[1992] FCA 284; (1992) 36 FCR 478

Town Planning - Covenant in lease from Commonwealth restricting use of land - Application to vary purpose clause - Whether variation approved by Supreme Court of the Australian Capital Territory consistent with land use policies established pursuant to legislative provisions - Whether Supreme Court should have required re-advertisement of proposed purpose clause - Whether purpose clause should have permitted only the use presently intended by applicant for variation - Whether Supreme Court erred in ordering objector to pay part of costs of Minister appearing in public interest.

City Area Leases Act 1936 (A.C.T.), s.11A

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), passim

Interim Territory Planning Ordinance 1988 (A.C.T.)

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

Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81

Tasker v Fullwood (1978) 1 NSW LR 20

Morpath Pty Ltd v ACT Youth Accommodation Group Inc. (1987) 16 FCR 325

Tekmat Investments Pty Ltd v Ward (1988) 81 ALR 278

Counsel for the appellant: Mr B. Tamberlin QC and Mr R. Darke

Solicitors for the appellant: Macphillamy Donald and Co.

Counsel for the first respondent: Mr M. Craig QC and Ms C. Plevey

Solicitors for the first respondent: Sly and Weigall

Counsel for the second respondent: Mr R.E. Williams QC and Mr Chin

Solicitors for the second respondent: ACT Government Solicitor

1. The orders made by the Supreme Court of the Australian

Capital Territory be varied by setting aside the order that

the Minister's costs be paid as to 20 per cent. by the

applicant and as to 80 per cent by the objector and

substituting therefor an order that the Minister's costs be

paid by the applicant.

2. Otherwise the appeal be dismissed.

3. The appellant pay the respondents' costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal from orders made by the Supreme Court of the Australian Capital Territory (Higgins J.) on 18 October 1991. The orders, which are provisional only, were made upon an application to the Court pursuant to s.11A of the City Area Leases Act 1936 (ACT) which, at the relevant time, enabled a lessee of land in the Australian Capital Territory to which that Act applied to make an application to the Supreme Court to vary any provision, covenant or condition of a lease in relation to the purpose for which the land subject to the lease might be used. In passing it should be mentioned that the City Area Leases Act has been repealed and its provisions replaced in relation to what is referred to as "Territory Land" by the Land (Planning and Environment) Act 1991 (ACT). The repeal was effected by the Land (Planning and Environment) (Consequential Provisions) Act 1991 (ACT), the relevant provisions of which came into operation on 2 April 1992: see ss.24 and 26 and Schedule 2.

2. The application was made by the first respondent ("the respondent") to the appeal because it wishes to use certain land at Fyshwick for the purpose of a retail store. That is not a purpose for which the land could be used under the lease which provided:

"3. THE LESSEE FURTHER COVENANTS WITH THE

COMMONWEALTH as follows:

....

(d) To use the premises only for the purpose of

(i) service trades;

(ii) storage processing packaging and wholesale

distribution of goods;

(iii) any manufacturing process

(iv) sale of goods manufactured repaired or assembled

on the premises

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 grit oil or

otherwise; and

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;"

3. The principal order made by his Honour on 18 October 1991 directed that the provisions of the lease be varied by substituting for clause 3(d) of the lease the following clause:-

"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 500m2 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."

4. Unless this order is set aside or varied on appeal, the respondent will be able to use the land for the purpose of a retail store so long as it is not of a kind which the new purpose clause would exclude.

5. The submissions relied upon by the appellant were:-

1. The application by the respondent was inconsistent with the

National Capital Plan, that Plan having been approved by the

appropriate Commonwealth Minister and notification of that

approval having been published in the Commonwealth of Australia

Gazette on 21 December 1990; see s.21 of the Australian Capital

Territory (Planning and Land Management) Act 1988 (Cth) (the

inconsistency argument).

2. The amended application to which his Honour gave effect when he

made his orders on 18 October 1991 had not been advertised as

required by subsec.11A(4) of the City Area Leases Act (the

advertising argument).

3. It was not open to his Honour to order a variation of the purpose

clause that permitted any purpose other than that about which he

had had evidence; in other words any variation should have

permitted use of the land only as a retail store selling household

goods, that being the use which the respondent wished to make of

the land (the variation argument).

4. His Honour was in error in ordering the appellant to pay 80 per

cent of the costs of the second respondent, the Minister for

Environment Land and Planning (ACT), of the proceedings at first

instance and should have ordered the respondent to pay the

appellant's costs of those proceedings (the costs argument).

6. In order that these submissions may be understood, it is necessary to refer to some of the evidence, to certain legislation and to a number of planning instruments which have been in force in the Australian Capital Territory from time to time.

7. The respondent is one of a group of companies which establishes and promotes Harvey Norman Discount Stores. The stores sell "Homemaker" goods by retail. Such goods comprise a range of products which are used in and about dwelling houses and include furniture, furnishings, white goods and garden supplies. The range is a wide one but does not include food. The Harvey Norman stores are franchised. The respondent does not retail goods itself. It wishes to establish a Harvey Norman store in Fyshwick on the land which is the subject of the lease.

8. The lease was granted by the Commonwealth of Australia on 25 September 1989 for a term of 99 years commencing on 28 June 1988. The land which is the subject of the lease is situated on the corner of Ipswich and Barrier Streets, Fyshwick. The nature of the development now existing in Fyshwick is described in a plan formulated by the National Capital Development Commission ("the Commission") pursuant to the provisions of the National Capital Development Commission Act 1957. It is entitled "The Fyshwick Policy Plan" ("the Fyshwick Plan"). It was published in September 1988.

9. It appears from that Plan and from a previous draft published in June 1987 that the Fyshwick Industrial Estate was established in 1954 to service Canberra's growing need for activities related mainly to the construction industry, leases being granted for manufacturing and storage purposes, government depots and the like. From the mid 1960's, however, there had been a steady increase in the number of businesses engaged in retailing motor vehicles, white goods, furniture, hardware and electrical goods so that Fyshwick assumed an increasing role as a service/retail centre. By 1985, activities other than manufacturing, processing and warehousing accounted for more than 50% of all businesses in Fyshwick. A wide range of activities had emerged, some of these activities not conforming with existing lease purpose clauses. Fyshwick had thus changed from being a purely industrial/service area to one which included a wide range of retail uses many of which had evolved from associations with service industries. Those uses included specialized retail sectors adapted to the lower cost infrastructure and types of buildings prevalent in the area.Furniture, discount retailing, white goods, small machine retailing and sports and ski ware were typical of the types of stores which were to be found. The Fyshwick Plan said (p 4) that, from 1982 to 1987, the retail sector grew from 45,000 square metres to 72,000 square metres of gross floor area.It may be noted that the appellant, which was the objector in the proceedings in the Supreme Court, leases land at Fyshwick to companies which carry on the business of retail stores which sell furniture.

10. In July 1984, four years before the Fyshwick Plan, the National Capital Development Commission published "the Metropolitan Canberra Policy Plan Development Plan" ("the Metropolitan Plan"). That Plan recognised the wide range of activities that were in fact being carried on in Fyshwick but said (p 63) that the emergence of Fyshwick as a retail centre had not been intended. The Plan further stated that it grew in response to weak purpose clauses and the non-enforcement of purpose clauses and that, in 1980, it attracted about 11 per cent of Canberra's retail expenditure, gaining expenditure from all districts in response to the retail opportunities available there. In 1982, it was said, 65 per cent of Fyshwick's floor space was in the retailing of clothing, furniture and household appliances, these activities generally requiring single-level and low-rental floor space. It was said that, from a metropolitan planning viewpoint, the location of such floor space at Fyshwick was not desirable. It was not central to the current and future population distribution and had led to a higher level of retail floor space in Canberra than was intended. Although it was recognised that there was a demand for low-rental space for the types of retail activities carried out in Fyshwick, it was said that that demand should be met at locations more central to the established population.

11. The Policy Plan was formulated in Chapter 6 (pp 171-206). The chapter was introduced by a statement which explained that policy plans comprise statements of planning objectives and policies, the purpose of a policy plan being to focus attention on the Commission's intention to initiate, encourage or control land use changes in an area; see p 171. Industry was dealt with at p 185. Amongst other things it was there said that industrial estates had been established at Fyshwick, Mitchell and Hume. These estates were to cater for manufacturing, processing, warehousing, storage and regional service trades activities. It was said that the industrial areas as developed had a higher level of office and retail activity than was intended. Under the heading "Policy", it was stated that, in order to preserve industrial land for industrial purposes, and to ensure the implementation of planned metropolitan retail, office and industrial centres, retail and office uses not ancillary to, or directly related to, the industrial or service trade function carried out on a site would not receive planning approval. It was proposed that, for the foreseeable future, industrial development would be located in the existing main industrial areas of Fyshwick, Mitchell and Hume and in the Canberra Technology Park in Bruce which was to be developed to provide for high technology industrial development.

12. As appears from the draft of the Fyshwick Plan published in June 1987, the Commission had, in October 1985, been requested by the Minister for Territories to review its policies for Fyshwick by examining the role of Fyshwick and, within the metropolitan context, to indicate how the perceived planning and lease administrative problems arising from the fact that Fyshwick then provided a range of services in industrial, retail and other areas could be resolved. That review, which commenced in February 1986 and culminated in the Fyshwick Plan published in September 1988, resulted in the Commission determining new land use policies for Fyshwick. Under the heading, "The Future Role of Fyshwick", the Fyshwick Plan (p 6) said that, as Canberra and Queanbeyan grew, the corridor between the two centres would become increasingly more significant. This growth would reinforce the industrial, service and retailing roles of Fyshwick (emphasis added).

13. The aims of the Policy Plan were stated (p 8) to be to -

". provide for the development of Fyshwick as the main,

centrally located service, lower order retail, warehousing

and specialised industrial and services area serving Central

Canberra;

. recognise the need to provide a location for specialised

service and retail functions which serve the metropolitan

area as a whole;

. provide retail and service facilities, in a central

location, aimed at serving the needs of the local

workforce."

Under the heading "Land Use", which was in turn under the heading "Policy Plan", the following statements were made (p 10):-

"Land Use

Lease purpose clauses for new leases and for existing leases being

varied will be based upon the following land use policies

expressed according to category of use. In general, it is

envisaged that lease purpose clauses can fall within one or more

categories as described in the Primary or Secondary grouping of

land uses. Provided parking requirements and other planning

performance criteria are met, there is no limitation on the rights

of lessees to apply for variation of lease purpose clauses from

one to another of the categories.

Primary Land Uses

The primary land use policy for the area of Fyshwick covered by

this plan is Industry. This includes Service Trades,

Manufacturing and Processing Industries, Extractive Industries and

Offensive Industries. The Policy Plan map reflects this primary

policy.

....

Secondary Land Uses

Retail (Non-Food)

The retailing of any non-food goods, including personal service

establishments, may be carried out within this category. No limit

is to be placed on the total amount of retailing in the area;

Retail (Food)

Other than at an identified service centre, it is not appropriate

that large scale food retailing be permitted in Fyshwick. It is

intended that food retailing in Fyshwick, including Eating and

Drinking Establishments, shall be of a scale which services the

local area. The retailing of food will be limited to areas not

exceeding 200m2 GFA per lease except where located within a

dedicated service centre;

Offices/Non-Retail Commercial Uses

. Ancillary Offices: ....

. Small Scale Service Offices: These offices shall primarily

provide non-retail commercial services to other activities

in Fyshwick. Uses within this category include small

offices, professional suites, health care consulting rooms,

banks and cooperative societies.

Small scale service offices will normally be limited to a

maximum of 500m2 per lease providing the Commission is

satisfied that there is a demonstrated demand for the space.

The area of any building identified for offices within this

category should be of a scale and configuration appropriate

to its intended role.

...."

14. Relevant provisions of the Australian Capital Territory (Planning and Land Management) Act ("the Planning Act") came into force on 31 January 1989. By s.5 the Act established the National Capital Planning Authority ("the Authority"). Its functions included the preparation and administration of a National Capital Plan ("the Plan"); see s.6. Section 9 provided that the object of the Plan was to ensure that Canberra and the Australian Capital Territory were planned and developed in accordance with their national significance. Section 10 provided for the matters to be covered in the Plan. These included the setting out of the general policies to be implemented throughout the Australian Capital Territory including policies of land use in which was comprehended the range and nature of permitted land use. Section 11 of the Planning Act was as follows:-

"11.(1) An enactment that is inconsistent with the Plan has no

effect to the extent of the inconsistency, but an enactment shall

be taken to be consistent with the Plan to the extent that it is

capable of operating concurrently with the Plan.

(2) The Commonwealth, a Commonwealth authority, the

Territory or a Territory authority shall not do any act that is

inconsistent with the Plan."

"Enactment" was given the same meaning as it had in the Australian Capital Territory (Self-Government) Act 1988 (Cth) (s.4). It is unnecessary to refer to the detail of that definition but reference may be made to ss.4 and 34 and to Schedules 2 and 3 of the Self-Government Act.

15. Section 14 made provision for the preparation by the Authority of a draft Plan. There were provisions for public consultation in s.15. Section 16 provided that, after the Authority had made the draft Plan available for public inspection, had consulted with the Territory planning authority and reported to the Commonwealth Minister on the consultation and the views expressed by that authority, it might apply to the Minister to certify the draft Plan under that section while it was being further considered. Subsection 16(2) empowered the Minister to certify the draft Plan. Subsection 16(4) provided for the period during which the certification of the draft Plan would remain in force. Section 17 provided that, so long as the draft Plan was certified, s.11 applied as if the Plan, i.e. the final Plan, were in effect. Sections 18, 19 and 20 provided for further steps to be taken before the Plan itself was to come into force. Section 21 provided:

"(1) Where the Minister approves the draft Plan, the

Minister shall publish notice of the approval in the Commonwealth

Gazette and specify the address where copies of the Plan may be

inspected and bought.

(2) The Plan takes effect on publication of the notice of

approval."

16. By s.54, a provision within Part IX, the National Capital Development Commission Act was repealed.

17. Part X contained transitional provisions. Division 3 of that Part dealt with the continuation in effect of policies relating to the planning and development of the Australian Capital Territory that had been established by the Commission under the National Capital Development Commission Act (referred to as "NCDC policies"). Sections 62 and 64 in Division 3 were as follows:-

"62. Where:

(a) before the commencing day, an NCDC policy was in

published form and had been notified in the

Commonwealth Gazette; and

(b) the policy was in operation immediately before that

day;

the policy continues in effect, subject to sections 65 and 66.

64. During the transition period, the Authority, the Territory

or a Territory authority shall not do any act that is inconsistent

with an NCDC policy while it is in effect under this Part."

Section 65 provided for the variation or revocation of an NCDC policy during the transition period. Section 66 provided:

"66.(1) If:

(a) at the end of the transition period, an NCDC policy,

or part of such a policy, is still in effect;

(b) the policy, or that part of the policy, is such that

it could be part of the National Capital Plan; and

(c) either House of the Parliament, within 6 sitting days

of that House after the end of the transition period,

passes a resolution that the policy, or that part of

the policy, is to become part of the National Capital

Plan;

the policy, or that part of the policy, becomes part of the

National Capital Plan, and may be varied or revoked accordingly.

(2) On the day after the last day on which a resolution

could be passed as described in paragraph (1)(c), an NCDC policy,

or part of such a policy, that is still in effect and has not

become part of the National Capital Plan under subsection (1)

shall be taken to be part of the Territory Plan, and may be varied

or revoked accordingly."

18. Reference should also be made to s.25 of the Planning Act, a provision within Part IV, a Part which came into force on 11 May 1989. That section provided that the Legislative Assembly for the Australian Capital Territory should, as soon as practicable, make laws for establishing a Territory planning authority and for conferring functions on the authority, including the functions of preparing and administering a plan in respect of land, not inconsistent with the National Capital Plan. At the time of his Honour's judgment a Territory planning authority had not been established. However, the Interim Territory Planning Ordinance 1988 (ACT), the relevant provisions of which came into operation on 31 January 1989, had provided for the establishment of an authority by the name of the Interim Territory Planning Authority with power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions under the Planning Act. Section 60 of the Planning Act provided that, until the establishment of the Territory Planning Authority under s.25, references in Part X of the Planning Act to the Territory planning authority were to be read as references to the interim authority established by the Interim Territory Planning Ordinance.

19. On 30 January 1989, the day before Part X of the Planning Act came into force, there was published in the Commonwealth of Australia Gazette a notice by the then Minister of State for the Arts and Territories that, for the purposes of s.62 of the Planning Act, the policies of the Commission set out in the Schedule to the notice were in operation and in published form. The Schedule included both the Fyshwick Plan and the Metropolitan Plan. It follows that both plans were policies for the purposes of s.64. However, it is to be observed that s.64 applied only during "the transition period". That expression was defined in s.56 to mean the period starting on the commencing day and ending on the day declared under s.57. The "commencing day" was defined in s.56 as the day on which Part X commenced, i.e. 31 January 1989. Section 57 provided that, when the Governor-General was satisfied that the National Capital Plan sufficiently covered the Territory, he should, by Proclamation, declare that the transition period was to end on a day specified in the Proclamation. Originally the day specified was not to be later than one year after Self-Government Day, i.e. one year after 11 May 1989. The Planning Act was, however, amended by the Australian Capital Territory (Planning and Land Management) Amendment Act 1990 (Cwth). Although that Act was not assented to until 18 December 1990, s.2 provided that it was to be taken to have commenced immediately after the commencement of s.57 of the Planning Act, i.e. 31 January 1989. Section 3 of the amending Act substituted the period of 2 years for the period of one year provided for in subsec.57(2) of the Planning Act. On 6 March 1991, there was published in the Commonwealth of Australia Gazette a notice dated 27 February 1991 and signed by the Governor-General declaring that the transition period provided for in the Planning Act would end on 12 March 1991. It follows that s.64 of the Planning Act ceased to have any relevance to the present problem some seven months prior to the making of his Honour's orders.

20. That is not, however, so of s.62 of that Act. As mentioned, both the Metropolitan Plan and the Fyshwick Plan were notified in the Commonwealth of Australia Gazette on 30 January 1989. So both continued in effect but subject to ss.65 and 66, sections to which reference has already been made. It is to be observed that s.65, like s.64, only operated during the transition period.

21. The draft National Capital Plan was published by the Authority in March 1990. Pursuant to subsec.16(2) of the Planning Act, the appropriate Commonwealth Minister declared that the draft Plan was certified. Consequently, s.11 of the Planning Act was to apply as if the final Plan were in effect (see s.17 of the Planning Act).

22. While the draft Plan provided for continued urban development within the Territory essentially along strategic lines consistent with the Metropolitan Plan, it did not, as his Honour observed, make any variation, express or implied, to the Fyshwick Plan. Paragraph 4.9 in Chapter 4 in Part Two of the draft Plan dealt with Industrial Areas but the detail of what is there written is not relevant to the present problem. Part Three of the draft Plan recognised that much of its content represented a continuation of planning policies established by the National Capital Development Commission and which had been in force in Canberra for some time. In that Part the following statement also appeared -

"The Interim Territory Planning Authority in this period will

continue to have responsibility for:

a) the administration of NCDC policies that were approved and

gazetted in accordance with Section 62 of the (Australian

Capital Territory (Planning and Land Management) Act,

including those which have been formally varied by the

Minister or the Executive in accordance with the provisions

of the Act. The exception is where policies have been

revoked wholly or partly through a process of being

superceded by the principles and policies contained in this

certified draft Plan. Policies affected in this way are

listed at Appendix C.

b) ...."

Appendix C referred to the Schedule to the notice published in the Commonwealth of Australia Gazette of 30 January 1989 of policies of the Commission that were then in operation and in published form and nominated relevant policies referred to in the draft Plan and those used for the drafting of Principles and Policies of that Plan. There was no express reference in Appendix C to the Fyshwick Plan.

23. The application made to the Supreme Court was commenced by notice of motion dated 13 December 1989. The motion was heard on 27, 28 and 29 August, 31 October and 1 and 2 November 1990. The principal reasons for judgment were delivered on 18 December 1990 three days before the publication in the Commonwealth of Australia Gazette on 21 December 1990 of notice of the appropriate Commonwealth Minister's approval of the National Capital Plan which replaced the draft Plan. By virtue of s.21 of the Planning Act, the National Capital Plan took effect on that day. His Honour thought, correctly in our opinion, that the proposed purpose clause would have been regarded as inconsistent with the Metropolitan Plan if the relevant land use policies for Fyshwick were to be found within that Plan. His Honour, however, concluded, again correctly in our opinion, that the relevant land use principles were to be found not in the Metropolitan Plan but in the Fyshwick Plan published in September 1988. As has already been mentioned, his Honour further concluded that the draft National Capital Plan published in March 1990 made no variation, express or implied, to the Fyshwick Plan. He continued -

"It may be concluded, therefore, that nothing in the current

Plans prevents the proposal of the (respondent) from being

approved by the ITPA. It also follows that, at least prima

facie, the proposal is not prevented, by reason of conflict

with a current NCPA, ITPA or NCDC policy from being regarded

as a 'reasonable user' of the land."

The references to NCPA, ITPA and NCDC are references respectively to the National Capital Planning Authority, the Interim Territory Planning Authority and the National Capital Development Commission.

"In September 1988, the Fyshwick Policy Plan was issued.

That is now the officially gazetted Plan for Fyshwick. It

was submitted that this Plan was inconsistent in some

respects with the Metropolitan Plan of 1984. Both were

notified in the Gazette on 30 January 1989. Mr Tamberlin,

QC, for the objector, submitted that this inconsistency

should not be resolved in favour of the later Plan,

presumably because of this simultaneous notification.

Certainly, the submission that the later Plan is subordinate

to the former in time cannot be supported. I do not

consider that notification of the Plans was intended to or

could have altered the meaning and effect the Plans had

before such publication. It was intended merely to bring

those Plans within and give them status under the (Planning

Act). Accordingly, insofar as there is an inconsistency

between the 1984 Metropolitan Plan and the 1988 Fyshwick

Policy Plan, the latter will, in my view, prevail. It may

be added that the specific Fyshwick Plan would, in any

event, be expected to be the primary and dominant policy for

Fyshwick rather than the more general Metropolitan Plan."

25. The parts of his Honour's judgment which we have quoted were the subject of challenge before us. It is clear, however, from what has been said above that the object and purpose of the review which led to the promulgation of the Fyshwick Plan was to formulate new land use policies for Fyshwick to replace those set out in the Metropolitan Plan. That objective and purpose was achieved by the Fyshwick Plan. The circumstance that the Metropolitan Plan was specified in the Schedule to the notice published on 30 January 1989 did not have the effect of giving primacy to the land use policies for Fyshwick set out in that Plan over those set out in the Fyshwick Plan. Further, as already mentioned, the National Capital Plan came into force three days after his Honour's reasons were published. For reasons which we shall give in a moment, the publication of that Plan reinforced the conclusion to which his Honour had come that the Fyshwick Plan remained the source of the relevant land use policies for Fyshwick. Before we come to those reasons, however, we need to mention some other matters.

26. His Honour, having concluded that the proposed development was a reasonable user of the land and was prevented by the then current purpose clause of the lease, went on to consider whether it was in the public interest to approve the proposed variation. The notice of motion had sought the amendment of clause 3(d) of the lease so that it would read:-

"To use the premises only for the purposes of:

(i) retail (excluding supermarkets and the sale of food and

drink)

(ii) industry (other than hazardous or noxious industry) and for

purposes subsidiary to such industry

(iii) small scale service offices."

27. His Honour found difficulties with the form of the proposed variation. He thought that it would not be in conformity with the Fyshwick Plan to approve clause 3(d)(iii) which would have made the use of the land for small scale service offices a lawful use without limitation as to the area which might be so used. He thought that the proposed clause 3(d)(ii) was more objectionable because it might attract the application of s.8A of the City Area Leases Act. Subsection 8A(2) provided that, subject to the section, land to which it applied should not be used, and the lease of the land should not be taken to authorise the land to be used, for the sale of goods by retail. The land to which s.8A applied was specified in subsec.(1). In short, the specified land included land the lease of which provided that it could be used for the purpose of "an industry". His Honour thought that s.8A might operate upon par (ii) of the proposed purpose clause so as to prevent the use of the land for retail purposes. To a similar effect as subsec.8A(2) was para.8A(3)(a). On the other hand, subsec.8A(4) did permit some retail use of land but not to a sufficient extent to encompass the proposed Harvey Norman development. He expressed no concluded view upon these matters but stood the matter over to enable submissions to be made.

28. The matter came back into his Honour's list on 15 February 1991. He delivered supplementary reasons for judgment on 19 March 1991. In the course of these reasons, his Honour referred to the coming into force on 21 December 1990 of the National Capital Plan. He referred to certain of its provisions and said he was satisfied that the approval of the final plan did not require any alteration to the conclusion which he had reached on 18 December 1990 so that his principal conclusions were not affected.

29. A reading of the National Capital Plan discloses, in our opinion, that its notification in the Commonwealth of Australia Gazette overtook some of the matters which had been dealt with by his Honour in relation to the inconsistency argument. The position was much clearer after the Plan came into force than it was before. That is because of two factors. Firstly, the Plan made it clear that the Fyshwick Plan was not affected by it. Secondly, it made clearer than did the draft Plan that the Metropolitan Plan was substantially affected by its provisions. It is necessary to refer shortly to these parts of the Plan. At p 7 it is said that the Plan sets out a wide range of permitted land uses for each Land Use Category. Following p 14 is a document headed "General Policy Plan - Metropolitan Canberra". Industrial centres are indicated by purple horizontal hatching. One of the indicated industrial centres is Fyshwick. Then on p 34 it is said that Canberra's industry had been accommodated in industrial estates at Fyshwick, Mitchell, Hume and Bruce and in the area immediately west of Oaks Estate. The location of industry within estates, the placement of these estates where they contribute to overall transport efficiency, and the avoidance of haphazard industrial location throughout the Urban Areas, were said to have contributed to the structure and character of Canberra's development. In the next paragraph is stated the need for the establishment of further industrial estates within the next two to three years. Clause 4.4 (p 35) specifies policies for Urban Areas. In subpara. (e) it is said that industrial development is to be located in the main industrial areas of Fyshwick, Mitchell, Hume and Bruce.

30. Part Two of the Plan is entitled "Administration and Implementation". This deals with a number of matters including the effect of the Plan, its relationship to the Territory Plan, and gazetted policies of the Commission. Under this latter heading it is said (p 74) that Appendix C sets out details of policies which are incorporated wholly within the Plan or which are superseded by the Plan and therefore revoked. Details of policies which are only partly incorporated in the Plan and are therefore partly still in effect are also included. The Appendix finally makes reference to the residue of policies not affected by the Plan. Appendix C commences at p 21 of the Appendices. Section 1 deals with policies which are wholly revoked and is not relevant for present purposes. Section 2 deals with policies which are revoked in part. Item 2.1 is the Metropolitan Plan dated July 1984. It is said (p 23), inter alia, that that Plan is revoked in respect of its broad policies of land use. Section 3 deals with the balance of Commission policies gazetted at January 1989. These are the policies which are unaffected by the Plan. They include the Fyshwick plan; see p 31 of the appendices.

31. It is apparent that the coming into force of the National Capital Plan has made the inconsistency argument much more difficult for the appellant. The strength which the argument had stemmed from statements made in the Metropolitan Plan which indicated the Commission's view on how Fyshwick should develop. In particular, it was said that, from a metropolitan planning viewpoint, the location of floor space for the retailing of clothing, furniture and household appliances at Fyshwick was not desirable. It was not central to the current and future population distribution and had led to a higher level of retail floor space in Canberra than was intended. The Metropolitan Plan went on to say that, in order to preserve industrial land for industrial purposes and to ensure the implementation of planned centres, retail and office uses not ancillary to, or directly related to, the industrial or service trade function carried out on a site, would not receive planning approval.

32. The National Capital Plan revoked the Metropolitan Plan in respect of the broad policies of land use stated therein. It is true that that expression has a degree of uncertainty about it and it is also true, as senior counsel for the appellant submitted, that, if the matter is looked at broadly there is not any significant difference between the two policies, i.e. the Metropolitan Plan and the National Capital Plan, in relation to industrial areas or centres. There is perhaps a difference of emphasis in that there is not to be found in the National Capital Plan the statements about the undesirability of retailing activities in industrial centres which are to be found in the Metropolitan Plan. But subject to that matter, there is something to be said for the view that the National Capital Plan has not effected any substantial change in the position which existed at the time his Honour considered the matter. In our opinion, however, those considerations are not the most important. The National Capital Plan left unaffected the Fyshwick Plan. It did not incorporate it, but it did not touch it so that, whatever the effect of the National Capital Plan on the Metropolitan Plan was, the Fyshwick Plan continued. That was the effect which s.62 of the Planning Act had. The critical provisions of the Fyshwick Plan are in the passages we have quoted from p 10. It is to be noted that there are "Primary Land Uses" and "Secondary Land Uses", but when one considers the terms of what is said under these headings, one does not discern that the retail purposes which are permitted are intended in any sense to take second place to the industrial purposes which are referred to under the heading "Primary Land Uses".

33. It will be recalled that the draft National Capital Plan made no express reference to the Fyshwick Plan. The express reference to it in Appendix C to the National Capital Plan and the absence from the National Capital Plan of statements about the undesirability of retail development in Fyshwick leads, in our opinion, to the conclusion that retailing activity in Fyshwick was an activity which, notwithstanding the fact that the Fyshwick area was to be an industrial centre, was well within the intended use of land at Fyshwick. The statement in Appendix C of the National Capital Plan that the Metropolitan Plan was revoked in respect of its broad planning policies takes on more significance when one takes into account the matters to which we have just referred. Statements such as were made in the Metropolitan Plan about the undesirability of retail development in industrial areas can the more readily be seen in this context as statements of broad policies of land use.

34. In all these circumstances we have reached the conclusion that the proposed use of the land for retail purposes does not conflict with any relevant planning policies or with any provision of the Planning Act, particularly having regard to s.62. We would, therefore, reject the submission of counsel for the appellant that the proposed use is not a lawful one. That conclusion disposes of "the inconsistency argument".

35. The next submission of counsel for the appellant ("the advertising argument") was that his Honour fell into error in not requiring the advertising of the amended notice of motion which, it was said, sought a purpose clause materially different from that originally advertised. In a sense, that submission encounters an initial problem. There was no amended notice of motion seeking a variation of the purpose clause in terms of that substituted by his Honour's order of 18 October 1991. The respondent had sought a purpose clause which was in terms quite different from the variation which his Honour eventually approved. The absence of an amended notice of motion was not a matter which was the subject of consideration during the argument before us. As his Honour did not consider further advertisement necessary, he saw no reason to require an amended notice of motion to be filed. In the view we take of the matter, nothing turns on it.

36. His Honour had raised the effect of s.8A of the City Area Leases Act of his own motion in the reasons for judgment which he published on 18 December 1990. The matter was the subject of further argument on 15 February 1991 and, in the supplementary reasons for judgment delivered on 19 March 1991, his Honour repeated the earlier concern he had especially about the effect of s.8A on the proposed clause 3(d)(ii) as it appeared in the notice of motion. He concluded that the application before him should not be granted in its then form. Both the proposed clauses 3(d)(ii) and 3(d)(iii), in his opinion, required alteration. As his Honour said, that raised the question whether the Court had power to do otherwise than grant or refuse the relief which had been sought and advertised shortly after the notice of motion was filed. This is not a matter which concerns us because it is not the subject of any submission. But it should be mentioned that, after reference to some authorities, his Honour concluded that he had the usual powers of amendment which were conferred on the Supreme Court on the hearing of a notice of motion. As he said, the power was to be exercised with due regard for the legislative scheme provided for in s.11A of the City Area Leases Act. The relevant provision of s.11A is to be found in subsec.(4). It provides that the applicant shall file with the Registrar of the Court a notice of motion together with the affidavit in support and shall, within the time limited by the subsection, serve a copy of the notice and affidavit on the Minister and publish the notice in the Gazette and a newspaper circulating in the Territory.

"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.

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.

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. His Honour went on to refer to a number of authorities including Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242 where Stephen J. said (pp 251-2):-

"This section (s.22 of the City of Brisbane Town Planning

Act 1964-1971 (Q.)) secures the attainment of two important

goals. It provides the council with the views of those who

oppose an application; written grounds of objection will be

before it, supported by relevant facts and circumstances and

it will thus be relieved of the special burdens associated

with decision-making when only one side of the argument is

known. It also provides objectors with an opportunity both

to make their views known and, if their objections are

unavailing, then to appeal to the Local Government Court

against the proposed decision of the council.

Each of these goals depends for its attainment upon the

giving of public notice of an application and the importance

which the legislation attaches to this is evident from the

care with which the precise modes of giving that notice are

prescribed.

The section requires that the advertisements by which public

notice is given 'shall set out particulars of the

application'. These words should, I think, be given a

meaning consistent with the important role played by these

advertisements; unless adequate particulars are advertised

potential objectors will scarcely be able to comply with the

requirement of s.22(1) that objections must set out 'the

grounds of objection and the facts and circumstances relied

on by the objector in support of those grounds'. A

consequence will be that the council will be deprived of the

benefit of worthwhile objections when considering an

application.

Moreover, unless adequate information is contained in

advertisements not only will effective objection be rendered

difficult but the very need to object may not be

sufficiently appreciated; a failure to object within the

seven days or longer permitted by the section produces

serious consequences since the right of appeal to the Local

Government Court conferred by sub-s.(3) is limited to those

who have 'duly objected'. Accordingly inadequacy of public

notice renders nugatory the twin purposes of s.22, of

assisting the council to fulfil its task as a responsible

planning authority and of providing those who may be

affected by the granting of applications with opportunity to

exercise their statutory rights of objection and appeal."

39. There was no submission to us concerning his Honour's conclusions as to the operation of s.8A of the City Area Leases Act so that it is unnecessary for us to consider that aspect of the matter. What needs to be considered, however, is a submission that his Honour, after he decided to depart from the form of the clause contained in the notice of motion, should have required the new clause to be advertised.

40. Higgins J. said that the question was whether there was such a material difference between the relief sought and that which it was 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 were ultimately made. His Honour then considered whether there was any material difference between what was then proposed and what had been advertised and concluded that there was not. He said he proposed to grant the application but in an amended form and directed the respondent to bring in minutes of the proposed order.

41. The matter came back into his Honour's list on 7 August 1991 when he heard further argument on the form of the order and upon costs. He delivered judgment in the matter on 18 October 1991 when, as earlier said, he made the orders now under appeal.

42. We think there is a question whether it is correct to say that the requirement of subsec.11A(4) of the City Area Leases Act is truly mandatory. If it were, then we think that there was no course for his Honour to adopt other than to direct that the proposed new purpose clause be advertised. The question whether a statutory provision is mandatory or directory is often a difficult one. There are a great many authorities on the question. They are conveniently collected by D.C. Pearce in Statutory Interpretation in Australia, 3rd ed. (1988) in Chapter 11, pp 196-214, particularly, so far as the present problem is concerned, in paras (11.12)-(11.23), pp 203-211.

43. In Victoria v. The Commonwealth [1975] HCA 39; (1975) 134 CLR 81 Stephen J., at p 179, said:

"A directory construction will not assist in securing validity

unless, despite the non-compliance which is the occasion for

invoking that construction, there may nevertheless be seen to be

substantial compliance with the general object at which the

statutory provision aims. Sometimes the stipulation which has not

been complied with is, in its context, so relatively unimportant to

the attainment of that general object that, although there has been

total non-compliance, a directory construction may be appropriate.

In such cases it may not matter that the non-compliance is

complete, not partial. Indeed the stipulation in question may be of

a kind which is incapable of partial compliance; to give to such a

stipulation a directory interpretation recognizes that it may be

wholly disregarded without prejudice to validity because of its

relative unimportance in the attainment of the general statutory

object and also, perhaps, because of the far-reaching and

undesirable consequences of treating its non-observance as

invalidatory.

Where, on the contrary, a stipulation may be seen to be of

importance in attaining the general object of the statute

its total non-observance cannot be sought to be excused, and

its intended effect circumvented, by the adoption of a

directory construction. A directory construction may none

the less be given to such a stipulation if it is of a kind

capable of degrees of non-compliance and if some degree of

non-compliance can be seen as not necessarily prejudicing

the substantial carrying into effect of the general object.

If in such a case a directory construction be adopted, the

extent of non-compliance in the particular case must then be

examined to determine whether what has in fact occurred

nevertheless gives effect to the general object of the

statute."

44. The judgment of the Court of Appeal of New South Wales in Tasker v. Fullwood (1978) 1 NSW LR 20 contains, with respect, a helpful summary of the relevant principles. The Court said (pp 23-24):-

"The submission (as to the proper construction of

s.24(1A)(c) of the Liquor Act 1912 (NSW)) raises a question

of a type which is frequently encountered. The problem

arises whenever a judicial or executive act, or the act of a

litigant, is subjected by statute to the prior performance

of conditions. The numerous decisions in this field have

been recently reviewed by this Court: Attorney-General (NSW)

ex rel. Franklins Stores Pty. Ltd. v Lizelle Pty. Ltd.

(1977) 2 NSW LR 955 and Hatton v. Beaumont (1977) 2

NSW LR 211. The position of directory enactments has

also been expounded in an authoritative but obiter way in

Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81. From

these sources we take the following propositions: (1) The

problem is to be solved in the process of construing the

relevant statute. Little, if any, assistance will be

derived from the terms of other statutes or any supposed

judicial classification of them by reference to subject

matter. (2) The task of construction is to determine whether

the legislature intended that a failure to comply with the

stipulated requirement would invalidate the act done, or

whether the validity of the act would be preserved

notwithstanding non-compliance: the Franklins Stores Pty.

Ltd. case (1977) 2 NSW LR 955, at pp 963 et seq. (3)

The only true guide to the statutory intention is to be

found in the language of the relevant provision and the

scope and object of the whole statute: Hatton v. Beaumont

(1977) 2 NSW LR 211, at p 220. (4) The intention being

sought is the effect upon the validity of the act in

question, having regard to the nature of the precondition,

its place in the legislative scheme and the extent of the

failure to observe its requirement: Victoria v. The

Commonwealth [1975] HCA 39; (1975) 134 CLR 81, at pp 179, 180. (5) It

can mislead if one substitutes for the question thus posed

an investigation as to whether the statute is mandatory or

directory in its terms. It is an invitation to error, not

only because the true inquiry will thereby be sidetracked,

but also because these descriptions have been used with

varying significations. (6) In particular, it is wrong to

say that, if a statute is couched in directory terms, the

act will be invalid, unless substantial performance is

demonstrated; the Franklins Stores Pty. Ltd. case (1977) 2

NSW LR 955, at pp 965 et seq. A statute which, on its

proper construction, does not nullify the act in question,

even for total non-observance of the stipulation, is also

described as directory in its terms: Victoria v. The

Commonwealth [1975] HCA 39; (1975) 134 CLR 81, at pp 118, 162, 179,

180."

45. As D.C. Pearce points out in para (11.23) of his work, the only guiding principle will be the statute. From it the Court will have to glean one of three intentions, namely, that strict compliance is necessary; that substantial compliance is necessary together with the degree of substantiality; or that compliance is not a precondition to the action taken.

46. Upon the basis that the legislature in conferring jurisdiction in matters of this kind on the Supreme Court picked up the Court as it was, i.e. with all its powers, including its powers of amendment, it seems difficult to us to draw the conclusion that requirements such as the requirement in relation to advertising were to be mandatory in the sense that the slightest failure would warrant the conclusion that the action was of no effect. Supposing, for instance, an advertisement was placed in a local newspaper one day later than was permissible. Would the Court have no power to overlook that failure? Or supposing some of the words of the notice of motion, not of significance to the matter at hand, were omitted, again the question is whether that would be something which the Court could overlook. We think the better view is that this is one of those cases where substantial compliance is necessary but the degree of substantiality will be high. The essential matters which will guide a court in determining whether there has been compliance with the provision will be the timeliness of the advertisement and whether the advertisement discloses the essential provisions of the variation which is proposed. In other words, what change does it seek in the terms of the purpose clause of the lease?

47. On this basis, the proper approach is one which follows closely that adopted by his Honour. What one needs to do is to look at the terms of the notice of motion as advertised and the terms of his Honour's orders of 18 October 1991 for the purpose of determining whether a comparison of the two reveals a substantial change. The substituted purpose clause, which was set out in the notice of motion and advertised, contained three subclauses. The first was intended to permit the land to be used for retail purposes, the second for industrial purposes and the third for small scale service offices. The purpose clause which was substituted by his Honour's order contained six subclauses. The first permitting use for retail purposes gives rise to no problem. It is identical with the first subclause of the clause sought to be substituted in the notice of motion. It was advertised. The later subclauses are different in terms although subclause (vi) is not very different from the original subclause (iii). There is no express mention of industry because of the difficulties connected with the provisions of s.8A of the City Area Leases Act. But there is in subclause (iv) provision for use for the purpose of any manufacturing process and such a process would in ordinary language be comprehended within the term "industry". That leads us to conclude that subclause (iv) does not give rise to any problem.

48. We think that subclause (v) is in the same category. It permits use for the purpose of the sale of goods manufactured, repaired or assembled on the premises. That is a purpose which is incidental to industrial use. Subclause (vi) refers to small scale service offices limited in total to not more than 500 square metres of gross floor space. We do not think that that is materially different from subclause (iii) in the notice of motion which refers to small scale service offices. That leaves subclauses (ii) and (iii) which permit use for the storage, processing, packaging and wholesale distribution of goods and for service trades. We think that these activities are also within what would ordinarily be regarded as industrial uses.

49. There is another factor to be taken into account. It is the terms of the purpose clause in the original lease. The words of subclauses (ii), (iii), (iv) and (v) of the substituted clause mirror the words of the original purpose clause. Subclause (i) refers to service trades and is identical with subclause (iii) of the new clause. Subclause (ii) of the substituted clause is identical with subclause (ii) of the original clause. Subclause (iv) of the new clause and subclause (iii) of the original clause are identical. Finally, subclause (v) of the new clause is the same as subclause (iv) of the original one. What has happened is that new purposes have been added in subclauses (i) and (vi) of the new purpose clause. Both were advertised. Each of the original purposes remained. In the circumstances their retention was, in our opinion, sufficiently contemplated in the advertisement by the reference in subclause (ii) thereof to "industry ... and ... purposes subsidiary to such industry."

50. Amongst the submissions made by counsel for the appellant was a submission that material circumstances may have changed between December 1989 when the notice of motion was advertised and the date of the final orders, 18 October 1991, almost two years later. It was said that the ownership of properties in the area may have changed as also may have the types of surrounding land use. Furthermore, the economic and financial circumstances of persons or companies in the area might also have changed. It followed that potential objectors in 1991 may have been deprived of the opportunity to consider whether or not to object and then, depending on their decision, to lodge such an objection. The example was given of persons conducting businesses of warehouses or service trades who might have objected but may have not done so because the clause advertised in the notice of motion would have suited them better than the existing one. Depending upon the view one took of the meaning of the word "industrial", the substitution of a clause such as that which was advertised might have put them in a more favourable position because the subject land could not be used for the purpose of a business which might compete with their businesses. All of this, of course, is conjecture but it is important to consider such matters and others which have occurred to us because of the significance which advertising has in the area of the development of land. Nevertheless, having taken all those matters into account, we do not think that his Honour's decision not to require further advertising discloses error. We would reject the submission made about it.

51. The next submission is based upon subsec. 11A(2) of the City Area Leases Act and upon a dictum of Neaves J. in Morpath Pty Ltd v ACT Youth Accommodation Group Inc. (1987) 16 FCR 325. Subsection 11A(2) provides that no variation of the purpose for which land is leased shall be made 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 in question in order that the reasonable user of the land should not be impeded. In the submission of counsel for the appellant the proposed reasonable user is as a Harvey Norman retail outlet, but the Court has gone beyond granting an approval to such reasonable user and has allowed an extremely wide range of alternative uses which basically retain the original purposes and add to them the purpose of retail activity itself expressed very widely. As a consequence, so it was submitted, there will be no planning certainty as to the user of the land because it will be open to the owner for the time being to vary the use without the necessity of approaching the Court. Indeed, there would be nothing to prevent the respondent or a purchaser from the respondent from deciding not to go ahead with the retail project but to use the land for some industrial purpose. The matter which counsel emphasised in subsec.11A(2) was that, before the Court may vary a purpose clause, it must be satisfied that there are such circumstances existing as to make it desirable to vary the provision. The only evidence which the Court had was in relation to the retail purpose and then only in relation to use as a Harvey Norman Discount Store. It was submitted that the Court was in no position to come to a conclusion on the other uses which its variation permitted because it had no evidence of the appropriateness or otherwise of them.

52. In the course of his reasons for varying the purpose clause in the manner set out in the order of 18 October 1991 his Honour said:-

"I have to say, at the outset, that the submissions of the

(appellant), insofar as they contend that the purpose 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."

53. We respectfully agree with what his Honour has said. It is to be remembered that s.11A of the City Area Leases Act is a provision which enables purpose clauses in leases to be varied. The section is directed to what needs to be done by an applicant for variation and to the considerations which need to be brought to bear by the Court when it is considering such an application. When subsec.11A(2) speaks of the Court being satisfied that there are circumstances which make it desirable to vary the provision in order that the reasonable user of the land should not be impeded, the legislature is directing attention to the new purpose for which approval is required. That is why in these applications evidence is directed to the appropriateness of and need for the new purpose and to the consequences it may have in relation to the land and the surrounding neighbourhood. We cannot think that it was intended that, if an applicant wished to retain the existing uses in the new purpose clause, he was required to lead evidence about the desirability of using the land for those purposes as well. That is not a matter to which the section is directed.

54. Of course, it is important that members of the public are informed of what is proposed. That they receive sufficient notice is something provided for by subsec.11A(4), but that is a matter which has been dealt with in relation to the advertising argument which has already been considered.

55. That leaves the submission that the new clause will permit the land to be used generally for retailing purposes except for supermarkets and the sale of food and drink. Here we think one has to take into account the provisions of the Fyshwick Plan which is not affected by the National Capital Plan. The use which will be permitted if the new clause stands will be a use which is plainly permitted under that Plan. Furthermore, we do not think that it would be right, in the absence of compelling reasons to the contrary, to restrict variations of purpose clauses to particular types of retail activity or, for that matter, to particular types of any other activity. The respondent gave evidence of its intention to use the land for a particular retail purpose. But to limit it to that purpose alone would, in our opinion, undesirably restrict the respondent and its successors in title in much too narrow a fashion. We think purpose clauses in Crown leases need to be expressed in reasonably wide terms to allow the adequate use of land. In our opinion it is appropriate to limit uses by general descriptions of activity. That is what the variation ordered by his Honour does. No sufficient reason has been advanced to justify a more limited description.

56. The dictum relied upon by the appellant in the judgment of Neaves J. in Morpath was (p 334):-

"If the lessee wishes to redevelop the land for a use

outside the existing purpose clause, application must be

made to the Supreme Court under s.11A for a variation of the

purpose clause. The lessee must satisfy the Court not only

that the purpose clause proposed is consistent with the

policy plan adopted for the area by the Commission, but also

that, in all the circumstances, it is in the public interest

that the variation be approved. The Court, thus, has a very

wide discretion. One relevant matter is, obviously, the

width of the language in which the proposed purpose clause

is cast. The Court must have regard to the circumstance

that, once approved, the lessee will not be confined to

redeveloping the land according to some specific proposal

which may then be in contemplation, but will be free,

subject to the constraints already mentioned, to redevelop

the land for any use within the varied purpose clause.

Hence, a more limited variation than that proposed may be

appropriate. Another very pertinent matter for the Court

will be the question whether the proposed change of use

should be approved at the particular time having regard to

the amenity of the surrounding area. Many other

considerations immediately spring to mind."

57. His Honour was there discussing the role of the Supreme Court under s.11A of the City Area Leases Ordinance (as it then was) and the width of the discretionary power which the section conferred. There is nothing in the passage cited which supports the submission of counsel for the appellant that the Court should not approve a varied purpose clause which authorises a wider range of uses than that nominated by the applicant for the variation as being the use to which the land is intended to be put.

58. We would therefore reject the variation argument.

59. The final submission made on behalf of the appellant concerns the question of costs. His Honour made no order as to the appellant's costs and ordered that the Minister's costs be paid as to 20 per cent by the present respondent and as to 80 per cent by the objector i.e. the appellant. The appellant submits that the order for costs made by his Honour, insofar as it affects it, should be set aside and that the respondent should be ordered to pay its costs of the proceedings in the Supreme Court.

60. Relevant to the question of costs is subsec.11A(7) of the City Area Leases Act which provides that 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 the section. There is an initial question whether subsec.11A(7) provides a comprehensive code in relation to costs of applications under the section or whether, subject to the provisions of the subsection, the ordinary rules and principles which guide a court in awarding costs or declining to do so, apply. There is no provision in the section which expressly excludes the Court's ordinary powers in relation to costs and we think that it follows that the Court's powers in that respect are not affected except to the extent provided for in the subsection. It follows that his Honour had a discretion as to the Minister's costs and also in relation to the question whether he should order the respondent, which was the successful applicant, to pay the appellant's costs notwithstanding that it had failed in the submissions which it had made.

61. In relation to the Minister's costs, his Honour concluded that the Minister's participation in the proceedings was reasonable and that he had not unnecessarily prolonged the matter or participated without good cause. In making the order that the appellant pay 80 per cent of the Minister's costs, his Honour acknowledged that the Minister had not asked for an order for costs against the appellant. That is indeed so, as page 23 of the transcript of the proceedings before his Honour on 7 August 1991 discloses. This means that the appellant was never heard on the question whether it should pay any part of the Minister's costs. Counsel for the appellant did not address his Honour on the question because there was no occasion for him to do so, with the consequence that the appellant was never heard on the matter.

62. It follows, in our opinion, that the exercise of his Honour's discretion, insofar as the appellant was required to pay any part of the Minister's costs, miscarried and must be set aside. We agree with his Honour that the Minister should have his costs of the proceedings in the Supreme Court. We are, however, unable to agree that any part of the Minister's costs should be paid by the appellant. Sub-s.11A(7) shows an intention that a person applying for a variation does so with responsibility for his own costs and at risk of an order for the full costs of any other person appearing in pursuance of the section. We do not see any reason why the general discretion of the Court should be exercised in this case to compel the appellant, a person appearing in pursuance of the section, to contribute to the costs of the Minister, another person appearing in pursuance of the section. We, therefore, vary the orders made by the Supreme Court to the extent that the respondent should pay the full costs of the Minister.

63. During the course of the hearing the question was raised whether it was necessary that the Minister file a notice of appeal in order that the Court have power to order that his full costs be paid by the respondent. On further consideration, however, we are satisfied that that procedural step on the part of the Minister is not necessary. Having set aside the order for the Minister's costs made by the Supreme Court, this Court is empowered to make in lieu thereof, such other order as in the circumstances it considers appropriate.

64. The basis for the submission that the appellant's costs should be paid by the respondent was that the respondent was seeking an indulgence and that the appellant's objection to the proposed change was reasonably taken. It was contended that to deny an objector costs in these circumstances would tend to discourage objections with the consequent loss to the Court and the public interest of the putting of a case in opposition to what was proposed.

65. In reaching his conclusion, his Honour referred to the decision of this Court in Tekmat Investments Pty. Limited v. Ward (1988) 81 ALR 278. The Court said (p 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."

66. His Honour concluded that, if the ordinary rule as to costs was applied, even with a qualification in favour of public interest objectors, the appellant would be ordered to pay the respondent's costs but that, in view of the provisions of s.11A(7) of the City Area Leases Act, it could do no worse than fail in its application that its costs be paid by the respondent. Earlier, his Honour had said that, in his view, an objector whose purpose has been to advance the public interest and has done so responsibly is more deserving of costs than an objector endeavouring to advance its own personal economic interest. A reading of the reasons for judgment delivered by his Honour on 18 October 1991 discloses that, in exercising his discretion, his Honour took into account that the appellant's primary objective was the avoidance of what his Honour called legitimate competition and that, while the actual grounds raised for consideration by the appellant went beyond that objective and probed substantial matters that needed to be considered, none of the objections on those grounds proved, on examination, to have any substance. His Honour was also of the opinion that the appellant had unnecessarily prolonged the matter though it must be conceded that he did not spell out in his reasons the precise matters which led him to that conclusion.

67. The discretion whether to order an applicant for the variation of a lease purpose clause to pay the costs of an objector to that variation is a very wide one. The circumstances of each case must be considered on their merits and it is undesirable to formulate general propositions which may, or may be thought to, have the effect of fettering the exercise of that discretion in other cases.

68. We have some difficulty with the general proposition expressed by his Honour to the effect that the question whether an objector should have an order for his costs against an applicant for such a variation is to be resolved by reference to the purpose or motive of the objector in opposing the variation sought, particularly where that motive or purpose concerns the objector's economic interest. One may expect that, in most cases, an objector will be motivated to a greater or lesser extent by economic considerations. If the land is residential, the objection will often be based on a perceived adverse economic effect flowing from the proposed change of user. Even if an objection is based on an adverse effect on the amenity of the neighbourhood, economic considerations will not infrequently pervade the objection as well. Where the objector is carrying on a business on commercial or industrial land it is even more likely that such considerations will be operative.

69. Similarly, we do not think the question whether on objector should have an order for costs can be resolved by reference to the question whether its opposition to the variation proposed was motivated by a desire to avoid or limit the competition with its business activities which would be likely to follow if the proposed user were permitted.

70. It follows that it is for us to exercise our own discretion in relation to the appellant's application for its costs of the proceedings before the Supreme Court. We have taken into account a number of factors. We do not make an exhaustive statement of them. We refer, however, to the fact that an applicant for variation seeks an indulgence. Without the order of the Court he cannot use the premises for any purpose other than those already permitted. Furthermore, there is undoubtedly a public interest which is served by the active participation of an objector in proceedings of this kind. It assists the Court to identify issues and to refine its thinking in relation to them. On the other hand, the appellant has entirely failed in the proceedings. They were between two comparatively large successful commercial undertakings. The ordinary rule, which is applied in the general run of cases before the Supreme Court, would be that the appellant would not recover costs. On balance, we are of opinion that that is what should occur here. In all the circumstances we think that justice will be done by there being no order made as to the appellant's costs at first instance.

71. For the reasons set out above, the orders made by the Supreme Court are varied by setting aside the order that the Minister's costs be paid as to 20 per cent. by the applicant and as to 80 per cent. by the objector and substituting therefor an order that the Minister's costs be paid by the applicant. Otherwise the appeal is dismissed. The appellant must pay the respondents' costs of the appeal.