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Federal Court of Australia |
Last Updated: 22 August 2003
Westfield Management Ltd v Brisbane Airport Corporation Ltd
WESTFIELD MANAGEMENT LTD v BRISBANE AIRPORT CORPORATION LTD, PETER CZERKASKI, WILLIE TAIT AND MINISTER FOR TRANSPORT AND REGIONAL SERVICES
Q64 OF 2003
COOPER J
BRISBANE
8 AUGUST 2003 (CORRIGENDUM 22 AUGUST 2003)
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
Q64 OF 2003 |
BETWEEN: |
WESTFIELD MANAGEMENT LTD ACN 001 670 579 APPLICANT |
AND: |
BRISBANE AIRPORT CORPORATION LTD ACN 076 870 650 FIRST RESPONDENT |
AND: |
PETER CZERKASKI SECOND RESPONDENT |
AND: |
WILLIE TAIT THIRD RESPONDENT |
AND: |
MINISTER FOR TRANSPORT AND REGIONAL SERVICES FOURTH RESPONDENT |
JUDGE: |
COOPER J |
DATE OF ORDER: |
8 AUGUST 2003 (CORRIGENDUM 22 AUGUST 2003) |
WHERE MADE: |
BRISBANE |
In the judgment of his Honour Justice RE Cooper dated 8 August 2003, at paragraph six, line one, the word `applicant' should be replaced with the word `respondent'.
I certify that the preceding paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Cooper. |
Associate:
Dated: 22 August 2003
Westfield Management Ltd v Brisbane Airport Corporation Ltd
PRACTICE AND PROCEDURE - separate hearing of issues - whether clear justification - whether reasonable in the circumstances
Airports Act 1996 (Cth) ss 32, 71, 89
Airports (Building Control) Regulations 1996 (Cth)
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 applied
Corporation of the City of Vancouver v Bishop of Vancouver Island [1921] 2 AC 384 (PC) cited
Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368 (FC) cited
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 cited
WESTFIELD MANAGEMENT LTD v BRISBANE AIRPORT CORPORATION LTD, PETER CZERKASKI, WILLIE TAIT AND MINISTER FOR TRANSPORT AND REGIONAL SERVICES
Q64 OF 2003
COOPER J
BRISBANE
8 AUGUST 2003
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
|
1. The application is dismissed.
2. Costs of the application and of the directions will be each party's costs in the proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
|
BETWEEN: |
WESTFIELD MANAGEMENT LTD ACN 001 670 579 APPLICANT |
AND: |
BRISBANE AIRPORT CORPORATION LTD ACN 076 870 650 FIRST RESPONDENT |
AND: |
PETER CZERKASKI SECOND RESPONDENT |
AND: |
WILLIE TAIT THIRD RESPONDENT |
AND: |
MINISTER FOR TRANSPORT AND REGIONAL SERVICES FOURTH RESPONDENT |
JUDGE: |
COOPER J |
DATE OF ORDER: |
8 AUGUST 2003 |
WHERE MADE: |
BRISBANE |
1 The applicants are entities holding interests in shopping centres known as `Westfield Carindale Shopping Centre', `Westfield Toombul Shopping Centre' and `Westfield Chermside Shopping Centre', which are situated near or within a reasonable distance from the Brisbane Airport Site (`the Airport Site'), and are centres provided for and depicted in the Strategic Plan contained in the 1987 Brisbane Town Plan.
2 The first respondent is the lessee of the Airport Site and the `Airport-Operator' within the meaning of the Airports Act 1996 (Cth) (`the Act'). The Airport Site is subject to a Final Master Plan (`the Master Plan') approved under the Act in 1998. The Master Plan contained a `Development Concept' which included provision for `non-aeronautical development' in certain identified precincts. One of these precincts was entitled `Gateway Park'.
3 The Master Plan made provision for `Land New Use Zones' within the Master Plan which included a `Business Zone'. In respect of the Business Zone, the Master Plan stated:
`The business zone is a broad and flexible zone supporting a range and hierarchy of retail, business, community, leisure, entertainment, recreation and light and service industries.It is intended that development within this zone be consistent with the South-East Queensland Regional Framework for Growth Management 1995 and the Brisbane Strategic Plan.'
4 In respect of the Gateway Park precinct, it stated:
`The Gateway Park is intended to develop into a distinctive contemporary convenience centre at the existing southern entrance into the airport off the Gateway Motorway. "Gateway Park" will include a mix of business and commercial activities characterized by stand alone buildings set back from, and with good exposure to major roads and surrounded by convenient car parking areas, and extensive landscaped areas, particularly along road frontages. Built from [sic] will be characterized by a maximum building height of 6 stories. All other standards will be generally in accordance with the Brisbane Town Plan.'
5 The applicants allege that the first respondent intends to undertake a development of the Gateway Park precinct, being an area of about eighty hectares situated at the intersection of Airport Drive and the Gateway Motorway, and have taken steps to implement the development by obtaining works permits under the Airports (Building Control) Regulations 1996 (Cth) (`the Regulations') for the carrying out of bulk earthworks and site preparation for development of the Gateway Park precinct. The applicants allege that the development proposed by the first respondent is to [par 7]:
`(a) include:(i) a tourism precinct (including hotels, restaurants, coffee shops and an outlet shopping precinct);
(ii) a convenience precinct (including a full service supermarket, a medical centre, a pharmacy, a fruit shop, a hairdresser, a post office, a petrol station, a bakery, a butcher and a 400 bay car park);
(iii) a leisure precinct (including an 18 hole golf course, a driving range, a coffee shop a child care centre, a gymnasium and a 75 bay car park);
(iv) a homewares precinct (including a 700 bay car park);
(v) a commercial precinct (including between 60,000m² and 100,000 m² of office space).
(b) involve total retail floorspace of about 70,000 m²;
(c) be situated adjacent to the Gateway Motorway, about 2 kilometres ("km") from the Westfield Toombul Shopping Centre but about 4 km from the domestic terminal at the Brisbane Airport.'
6 The applicants allege that the conduct of the first applicant and the proposed development are unlawful being in contravention of the Act and contrary to the Master Plan. It is alternatively alleged that, if the proposed development is authorised by the Master Plan, then the approval of the Master Plan by the fourth respondent, the Minister for Transport and Regional Services, was beyond power and the purported approval of the Master Plan under the Act was of no effect.
THE PLEADINGS
7 By an amended statement of claim (`SOC') filed on 30 May 2003, the applicants allege:
(a) the proposed development of the Gateway Park Development (as pleaded in pars 6 and 7 of the SOC) constitute the carrying on of substantial trading or financial activities in contravention of s 32(1) of the Act: pars 6 - 10 inclusive;
(b) the proposed development is not consistent with the 1987 Brisbane Town Plan including the Strategic Plan contained in the 1987 Brisbane Town Plan, and accordingly the proposed development is not consistent with the Master Plan: pars 11 - 16 inclusive;
(c) the proposed development cannot be lawfully approved under the Act: pars 17 - 20 inclusive;
(d) that if the proposed development is consistent with the Master Plan, the Master Plan itself is invalid; or to the extent that the Master Plan purports to authorise the proposed development, it is invalid as approval is beyond the power of the fourth respondent: pars 21 and 22;
(e) the proposed development is a `major airport development' for the purposes of s 90 of the Act, the carrying out of which by or on behalf of the first respondent was prohibited without approval under Div 5 of the Act, which approval had not been obtained: pars 23 to 28 inclusive;
(f) the proposed development, including the bulk earthworks and site preparation, being inconsistent with the Master Plan, means that the building activity in respect of the same is incapable of being approved under the Regulations, and in consequence the purported earthworks approvals were prohibited by s 101 of the Act and were invalid and of no effect: pars 29 - 32 inclusive;
(g) the earthworks undertaken by or on behalf of the first respondent, in purported reliance on the approvals issued by the second and third respondents under the Regulations, have been carried out in contravention of s 90(1) and s 99(1) of the Act, and the proposed piecemeal construction of the Gateway Park Development without a major development plan approved under Div 4 of the Act will also contravene those sections: pars 33 and 34; and
(h) the proposed development is incapable of approval pursuant to the Act: pars 35 and 36.
8 The first respondent by its defence filed on 16 June 2003:
(a) admits:
(i) the Master Plan contains development objectives and preferred land uses for part of the Brisbane Airport site identified as Gateway Park;
(ii) the Master Plan provides that Gateway Park is proposed to be developed by the first respondent into:
`... a distinctive contemporary convenience centre at the existing southern entrance into the Airport off the Gateway Motorway and would include a mix of business and commercial activities characterised by stand alone buildings set back from and with good exposure to major roads and surrounded by convenient car parking areas and extensive landscaped areas, particularly along road frontages;'
(iii) an eighteen hole par 3 golf course is under construction at Gateway Park, but pleads that it has been sub-let to an entity unrelated to it.
(b) pleads:
(i) it approved on 1 November 2002 expenditure of up to $9.8m for the construction, by a contractor, of a building at Gateway Park;
(ii) it decided on 1 November 2002 that when the building was constructed, it would sub-lease the building to an entity unrelated to it, to be used by that entity for factory outlet sales;
(iii) its present proposals, as concepts, are to have constructed at Gateway Park other stand-alone buildings for uses including an hotel, a restaurant, a coffee shop, a supermarket and a medical centre;
(iv) in the future, it may cause other buildings to be constructed at Gateway Park;
(v) such future buildings may not necessarily reflect its present concept proposals, whether in nature, scale or location;
(vi) it intends that any future buildings would be sub-leased to entities unrelated to it for use by those entities for commercial, retail or tourism purposes;
(vii) that apart from the one building, construction of which it has approved, it has not approved the construction of any other building for commercial, retail or tourism purposes;
(c) denies:
(i) it proposes to develop and operate `the Gateway Park Development' as that term is used in the SOC;
(ii) the facts otherwise alleged in pars 6 and 7(a) and (b) of the SOC;
9 The first respondent pleads that the construction of the golf course and any stand-alone buildings, and, the sub-letting of the golf course and any stand-alone buildings to entities unrelated to the first respondent, do not constitute the carrying on of trading or financial activities by the first respondent within the meaning of s 32(1) of the Act: par 9(b) of its defence (`def'). In the alternative, it pleads that if such activities are trading or financial activities, then these are related to, or incidental to, the operation or development of Brisbane Airport within the meaning of s 32(1) of the Act: def par 9(c). Otherwise, it denies that the Gateway Park Development, as pleaded in the SOC, is not related to or incidental to the operation or development of Brisbane Airport as pleaded in par 9 of the SOC: def par 9(e).
10 The first respondent, by virtue of the matters which it pleads by way of admission or explanation of its proposals in respect of the area entitled Gateway Park on the Master Plan, denies that it proposes to carry on substantial trading and financial activities in contravention of s 32(1) of the Act as alleged in par 10 of the SOC: def par 10.
11 The first respondent denies that:
(a) the Master Plan, as a matter of proper construction, provided that commercial development on the Brisbane Airport site is to be consistent with the 1987 Brisbane Town Plan, including the 1987 Strategic Plan: def par 14(a)(i);
(b) the type of shopping centre permitted to be constructed in a Business Zone on the Airport Site is a `convenience centre' within the meaning of the 1987 Brisbane Town Plan, including the 1987 Strategic Plan: def par 14(a)(ii);
(c) the 1987 Brisbane Town Plan including the 1987 Strategic Plan, nor the Brisbane City Plan 2000, operate in respect of the Airport Site: def par 15(c);
(d) on the proper construction of the South-East Queensland Regional Framework for Growth Management 1995 (`the 1995 Regional Framework'), and of the 1987 Strategic Plan, development is not consistent with the 1995 Regional Framework, if it is inconsistent with the hierarchy of centres in the 1987 Strategic Plan: def par 16(c);
(e) the Gateway Park Development as a whole, or the tourist precinct, or the convenience precinct (as pleaded in par 7 of the SOC) individually, if constructed, would be a `regional business centre', a `major district centre' or a `district centre' within the meaning of the 1987 Strategic Plan, or are otherwise inconsistent with the 1987 Town Plan including the 1987 Strategic Plan, the 1995 Regional Framework, or the Master Plan: def pars 19 and 20.
12 The first respondent contends that, on the proper construction of the Master Plan, commercial development on the Airport Site was:
(a) to be in accordance with the preferred land uses identified in the zones described in s 12 of the Master Plan and not otherwise: def par 14(b)(i);
(b) to be consistent with the 1987 Strategic Plan only to the extent that the Master Plan specifically addressed the Airport Site in the manner pleaded in par 15(c)(ii) of its defence: def par 14(b)(ii).
13 The first and fourth respondents deny that the Master Plan is invalid as being beyond the approval power of the Minister for Transport and Regional Services (`the Minister').
14 The first respondent contends that:
(a) the cost of construction of all of the buildings the subject of its present concept proposals will not exceed $10m;
(b) the subject of its present consent proposal is not a major airport development relating to the Airport Site; and
(c) it does not require a major development plan approved under Div 4 Pt 5 of the Act before carrying out the proposed construction: def pars 25 - 28 inclusive.
15 The first respondent denies that the approvals granted under the Regulations were invalid and of no effect for the reasons alleged in pars 29 - 32 inclusive of the SOC.
16 The first respondent contends that it is lawful:
(a) to carry out bulk earthworks;
(b) to construct the building referred to in par 6(f) of the defence, where the cost of construction (excluding earthworks and other preparatory works) does not exceed $10m; and
(c) it is lawful to enter into a contract for the construction of a building for commercial, retail or tourism purposes without approval of a major development plan pursuant to Div 4 Pt 5 of the Act, provided the cost of construction of that building (excluding earthworks and other preparatory works) does not exceed $10m: def par 33(c).
17 Finally, the first and fourth respondents deny that the Gateway Park Development Proposal cannot be approved pursuant to Div 4 Pt 5 and that approvals cannot be granted under Div 5 Pt 5 of the Act and the Regulations.
SEPARATE HEARING OF ISSUES
18 The first and fourth respondents have sought, pursuant to O 29 r 2 of the Federal Court Rules, to have separate questions determined in advance of all the questions arising on a trial of the proceedings. Those questions are:
`1 Does the First Respondent "carry on trading or financial activities" within the meaning of s.32(1) of the Airports Act 1996 (Cth) ("the Act") by:-(a) having the building referred to in paragraph 6(f) of its Defence constructed for it on the Airport Site?
(b) subleasing that building (or any part of it) to an unrelated entity?
(c) having constructed for it the golf course referred to in paragraph 6(d) of its Defence?
(d) subleasing that golf course (or any part of it) to an unrelated entity?
2 If "yes" to any of Questions 1(a), (b), (c) or (d), upon the proper construction of the Act, are those trading or financial activities:
(a) related to the operation or development of the Brisbane Airport, within the meaning of s.32(1)(a) of the Act?
(b) incidental to the operation or development of the Brisbane Airport, within the meaning of s.32(1)(b) of the Act?
3 Does the "cost of construction" (within the meaning of s.89(1)(e) of the Act) of a new building include the cost of earthworks or other preparatory work which does not form part of the building structure, but which is carried out to enable the building to be constructed on the site?
4 Is constructing a new building, which is not wholly or principally for use as a passenger terminal, "major airport development" within the meaning of s.89 of the Act if the "cost of construction" within the meaning of s.89(1)(e) of the Act) of that building does not exceed $10 million?
5 Does the First Respondent contravene s.90(1) of the Act by having a building constructed for it without obtaining the approval of a major development plan pursuant to Division 4 of Part 5 of the Act, provided the "cost of construction" (within the meaning of s.89(1)(e) of the Act) of that building does not exceed $10 million?
6 If "no" to Questions 3, 4 and 5, upon the proper construction of s.90(1) of the Act, does the First Respondent contravene s.90(1) of the Act by having constructed for it a building, the "cost of construction" of which does not exceed $10m, as part of the development of that part of the Airport Site referred to in its Defence as "Gateway Park", in circumstances in which:
(a) if constructed, the total "cost of construction" of all the buildings the subject of that development would exceed $10 million; and
(b) the First Respondent has not obtained the approval of a major development plan for the construction of those buildings.
7 On the proper construction of the Master Plan referred to in the Statement of Claim and the Defence of the First Respondent:
(a) is commercial development on the Airport Site, including Gateway Park, required to be consistent with:
(i) the 1987 Town Plan?
(ii) the 1987 Brisbane Strategic Plan?
(iii) the hierarchy of centres in the 1987 Strategic Plan?
(b) is a "convenience centre" within the meaning of the 1987 Town Plan, including the 1987 Strategic Plan, the only type of shopping centre which may be constructed in the Business Zone on the Airport Site?
(c) is commercial development on the Airport Site, including Gateway Park, required to be consistent with the South East Queensland Regional Framework for Growth Management (as referred to in the Master Plan)?'
19 The applicants oppose the application on the basis of a lack of utility and the lack of a sufficient substratum of agreed facts to enable any issue to be properly determined.
QUESTIONS 1 AND 2
20 As can be seen from a consideration of the questions, the first two questions seek to cover the questions raised in paras 6 - 10 inclusive of the SOC (`the s 32 issue'). The questions raised in questions 3 - 6 inclusive seek to cover the questions raised in pars 23 - 28 inclusive of the SOC (`the need for an approved major development plan issue'). The seventh question raises the requirements of the Master Plan in respect of:
(a) the 1987 Town Plan;
(b) the 1987 Strategic Plan; and
(c) the 1995 Regional Framework.
21 The first respondent submits that there is a sufficient factual basis to determine the s 32 issue that there is an admission in par 6(f) of the defence that a building is to be built in the Gateway Park precinct and that there is an admission that work has commenced on the golf course referred to in par 6(d) of the defence. The difference is that the applicants do not accept that this is the full extent of the proposed development.
22 The applicants contend that the building and the golf course form part of the whole Gateway Park Development (as pleaded in par 7 of the SOC) and that their construction and subleasing as part of that development will amount to a substantial trading or financial activity within the meaning of s 32(1) of the Act. They contend that the activities comprising the construction of the building and the golf course cannot be divorced from the context in which they are taking place, and that there are, and remain, serious disputed questions of fact as to the context in which the activity will occur. Specifically, there are questions as to what is in fact to be constructed, over what period of time, the cost of that construction, the terms upon which the completed works are to be sub-let, and the benefits flowing to the first respondent under the proposed sub-leases.
23 In order to understand the s 32 issue, it is necessary to have regard to some provisions of the Act.
24 Section 32, so far as is presently relevant, provides:
`32 Airport-operator company must not carry on non-airport businessAirports other than joint-user airports
(1) An airport-operator company for an airport (other than a joint-user airport) must not carry on substantial trading or financial activities other than:
(a) activities relating to the operation and/or development of the airport; or
(b) activities incidental to the operation and/or development of the airport; or
(c) activities that, under the regulations, are treated as activities incidental to the operation and/or development of the airport.
.....
Offence
(3) A company commits an offence if:
(a) the company is subject to a requirement under subsection (1) or (2); and
(b) the company engages in conduct; and
(c) the company's conduct contravenes the requirement.
Penalty: 2,000 penalty units.
.....
Loan securities
(4) Subsections (1) and (2) do not apply to an airport-lessee company for an airport if the company acquired its airport lease or airport leases by way of the enforcement of a loan security.
Validity of transactions
(5) A contravention of this section does not affect the validity of any transaction.'
(Original emphasis)
25 An `airport-operator company' is defined in the Act to be an airport-lessee company or an airport-management company. An `airport-lessee company' means a company that holds an airport lease: s 5.
26 The allegation against the first respondent is that it contravenes s 32 because it is an airport-lessee company.
27 The Act provides that a person can only acquire one airport lease: s 16. In this context one of the apparent objectives of s 32 is to limit the business carried on by an airport-lessee company to the trading and financial activities related to or incidental to the operation and/or development of the relevant airport. That is, the company's business is to be the operation and/or development of the airport and no other. This is reflected in the protection provided to a loan provider forced to become an airport-lessee company upon the enforcement of a loan security over the lease: s 32(4).
28 The activities which are proscribed by s 32 are substantial trading activities other than activities relating to or incidental to the operation and/or development of the airport. The application of this provision requires consideration of:
(a) the meaning to be given to the phrase `substantial trading or financial activities' in the context of s 32;
(b) the meaning to be given to the phrase `the operation and/or development of the airport' in the context of s 32;
(c) the activities carried on or intended to be carried on by the airport operator company;
(d) whether the activities as found relate to or are incidental to `the operation and/or development of the airport' on the proper construction of that phrase; and
(e) whether the activities, if they do not relate to or are not incidental to the operation and/or development of the airport, are nonetheless `substantial trading or financial activities' on the proper construction of that phrase.
29 It is sufficient for present purposes to say that the Act makes provision for the development of airports. That provision centres around the development and approval of a Master Plan for each airport: Pt 5 Div 3 of the Act.
30 A Master Plan under the Act is required to contain certain information. Section 71 of the Act, so far as is presently relevant, provides:
`71 Contents of draft or final master plan(1) This section specifies the matters that must be set out in each draft or final master plan for an airport.
Airports other than joint-user airports
(2) In the case of an airport other than a joint-user airport, a draft or final master plan must specify:
(a) the airport-lessee company's development objectives for the airport; and
.....
(c) the airport-lessee company's proposals for land use and related development of the airport site, where the proposals embrace airside, landside, surface access and land planning/zoning aspects; and
.....
Note 2: Landside means the part of the airport grounds, and the part of the airport buildings, to which the non-travelling public has free access.'
(Original emphasis)
31 The Act provides for approval of a Draft Master Plan by the Minister: s 81. If the Minister approves a Draft Master Plan, it becomes the Final Master Plan (referred to herein as `the Master Plan') which comes into force at the time of the approval: s 83. Any Major Development Plan must itself be consistent with the Master Plan: s 94(5). Building approvals under regulations made under the Act are not to be granted unless the approval is consistent with the Master Plan: s 101(2); or in the case of a building activity which is a major airport development, unless the approval is consistent with an approved Major Development Plan: s 101(3).
32 The overall effect of the statutory provisions is that building works in the nature of development works on an airport are to be consistent with the development proposals approved by the Minister and contained in the Master Plan or a major development plan in force for the development.
33 In the context of s 32(1), `development of the airport', on one view, means development in accordance with the development proposals contained in the Master Plan or in accordance with a major development plan approved under Pt 5 Div 4 of the Act for that major development. This means that there is a factual question of whether or not the proposed activity, whatever that may prove to be, is related or incidental to the development proposals contained in the approved Master Plan for the airport.
34 For these reasons, the proposed questions 1 and 2 as drafted do not raise the real issues which arise for determination under the s 32 issue. Additionally, there is not a sufficient substratum of agreed fact to enable a useful answer to be given to any of the questions which arise under the s 32 issue. The proper answer to each of those questions depends on other and further facts which must be found or agreed.
QUESTIONS 3 - 5
35 Questions 3 to 5 inclusive raise for consideration the proper construction of s 89(1) of the Act. That sub-section, so far as presently relevant, provides:
`89 Meaning of major airport development(1) For the purposes of this Division, a major airport development is a development that is carried out at an airport site and that consists of:
(a) constructing a new runway; or
(b) extending the length of a runway; or
(c) constructing a new building wholly or principally for use as a passenger terminal, where the building's gross floor space is greater than 500 square metres; or
(d) extending a building that is wholly or principally for use as a passenger terminal, where the extension increases the building's gross floor space by more than 10%; or
(e) constructing a new building, where:
(i) the building is not wholly or principally for use as a passenger terminal; and
(ii) the cost of construction exceeds $10 million or such higher amount as is prescribed;
.....'
(Original emphasis)
36 The third question involves the proper interpretation of s 89(1)(e) of the Act. The question as framed seeks to limit the meaning of `a building' to the building structure, that is, to mean literally all of the componentry which goes to make up the fabric of the building as such. There are, in my view, two serious difficulties with this approach. The first involves disassociating the word from the phrase in which it appears, which is an incorrect approach to the construction of the section. The second is to apply a meaning which is not the ordinary and natural meaning of the word in any event.
37 In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, the Court said (at 396 - 397):
`... The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown [1996] 1 AC 543 at 561, a recent House of Lords decision, Lord Hoffmann said:"The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole."'
38 Section 89(1) is definitional. It concerns activity which constitutes `a major airport development' for the purposes of the Act. The relevant activity for the purposes of s 89(1)(e) is `constructing a new building'. The `cost of construction' in s 89(1)(e)(ii) is the cost of the activity which consists of `constructing a new building'. In order to answer the question whether the cost of earthworks and other preparatory works are included in the cost of construction for the purposes of s 89(1)(e)(ii), it is necessary to determine whether or not earthworks and other preparatory works are activities which fall within the phrase `constructing a new building' as it is used in s 89(1)(e) of the Act. The answer to that question may depend upon the answers to two factual questions: what was involved in the construction of the building? and, were earthworks and other preparatory works an integral part of that construction?
39 The way the question is framed seems to imply that earthworks and other preparatory works are separate and distinct from `constructing a new building'. There seems to be no compelling reason why that would be so. The `new building' with which s 89(1) is concerned is one constructed on the Airport Site which is not wholly or principally for use as a passenger terminal. It is not the construction of a building divorced from the land upon which it is situate. In any event, the ordinary and natural meaning of the word `building' is that it comprises not only the fabric of which it is comprised, but the land upon which it stands: Corporation of the City of Vancouver v Bishop of Vancouver Island [1921] 2 AC 384 (PC) at 390 - 391. If the word is to be given a narrower meaning which limits it to the fabric of the building as such, there remains a factual matter of some complexity as to when, in the construction of the foundations and footings and the provision of services to the building, the interference of the land to enable the building to be sited on and affixed to the land, itself forms part of the construction of such foundations, footings and services.
40 In my view, for the reasons given above, there are insufficient facts to answer the posed questions numbered 3 - 5 in any useful way.
QUESTIONS 4 - 7
41 Questions 4 and 5 are hypothetical. They ask if the requirement contained in s 89(1)(e)(ii) is not satisfied, the building activity comes within the definition of `major airport development' in s 89(1) or a contravention of s 90(1) of the Act if done without approval under Div 4 Pt 5 of the Act. Absent a finding as to the nature and extent of the development to be undertaken by the first respondent, it is not possible to determine the question as to whether what is proposed does or does not come within the operation of s 89(1)(e). For example, if, as the first respondent contends, it should be found that there is only to be constructed one building, the cost of construction of which does not exceed $10 million, then the issue falls to be determined in that context. If, however, it is found that the development includes two buildings, each to cost $8 million to construct, the issue will be whether, as a matter of construction having regard to s 23 of the Acts Interpretation Act 1901 (Cth), s 89(1)(e) is to be interpreted to include one or more buildings with a total cost of construction in excess of $10 million, or whether each building in the development is to be separately considered to determine the applicability of s 89(1)(e) to that building.
42 The Court will not `advise parties to actions upon their rights under a hypothetical state of facts, or give to them advisory opinions or give hypothetical decisions the effectiveness of which depends on varied states of facts which remain to be determined in the future': Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368 (FC) at 369 (see further the cases cited therein).
43 Question 6 is itself hypothetical and relies upon the existence of negative responses to questions 3, 4 and 5. It, too, is not an appropriate question to be dealt with under O 29 r 21 of the Federal Court Rules.
44 The proposed question 7 does not involve any factual question as to whether the development proposed to be undertaken by the first respondent on the Airport Site is consistent with the Master Plan in terms of the provision the Master Plan makes for land use zones within the Airport Site. Instead, question 7 asks whether, as a matter of construction, the Master Plan requires that land use zones, and in particular commercial development use of the land, be consistent with:
(a) the 1987 Town Plan;
(b) the 1987 Strategic Plan;
(c) the hierarchy of centres in the 1987 Strategic Plan; or
(d) the 1995 Regional Framework.
45 Question 7 is also concerned with the issue of whether or not a `convenience centre' within the meaning of the 1987 Strategic Plan is the only type of shopping centre which may be constructed within the Business Zone as it exists on the Airport Site.
46 Each of the sub-questions raised in question 7 are taken from pars 12, 14 and 16 of the SOC. Paragraph 14 of the SOC provides:
`14. On the proper construction of the Master Plan:(a) commercial development on the Airport Site, including Gateway Park, is to be consistent with the 1987 Town Plan, including the 1987 Strategic Plan;
(b) the type of shopping centre which may be constructed in the Business Zone on the Airport Site is a convenience centre within the meaning of the 1987 Town Plan, including the 1987 Strategic Plan.'
47 All that is required to determine the question is proof of the facts alleged in par 13 of the SOC, proof of the contents of the Master Plan and proof of each of the planning instruments pleaded in the SOC and identified in the proposed question.
48 The `Gateway Park' referred to in the proposed question is the `Gateway Park' identified in the Master Plan and pleaded in pars 12 and 14 of the SOC. The factual context does not stand in the way of a separate determination of question 7.
49 If this issue was determined as a separate issue, and if it was resolved in the way contended for by the respondents, it would remove as issues in the proceedings:
(a) the inconsistency of the proposed development with the Master Plan (pars 17 - 21 inclusive of the SOC);
(b) the invalidity of earthworks permits due to of inconsistency with the provision of the Master Plan (pars 29 - 32 inclusive of the SOC); and
(c) the inability to issue requisite approvals because of inconsistency with the Master Plan (pars 35 and 36 of the SOC).
50 If the issue was determined as contended for by the applicants, it will nevertheless leave for determination the issue of whether or not the Gateway Park Development (as pleaded in par 7 of the SOC) or any precinct of it, will be a `regional business centre' or a `major district centre' or `district centre' within the meaning of the 1987 Strategic Plan, and thereby inconsistent with the 1987 Town Plan, the 1987 Strategic Plan, the 1995 Regional Framework and the Master Plan (as alleged in pars 19 and 20 of the SOC and denied in pars 19 and 20 of the first respondent's defence).
51 Irrespective of the determination of the issue raised in the proposed question 7, there would remain the issues arising in respect of alleged illegality by virtue of s 32 of the Act (pars 8 - 10 inclusive of the SOC); the issue of the absence of an approved major development plan and the consequences flowing from that circumstance (pars 23 - 28 inclusive, 33 and 34 of the SOC); and the invalidity of the Master Plan as being incapable of being approved by the Minister (pars 21 and 22 of the SOC).
52 The remaining issues will not be resolved or substantially limited in respect of the materials necessary to determine the nature and extent of the proposals of the first respondent for the development of the Gateway Park precinct identified on the Master Plan and the cost of that proposed development. Whether or not those developments constitute a `centre' of a type provided for in one or more of the planning instruments relied upon by the applicants, it will involve nothing more than the application of those instruments, properly construed, to the facts as found should those instruments be found to be relevant under the Master Plan. Thus, resolution of question 7 may reduce the range of legal argument but not reduce the factual materials needed to be addressed in any event.
53 Because the proposed question 7 does not have the potential to finally determine the proceedings between the parties, there is a real risk that its piecemeal determination, including appeals, if any in respect of it, will delay the ultimate determination of the remaining issues and significantly add to the costs and expenses associated with the litigation. As construction work has commenced, final resolution of the entire matter is in the best interests of all parties concerned.
54 In Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1, Kirby and Callinan JJ (at par [168]), observed that the attraction of a trial of separate issues is often more chimerical than real, and that ultimately the alleged savings in time and expense are often illusory. In my view this is one such case as the single question capable of separate determination does not offer sufficient benefit to overcome the delay it will cause and will probably increase in the cost of the final determination of the remaining unresolved issues.
55 The application for determination of separate questions is refused. In those circumstances, it is appropriate that direction be made in order to advance the conduct of the matter.
56 The costs of the application and of the directions will be each party's costs in the proceedings.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. |
Associate:
Dated: 8 August 2003
Counsel for the Applicant: |
P Keane QC and D Clothier |
Solicitor for the Applicant: |
Minter Ellison |
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Counsel for the Respondent: |
G Gibson QC and T Sullivan |
Solicitor for the Respondent: |
Mallesons Stephen Jaques |
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Date of Hearing: |
2 July 2003 |
Date of Judgment: |
8 August 2003 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2003/839.html