

6. In Tekmat Investments Pty Limited v Ward and Ors (1988) 81 ALR 278, a Full Court of the Federal Court gave consideration to the application of that sub-section. It was accepted, of course, that the sub-section does not permit an order for costs to be made against an objector given leave to appear pursuant to s.11A in favour of an applicant. An unsuccessful objector may, nevertheless, be awarded costs to be paid by the applicant. There is no departure from the ordinary rule as to costs otherwise. There is no immunity from an adverse costs order, or prohibition on receiving the benefit of a costs order, from any party in respect of the Minister.

7. The discretion so modified should be guided, firstly, by the comments of the trial judge in Tekmat as approved by the Full Court at p 281 of the judgment.

"Where an objector makes out a substantial, even though in the event
unsuccessful, case against an application for variation the court is
not bound to follow the ordinary rule as to costs but may in the
proper exercise of its discretion order that the costs of the
objector or part of them should be paid by the applicant. An
objector is unlikely to have an order for costs made in his favour
if he merely advances arguments which have been dealt with by the
court before or if he fails to adduce any sufficient evidence which
goes at least some distance towards proving, even if in the event
inadequately, a ground or the grounds upon which he seeks to rely."

8. The Full Court approved of that statement of principle and added the following:-

(282) "We would not accept that there is any general rule that
a reasonable objector advancing arguments with some degree of
success ought to receive costs. On the view we take, the
statute gives the court a wide discretion as to costs. The
circumstances in which that discretion falls to be exercised may
vary widely, and in many cases it may seem proper to refuse even
a reasonable objector any costs, or to make only a partial order
for costs in favour of such an objector."

9. An objector whose purpose has been to advance the public interest, and has done so responsibly, is, in my view, more deserving of costs than an objector endeavouring to advance his, her or its own personal economic interest. This is not to say that an objector would be deprived of costs which otherwise would be awarded, merely because the result would, if the objector succeeded, be in the economic interests of that party.

10. In this case, however, the objector (and those supporting the objector) clearly had as its primary objective the avoidance of legitimate competition. That is not an objective supported by any rational principle of economics or the public interest. It is true that the actual grounds raised for consideration went beyond that objective and probed substantial matters that needed to be addressed. However, none of the objections on those grounds proved, on examination, to have any substance.

11. If the ordinary rule as to costs was applied, even with a qualification in favour of public interest objectors, the objector would, in my view, be ordered to pay the applicant's costs. It can do no worse, viz-a-viz the applicant, than fail in its application for costs. I make no order as to the costs of the objector.

12. The Minister applies for an order for costs. I reject the submission that the Minister was not a necessary party. In such a matter the public interest is paramount. The case is not one merely to be resolved by reference to the issues private adversaries may wish to draw to the attention of the court. I also accept that, in this case, the Minister has not unnecessarily prolonged the matter or participated without good cause. The Minister should, therefore, have the benefit of a costs order.

13. However, as the source of any unnecessary prolongation of the matter was the objector, not the applicant, it does not seem to me to be just that the applicant should bear the whole of the Minister's costs.

14. The Minister did not ask for an order against the objector but I think justice is not served unless such an order is made, at least in part.

15. Accordingly, the Minister's costs are to be paid as to 20% by the applicant and as to 80% by the objector.