Scurr v Brisbane City Council

High Court of Australia|1973-07-01|Before: Stephen JJ, McTiernan J, Stephen J, Menzies J, Gibbs J

For the reasons given by my brother Stephen the Local Government Court should have held that the advertisement in the present case fell far short of setting out particulars of the application as required by s. 22 of the Act and should for that reason have allowed the appeal. In failing to do so it erred in law within s. 28(3) of the Act.

This is sufficient to dispose of the appeal which should in my opinion be allowed.

This is an appeal from a decision of the Full Court of the Supreme Court of Queensland upholding the decision of his Honour Judge Mylne sitting as a judge of the Queensland Local Government Court. Before Judge Mylne was an appeal brought by the present appellants pursuant to the City of Brisbane Town Planning Acts, 1964-1969 against the proposal of the Council of the City of Brisbane to grant an application made by Myer Shopping Centres Pty. Ltd. (Myer) for consent to the use of some twelve and a half acres of land in the Brisbane suburb of Mt. Gravatt as the site of a proposed shopping centre.

The site forms part of almost twenty-seven acres of land at Mt. Gravatt known as the Mt. Gravatt Showground which has long been owned by the Brisbane City Council and which was during 1969 and, presumably, for a considerable period before that time leased to the Mt. Gravatt Agricultural, Horticultural and Industrial Society.

Early in the year 1970 the council, following investigation of a proposal for the redevelopment of the showground site for other purposes and the relocation of the showground in Mt. Gravatt Park, Upper Mt. Gravatt, decided to invite tenders for the sale of some twelve and a half acres of the showground site. An invitation to tenderers was advertised in May 1970, it being a condition of tender and sale that the successful tenderer should take immediate steps to obtain consent for such use of the subject land as the council might approve pursuant to the provisions of its town plan and Ordinances. This condition was necessary because the whole of the showground site was zoned under the town plan as "Special Uses "A" ", the effect of which was to enable it to be used without the consent of the council only as a showground but, with the consent of the council, for any other use whatever.

Myer lodged a tender dated 19th June 1970, specifying as the use which it proposed to make of the land:

The construction and operation of a Target Discount Shopping Centre which will consist of a single level airconditioned building containing 120,000 square feet -

10,000 square feet as a Target Restaurant and Target Take Away Foods.

Car parking facilities for 1,100 cars as shown in the plans submitted.

This tender was expressed to be conditional upon the land being rezoned by the Brisbane City Council from its existing zoning to a "general retailing" or similar zoning.

It would appear from a letter of 3rd July 1970 from Myer to the council that general agreement had by then been reached upon the proposed purchase by Myer of the area tendered for. By an application, also of that date, Myer applied to the council, not for any rezoning of the land but instead for permission to erect a building on the land for the purpose of "Target Discount Shopping Centre". In this application details were given of the use involved; the proposed building was stated to be a single storey brick, steel and glass building approximately thirty-four ft high with external facades of one storey and high ceilings, the building to occupy not more than twenty-five per cent of the total site of some twelve and a half acres; some 400 persons were to be employed and car parking space for 1,100 customers' vehicles and 50 employees' vehicles was to be provided, receiving docks being included in the design for the purpose of loading and unloading goods. The estimated cost of the proposed development was stated to be over $3½m. A site plan was included in the application which disclosed a proposed building measuring some 235 ft by 534 ft set back some 340 ft from the frontage of the site to Logan Road.

Following receipt of this application and in purported compliance with s. 22 of the City of Brisbane Town Planning Acts (The Acts) an advertisement was published in the Brisbane "Courier-Mail" on 7th July 1970 and a copy of that advertisement was exhibited on the land in question. The terms of that advertisement are relevant; it read as follows:

Notice is hereby given that an application has been made for the consent of the Brisbane City Council to erect a building on the land described as Lot 1 or (sic) proposed Subdivision of Subs. 2 & 3, & Resub. 28 of Sub. 1 of Portions 332 & 333 County of Stanley Parish of Bulimba Logan Road, Mt. Gravatt for the purpose of a shop (Target Discount shopping Centre). No machinery. The building will be of One storey.

Objections in writing to the granting of the application may be lodged with the Town Clerk on or before the 17th July, 1970, but these must set the grounds of objection and the facts and circumstances relied on by the objector.

A large number of objections were received during the ten days following the appearance of this advertisement and, after consideration of these objections, the council's Planning Advisory Committee on 3rd August 1970 decided that from a planning point of view it would raise no objections to the proposal, which was thereupon referred to the Establishment and Co-ordination Committee. Then, on 1st September 1970, the Council Registration Board, being the appropriate body to grant permits under the town plan, decided that Myer be advised that it proposed to grant consent to the erection of a building for the purpose of a Discount Shopping Centre on the land and it set in train the notification of its proposal to all objectors. On the following day the council wrote to Myer stating that it had agreed to accept Myer's offer to purchase the land for the sum of $1,010,000, subject however to certain additional conditions which the council set out in that letter. The council at the same time confirmed that it had consented, as registered proprietor of the land, to Myer making application for use of the land as a shopping centre.

Certain of the objectors, on being informed of the proposal to grant consent to Myer's proposed use of the land, availed themselves of their right, pursuant to s. 22(3) of the Acts, to appeal to the Local Government Court and this appeal, which came on for hearing on 25th October 1971, was disposed of by the judgment of his Honour Judge Mylne delivered on 17th December 1971.

Before his Honour and on appeal both to the Full Court and then to this Court it was contended that the public notice of Myer's application did not satisfy the requirements of s. 22 of the Acts; s. 22 reads as follows:

Objection to application to use land or building or or other structure

(1) Where under the Plan any building or other structure may be erected or used for any purpose on land in any Zone only with the consent of the Council or its delegate or land in any Zone may be used for any purpose only with the consent of the Council or its delegate, the Council or its delegate, before deciding any application to erect or use such building or other structure or to use such land for such purpose, shall cause public notice to be given of the application by advertisement published at least once in at least one newspaper circulating in the City and by posting a copy of the advertisement on the land in question.

The copy of the advertisement on the land shall be not less than two feet in height, not less than six square feet in area, and all lettering thereof shall be not less than one inch in height, and the copy shall be posted not more than six feet from the road alignment of the land and so as to be clearly visible from the road and shall be kept so posted at all times during the period of seven days next preceding the date stated in the advertisement as the date on or before which objections may be lodged with the Town Clerk.

Such advertisement shall set out particulars of the application and shall state that objections to the granting of the application may be lodged with the Town Clerk on or before the date specified in the advertisement (which date shall be not earlier than seven days after the date of the publication of the advertisement).

Any such objection shall be in writing, shall be addressed to the Town Clerk and shall set out the grounds of objection and the facts and circumstances relied on by the objector in support of those grounds.

(2) If the Council or its delegate proposes to grant an application whereof public notice has been given, the Town Clerk shall notify accordingly every person who has duly lodged with him an objection to the granting of the application.

The notification shall contain or be accompanied by a copy of this section.

(3) Subject to this Act, a person who has duly objected to the granting of an application whereof public notice has been given may appeal to the Court against the proposal of the Council or its delegate to grant the application.

Such appeal shall be instituted within thirty days after the date of the notification given to such person by the Town Clerk, but not later.

Additionally to the Council the applicant shall be deemed to be a respondent to the appeal.

(4) Where a person has duly objected the Council or its delegate shall not decide the application -

(a) until the time for institution of an appeal has expired; or

(b) if an appeal is duly instituted, until the appeal is determined.

In the case of an appeal, in making its decision the Council or its delegate shall be bound by the determination of the appeal.

The Council shall make its decision and the Town Clerk shall notify the applicant thereof within seven days after the time for institution of an appeal has expired or, if an appeal has been duly instituted, after the determination thereof.

The notification shall state the grounds of the decision.

(5) The applicant shall pay to the Council the costs of the advertisement prescribed by this section and shall accompany his application with the amount of such costs.

This section 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.

These considerations provide substantial grounds for concluding that the reference to "particulars of the application" in sub-s. (1) should not be given any narrow meaning.

I have already set out the terms of the advertisement used in the present case; it does not specify in any intelligible form on what part of the whole twenty-six acres of the showgrounds the proposed structure is to be built or how much of the total site will be taken up by the "shop", as it is called. It does not reveal the identity of the applicant nor does it give any details of the use to be made of whatever area is involved, or of the intensity of that use, other than by referring to the erection of a one storey building "for the purpose of a shop (Target Discount shopping Centre)". The advertisement says, in effect, that a one storeyed shop is to be erected. The use of the word "shop" is said to be justified both because that is the description given in the application, of which the advertisement is to provide particulars, and because "shop" is defined in the town plan so as appropriately to describe Myer's proposal.

Neither of these contentions is of substance. In fact the application did not restrict itself to "shop" in describing the proposed structure; instead it provided ample details to enable the planning authority properly to consider the application, details which the advertisement did not, however, disclose to potential objectors. Far from providing particulars of the application, the description of this major new retailing venture, estimated to cost over $3½ million, as "a shop" was positively misleading. Nor can its description as a shop be justified by reference to the definition of that term in cl. 1 of the town plan; cl. 1 defines terms for the purposes of the plan but has no more general application and unless a term used elsewhere is expressed to be there employed in the sense defined in the plan it will not carry that defined meaning.

Then it is said that both the application and the advertisement went further than was strictly necessary in expanding the meaning of the word "shop" by adding the words in parentheses. To my mind these added words only confuse the matter; I doubt very much whether, in common parlance of the present day, a single shop is ever described as a shopping centre yet the advertisement uses these two conflicting descriptions of what is to be erected on the site; the words "Target Discount" do nothing to clarify the matter. The position is further confused because it transpires that what Myer proposed to erect was, in the jargon of retail merchandising, not a shopping centre but what its executive director described in evidence as a discount departmental store and what Judge Mylne called a departmental discount store, something which his Honour said witnesses had described as a relatively new concept in retailing. Even potential objectors well abreast of the latest developments in retailing terminology would, it seems, have been misled by the description "discount shopping centre". Be that as it may, the term "a shop (Target Discount shopping Centre)" does little if anything to convey to readers of the advertisement the nature and dimensions of the building and very extensive associated car parking facilities which Myer was applying for permission to construct on the site. The inadequacy of the advertisement is striking when viewed in the context of s. 22, which requires objectors to state facts and circumstances upon which they rely in support of their specific grounds of objection.

The paucity of information contained in the advertisement is not to be explained by any lack of information available to the council; the council was, in this instance, supplied with quite detailed information concerning the proposed shopping centre even if attention be restricted solely to what appeared in Myer's formal application. This included the precise location of the site, its area, the identity of the applicant, the height and other dimensions of the building, its estimated cost, the estimated number of employees and the very large number of motor cars provision for the parking of which was to be made. The advertisement could and, if it were to serve the function which the legislation intended, should have provided considerably more by way of particulars than it did.

While the phrase "particulars of the application" may have no constant meaning from case to case, instead depending in each instance upon the facts of the particular application in question, the more extensive and elaborate a particular proposal and the greater its likely impact upon local amenity, the greater will be the need for particulars. In the present case the application was one which, if granted, might have a marked effect on the character of the vicinity. I say this without forming any view as to whether that effect would be, on balance, beneficial or detrimental, it is sufficient to note the magnitute of the proposal. Moreover it involved the introduction into the locality of a significant new land use which might well be thought likely to affect local amenity and which would obviously attract large numbers of motor cars into the adjacent road system. Each of these factors should have suggested to a planning authority that here, if ever, was a case in which its statutory obligation to give public notice of the application called for a high degree of particularity in informing that public of the application being made to it. When, in these circumstances, the notice to the public refers only to the erection "of a shop (Target Discount shopping Centre)" this does not, in my view, satisfy the requirement of setting out particulars of the application.

How the wording of the advertisement came to be adopted does not appear from the evidence. It was stressed on behalf of Myer that it was the council and not Myer which was charged with the task of advertising the particulars of the application and s. 22(1) does require the council to "cause public notice to be given", sub-s. (5) providing for payment by the applicant of the council's expenses of advertising. However in a letter from Myer to the council of 3rd July 1970 it was said that "the necessary advertisements on the land and in the press will be carried out immediately" and it would seem from this that Myer itself effected the advertising, although not necessarily responsible for its wording.

What, then, is the effect upon this appeal of what I regard as the inadequacy of public notice of Myer's application? In argument two distinct aspects of this question were discussed, the first being whether the requirements of s. 22(1) concerning the content of advertisements was mandatory or only directory, the second being whether, whatever the nature of those requirements, any shortcomings in the advertisements could be relied upon in the proceedings before the Local Government Court. The applicable principles determining the choice between a mandatory and a directory interpretation are well settled and are succinctly stated in a passage from Maxwell on the Interpretation of Statutes, 12th ed. (1969), pp. 314-315, which has been referred to with approval in a number of the authorities; in S.S. Constructions Pty. Ltd. v. Ventura Motors Pty. Ltd. [2] , Gillard J. undertook a quite detailed consideration of the application of those principles to a situation not unlike the present. His Honour was there concerned with a notice requirement appearing in Victorian town planning legislation and, although details of that legislation differ significantly from the terms of s. 22, his Honour's discussion of the principles affecting a choice between a mandatory and a directory interpretation are, I think, in point in the present case.

I have already referred to the important part played by the advertising of the making of an application and to the extent to which the working of the statutory provisions depends upon its adequacy; there can, I think, be no doubt but that it is mandatory that there must be a giving of public notice by means of advertisements and that those advertisements must contain some particulars of the application. The legislation employs mandatory language, makes the giving of public notice a condition precedent to any consideration of the application by the council and the section is wholly dependant upon the giving of public notice for the attainment of its objects.

I doubt, however, whether, in the present case, a distinction of any substance exists between a mandatory and a directory interpretation of the requirement that the public notice contain particulars of the application. It is well established that a directory interpretation of a statutory requirement still necessitates, as a condition of validity, that there should be substantial compliance with the requirement; Cullimore v. Lyme Regis Corporation [3] provides a modern instance of this. When the requirement is that "particulars of the application" should be given by public advertisement and when once it is accepted that there must be an advertisement which gives some such particulars, it is difficult to discern any distinction between a strict observance of this requirement, such as a mandatory interpretation would call for, and the substantial observance of it, as called for by a directory interpretation. The situation is quite different from that encountered when some formality of time or procedure has been neglected, or when some question of waiver arises, as it did in Edward Ramia Ltd. v. African Woods Ltd. [4] . That which the statute calls for is not compliance with precise and detailed formalities, some of which might be omitted without affecting substantial compliance; substantial compliance can in this case only be achieved by giving adequate particulars and strict compliance calls for no more than the giving of those same adequate particulars. The particulars of the advertisement will either be sufficient to effect the legislative purpose of giving notice to the public of the application or, if not, will not amount even to a substantial compliance with the statute. I have found the particulars in the present instance to be inadequate and, whether as a result of a mandatory interpretation or of a directory one, the outcome will be the same; the council, or its delegate, here proceeded to a determination of the application without either strict or substantial compliance with relevant statutory requirements and the formation of its proposal to grant the application has thereby been vitiated.

[1962] 1 Q.B. 718. 2. [1960] 1 W.L.R. 86; [1960] 1 All E.R. 627.

The consequences of this call for some detailed consideration of the terms of s. 22. Because of the terms of sub-s. (4), the council, once objections are received, cannot, pending the expiration of time for institution of an objector's appeal, proceed any further than the proposal stage. If an appeal is then duly instituted this restraint upon action by the council will be prolonged until the Local Government Court determines the appeal; indeed it is, I think, more correct to describe the effect of an objector instituting an appeal not as merely prolonging the period of restraint but rather as involving a vacation by the council of the field of decision-making in favour of the Local Government Court. The Court determines the appeal and the council is then bound to give effect to the Court's determination - sub-s. (4); the council is thus deprived of all independent power of consideration and decision-making and this is assumed by the Court.

This substitution of the Court for the council as the true arbiter of applications under s. 22 once an appeal is instituted is significant for the light it throws upon the role of the Court. The Court has before it no final decision of the council on which to adjudicate but merely a proposal which will never of its own force become operative but will, whatever the outcome of the appeal, be superseded by the Court's determination of the appeal, to which the council can only give effect by a formal decision reflecting that determination.

In these circumstances the wording of sub-ss. (2) and (3) and the discriminating use of the word "duly" in those sub-sections is significant; it is only those objections which have been "duly" lodged or which result in a person having "duly objected" which produce statutory consequences. However, neither the formation of a proposal by the council nor the prior giving of public notice is qualified by reference to those acts having been "duly" performed; so that, under sub-s. (3), an appeal to the Court lies only where a person has "duly objected" but will, I think, lie regardless of whether or not the giving of public notice by the council or the formation by it of a proposal has been effected duly, that is, in accordance with law; a purported giving of public notice or a purported formation of a proposal will suffice.

The fact that once an appeal is instituted by an objector the Court assumes from the council the task, initially the council's, of considering an application and the objections to it raises a strong inference that the Court should, in undertaking that task, be directly concerned to assure itself that all the requirements of the giving of public notice in due form have been complied with. Their non-observance will effectively prejudice the Court's proper consideration of the matter in a number of respects; first, it will result in it having before it a council proposal to which it would no doubt ordinarily wish to pay some regard as to the expression of the views of the responsible planning authority but which it will know has been arrived at without necessarily having benefited from a proper presentation to the council of objectors' views; this is an aspect to which I have already referred. Secondly, it will know that there may be persons who might have objected but who have, by reason of defective public notice, been deprived of the opportunity of qualifying as objectors. Thirdly, it will be aware of the fact that the objections which have been lodged come in response to a defective public notice of the application and may accordingly be misconceived in their grounds or in the facts and circumstances set out in support of those grounds.

In those circumstances and faced with what I conclude were defective advertisements the substance of which did not comply with the statutory requirements of public notice the Court should, in my view, have acted in the same way as it would have been proper for the council to act had it appreciated the true effect of the defective notices; it should have rejected the application, not because of any particular objections based upon considerations of a town planning nature but rather because the public notice requirements of s. 22 had not been observed. Such a rejection would not, of course, prejudice the making of a further application in the same terms immediately after that rejection, to be followed by fresh public notice, objection and the remainder of the s. 22 procedure.

This view of the effect of s. 22 involves the proposition that the Local Government Court when hearing an appeal is not to be restricted exclusively to the planning considerations raised by the application but should also consider whether there was compliance with the requirements of the giving of public notice; these matters of public notice are properly within the purview of the Court. The fact that sub-s. (3) describes the appeal to the Court as one "against the proposal of the Council" does not, in my view, run counter to this. It is, in fact, the notification by the council to objectors of its proposal, not, be it noted, its decision, which is the occasion of the appeal; in any event it is clear that no appeal in any conventional sense is involved, the procedure is sui generis since what the Court does, although described as the determination of an appeal, is to take the application and objections in hand, consider them de novo, hear for the first time the objectors and arrive at its own conclusion, whereupon the council for the first time makes a decision in conformity with that conclusion.

Judge Mylne had before him objections which included an objection to the form of public notice and his Honour referred, in his judgment, to the submission made to him that there was a defect in the giving of public notice, particularly concerning the supply of particulars of the application. His Honour took the view that the requirements of s. 22 were, in this regard, mandatory but concluded that the public notice was adequate and, accordingly, did not give effect to that objection. The defective public notice was adverted to in a number of the grounds of appeal to the Full Court and was raised in argument before the Full Court; the Chief Justice in his reasons for judgment concluded that the advertisements were adequate in their particularity and he rejected that ground of appeal. Hoare J. took the view that the provisions of s. 22 were directory only and concluded that there had been substantial compliance with the public notice requirements.

Differing as I do, with respect, from the view taken in the courts below as to the adequacy of public notice I consider that on that ground this appeal should be allowed. The appellants also contended that, on other, quite distinct grounds, involving what was said to be the wrongful exclusion of evidence by the Local Government Court and its failure to have regard to particular considerations of a planning nature, their appeal should succeed; in the circumstances I find it unnecessary for the decision of this appeal to deal with any of these additional grounds.

High Court of Australia Barwick C.J. McTiernan, Menzies, Gibbs and Stephen JJ. Scurr v Brisbane City Council [1973] HCA 39

At a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)

Parties

Cases Cited (1)