Re Yapeen Holdings Pty Limited v Calardu Pty Limited and Minister of Environment Land and Planning [1992] FCA 284;

Re Yapeen Holdings Pty Limited v Calardu Pty Limited and Minister of Environment Land and Planning [1992] FCA 284; - FCA 1992 case summary — Zoe

[41]

"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.

...."

[53]

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.

[76]

"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."

[78]

"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."

[86]

"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."

At a glance

Court

Decision date

Before

Source

Judgment (116 paragraphs)

Re Yapeen Holdings Pty Limited v Calardu Pty Limited and Minister of Environment Land and Planning [1992] FCA 284; (1992) 108 ALR 107 (1992) 75 Lgra 430 (1992) 36 FCR 478 (17 June 1992)

Parties

Legislation Cited (10)

Cases Cited (9)