Tooth & Co Ltd v Council of the City of Parramatta

As I have already said, one of the reasons which led the Supreme Court to discharge the order nisi was that the case is met by suitable statutory remedies; the statutory appeal was appropriate and satisfactory. We think that their Honours correctly applied the principle in holding that the appeal to the Land and Valuation Court was an equally convenient, beneficial, effective and appropriate remedy; indeed it appears better calculated to lead to a proper result. The appeal to the Minister with respect to s. 342R is, of course, not a judicial remedy, but it is that appointed by statute for dealing with an administrative problem even if, contrary to my opinion, the case falls within the provision. Having regard to the considerations I have stated, we would not be warranted in granting special leave to appeal.

To refuse special leave as we do on this ground means that the remedies I have mentioned are open to the appellants. It is the fact that the appellants have lodged an appeal to the Land and Valuation Court and that that appeal is pending. In these circumstances the claim which the appellants make to have their application consented to and their plans approved may be considered in the Land and Valuation Court. In that case it will be for that court to decide upon the matters which have been raised. It is therefore not desirable that we should go into the merits of the case made and express our opinion fully upon the contentions of fact and law that have been advanced. But there are two or three matters to which it is perhaps desirable to refer.

In the first place one of the grounds relied upon in support of the application for special leave to appeal is that the council in giving their reasons for refusing the application under s. 312 and under cl. 41 of the County of Cumberland Planning Scheme Ordinance limited their grounds and that the Supreme Court has found that the council's discretion was properly exercised on grounds which go outside those limits. I do not propose to examine the resolution which the council passed or the notification thereof sent to the appellant or to discuss how far the grounds the Supreme Court attributed to the council are covered by those respective documents. What I desire to say about them is that if the council had, by a proper exercise of its discretion, in truth discharged its duty under the provisions of Div. 4 of Pt. XI of the Local Government Act, in which s. 312 stands, and under the clauses of the County of Cumberland Planning Scheme Ordinance (namely cll. 26, 27 and 41), then it would appear to me to be a sufficient answer to an application for a writ of mandamus, even if thereupon the council had not performed its further duty in giving a notice as full or complete as the provisions of s. 314 (3) may be considered to require.

In the second place, as a mandamus could in any case command only the reconsideration of the matter, it would be open to the council to reconsider it on all grounds, and the remedy would prove futile.

In the next place, it is perhaps desirable to refer to s. 342R. There are some difficulties about that provision which it is not necessary to discuss. It is enough to deal with the ground taken for the appellant which was that under the proviso to par. (f) a duty lay upon the council in this particular case not to refuse an application unless it was satisfied among other things that other land suitable for the erection of such building as is specified in the application is available on reasonable terms, and that the council was not so satisfied and could not have been so satisfied. That fact is not conceded. But however that may be, it is important to notice that the duty which is laid upon the council by the proviso in negative terms not to refuse an application does not arise unless the council has power to grant the application and that it has no power to grant an application unless under par. (f) of s. 342R it is satisfied that the proposed erection of the building will not contravene any permanent provisions of the prescribed scheme. It is not conceded that the council was satisfied that the proposed erection of the building would not contravene any permanent provisions of the prescribed scheme. Speaking for myself, I should think that the council would be well justified in not being satisfied that the building would not contravene the permanent provisions of the prescribed scheme.

It has been assumed that s. 342R applies to the appellants' land because the last portion of cl. 26 of the County of Cumberland Planning Scheme Ordinance suffices to bring under its operation land within the zone to which cl. 26 refers and that zone includes the appellants' land. The earlier portion of cl. 26 states that the purposes for which buildings may be erected or used without the consent of the responsible authority (in this case the council) or only with such consent or may not be erected or used at all are shown in the table which is annexed to the clause. The provision then proceeds to say that no building operation shall be undertaken upon land within the zone specified in Pt. II of the table unless a notice applying to the land has been given under par. (a) of s. 342R and such notice is still operative or permission to erect a building has been granted under par. (e) of the said section.

No doubt it may be suggested that this last portion may not aptly fulfil the condition laid down in the commencing words of s. 342R which make the whole of the ensuing paragraphs of the section contingent upon there being a prescribed scheme in which the erection of buildings on land is prohibited or restricted until such time as the responsible authority has given notice, as provided in the section. For the clause does not pursue the terms of the section but first of all uses the word "unless", and then adds the additional limitation that the notice must still be operative and then further the alternative condition excluding the prohibition or restriction if permission to erect a building has been granted under par. (e). I do no more than mention the doubt lest it should be thought to have been overlooked. But for present purposes I assume that the doubt is not well founded.

In the last part of cl. 26 it is first provided that no building operations shall be undertaken, that is to say that they shall not be commenced, within the zone specified unless one or other of the conditions is fulfilled. The earlier part, however, which is introductory to it, specifies the purposes which, among other things, require consent. The later part, as it appears to me, ought to be read as cumulative upon the earlier part and not as taking out of the earlier part any case falling under the later part in which one or other of the conditions is fulfilled.

To see how the earlier words of cl. 26 operate to require consent in this case it is necessary to look at Pt. II, item 14, of the table and combine it with item 1 in Pt. I to which item 14 refers. Column 4 in the table shows the purposes for which buildings may be erected or used only with the consent of the responsible authority, which is the council. One of the purposes is "shops". The definition of the word "shops" includes any premises licensed under the Liquor Act 1912 as amended. Clause 27, which follows, then provides that where an application is made to the responsible authority for its consent to the erection or use of buildings in a zone in which a building of the type proposed may be erected and used only with its consent the responsible authority shall decide whether to give or withhold consent and in the former event what conditions, if any, shall be imposed. There follows a reference to some of the matters to be considered in exercising the discretion.

It appears to me that under par. (f) the permanent provisions of the prescribed scheme, which must not be contravened if the power is to arise, are in this case the provisions which I have read made up of cl. 26 and the table annexed to it and cl. 27. Until, or perhaps I should say unless, there is a consent of the council as the responsible authority, the building would contravene the permanent provisions of the scheme. Accordingly, as at present advised, I would be disposed to think that the power given by par. (f) of s. 342R does not arise and the proviso is not applicable to this case. For that reason the section may be put aside. It is not the only matter arising in connexion with s. 342R, but I do not think it is necessary to say more of this somewhat difficult provision.

Another matter which it is perhaps desirable to mention is the ambit of the proviso to cl. 27 of the County of Cumberland Planning Scheme Ordinance. The proviso says that before determining any such application the responsible authority shall consider the provisions of any planning scheme, including this scheme, affecting the land. I pause to say that there does not appear to be any planning scheme affecting the land other than the County of Cumberland Planning Scheme. The proviso goes on "and in any case where it appears to the responsible authority that the erection or use of such building would be in contravention of any such scheme or is likely to cause injury to the amenity of the neighbourhood including injury due to the emission of noise, vibration" and certain other enumerated agencies, "or otherwise the responsible authority may withhold consent".

I mention cl. 27 specifically for the purpose of saying two things. The first is that the council has a wide discretion and that the grounds on which it is exercisable do not appear to me to be limited to the matters stated in the proviso. The proviso is an express command requiring it to pay attention to the matters specified. The discretion of the responsible authority, however, is not necessarily restricted to those matters. In the second place it was suggested that the words "likely to cause injury to the amenity of the neighbourhood including injury due" and so forth limited the causes of injury to amenity to the causes enumerated after the word "including" which was given the same force as a videlicet. It is to be noted that the sentence ends with the words "or otherwise". I think that a restrictive construction of that sort is not warranted by any of the considerations which have been advanced. It is right to say that those considerations depend not only upon the clause itself, but upon the nature of certain powers which are given to other authorities in various parts of the scheme. But I think no cause of injury to the amenity of the neighbourhood is necessarily excluded.

I do not refer to the matters of fact in this case, for they may be matters that are further litigated or made the subject of discussion before the Land and Valuation Court. But it is desirable to say that in a great degree the grounds relied upon in support of the application for special leave as well as in the application to the Supreme Court to make the order absolute really turn on questions of fact or on the proper interpretation of the facts and on what is to be deduced from the facts as to the purposes animating the respondent council.

Having regard to what I have said, and to the degree to which the appeal depends in substance on matters of fact, we do not think this is a proper case in which to grant special leave to appeal.

I agree; and I only wish to add that I am disposed to agree with the observations which the Chief Justice has made upon s. 342R and also upon the construction or interpretation of cl. 27. I entirely agree with what his Honour has said with respect to the question of the competency of this appeal.

Substantially for the reasons given by the Chief Justice I am of opinion that the appeal is incompetent and that special leave to appeal should be refused.