Ace Waste Pty Ltd v Brisbane City Council

[1997] QCA 414

IN THE COURT OF APPEAL	[1997] QCA 414
SUPREME COURT OF QUEENSLAND

Appeal No. 2009 of 1997

Brisbane

[BCC v Ace Waste P/L]

BETWEEN:

BRISBANE CITY COUNCIL

Appellant

AND:

ACE WASTE PTY. LTD. ACN 010 750 839

Respondent

Davies JA
Moynihan J

Ambrose J

Judgment delivered 21 November 1997

Joint reasons for judgment of Davies J.A. and Moynihan J.; separate reasons of Ambrose J. concurring as to the orders made.

APPEAL ALLOWED WITH COSTS.
FIRST DECLARATION MADE BY THE PLANNING AND ENVIRONMENT COURT
SET ASIDE. IT IS DECLARED THAT ACE WASTE PTY. LTD. IS NOT ENTITLED TO
HAVE AN APPLICATION FOR NOTIFICATION OF CONDITIONS IN RESPECT OF ITS
PROPOSAL THE SUBJECT OF THE APPEAL NO. 366 OF 1994 IN THE PLANNING AND
ENVIRONMENT COURT, DETERMINED IN ACCORDANCE WITH THE PLANNING

SCHEME FOR THE CITY OF BRISBANE IN FORCE AS AT 24TH AUGUST 1994

CATCHWORDS:  INTERPRETATION - s.3.4(1) Local Government (Planning and
Environment) Act 1990 - meaning of terms “lodged” and “duly

made”.

Counsel:	Mr P. J. Lyons Q.C. for the appellant Mr G. J. Gibson Q.C., with him Mr A. Skoien for the respondent
Solicitors:	Director Legal Services Branch, Brisbane City Council for the appellant

I. R. Pepper for the respondent

Hearing Date:  2 October 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2009 of 1997

Brisbane

Before Davies J.A. Moynihan J. Ambrose J.

[BCC v. Ace Waste P/L]

BETWEEN:

BRISBANE CITY COUNCIL

Appellant

AND:

ACE WASTE PTY. LTD. ACN 010 750 839

Respondent

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND MOYNIHAN J.

Judgment delivered 21 November 1997

This is an appeal from one of two declaratory orders made by the Planning and Environment

Court on 13 December 1996 in an appeal by the present respondent against a decision of the appellant

refusing an application for notification of conditions of development of premises pursuant to the relevant

planning scheme. We have had the advantage of reading the reasons for judgment of Ambrose J. We

agree with him that the appeal should be allowed with costs and that the first declaration made by the

Planning and Environment Court should be set aside. However our reasons for that conclusion differ

from those of Ambrose J. The circumstances which gave rise to the making of declarations by the

Court are set out in the reasons of Ambrose J. and, accordingly, it is unnecessary to repeat them here.

Section 3.4(1) of the Local Government (Planning and Environment) Act 1990 ("the Act")

provides:

"3.4(1) Where a local government has not decided an application prior to the date (the 'prescribed date') of the coming into force of a planning scheme or an amendment thereof (the 'new planning scheme') the local government, in deciding the application in accordance with the planning scheme in force at the time the application was lodged, is to give such weight as it considers appropriate to the new planning scheme."

The natural meaning of that section is that it assumes a decision of an application being made

in accordance with the planning scheme in force at the time the application was lodged and requires the

local government, in so deciding, to give such weight as it considers appropriate to the new planning

scheme.

The first declaration made by the Court, which is the only one challenged in this Court, was in

the following terms:

"It is this day ordered and declared that the [respondent's] Application for Notification of Conditions in respect of the proposed development the subject of these proceedings was "lodged" by the [respondent] (within the meaning of the word "lodged" where it appears in sections 3.4(1) and 4.1(2)(a) of the Local Government (Planning and Environment) Act) on the 24th day of August, 1994."

It is common ground in the submissions made to this Court that the only purpose in making a

declaration in these terms could have been to require the appellant to decide the respondent's

application in accordance with the legislation as it stood on 24 August 1994. In order to achieve that

purpose the respondent seeks to construe s.3.4(1) as if the words "in deciding" meant "shall decide" or

some equivalent expression and, no doubt in consequence, to add the word "and" after the word

"lodged". It is necessary in our view to consider whether there is any justification for so changing what

is otherwise the natural meaning of the provision.

Sections 20(2) and (3) of the Acts Interpretation Act 1954 relevantly provide:

"(2)	The repeal or amendment of an Act does not -
...
(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; ...
...
(e) affect [a] ... proceeding or remedy in relation to a right, privilege [or] liability ... mentioned in paragraph (c) ...
(3)	The ... proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced ... as if the repeal or amendment had not happened."

In the circumstances in which it applies, that is where an application to which s.3.4(1) applies

has conferred on an applicant a right, s.20(2)(c) requires any proceeding in relation to that right to be

continued and completed in accordance with the legislation as it stood when the right was acquired.

Section 3.4(1) in its natural meaning can sensibly be read with s.20(2)(c) to apply when, but only when

an applicant has acquired under an application a right to which s.20(2)(c) applies. Section 3.4(1) then

modifies that right to the extent of requiring the local government to give such weight as it considers

appropriate to the new planning scheme. It is now established that an applicant under a statutory

scheme acquires a right within the meaning of s.20(2)(c) only when he or she has a right to have the

application determined. That is the effect of the decision of the High Court in Esber v. The

Commonwealth.[1]

[1] (1992) 174 C.L.R. 430; see especially at 440. See also Kentlee Pty. Ltd. v. Prince Consort

Unfortunately the terms "lodged" and "duly made" are used in the Act[2] in a rather confusing way.

[2] As to "lodged" see s.3.4(1) of the Act and the first declaration made by the Planning and

That is not at all surprising in planning legislation in this State which, together with the Stamp Act 1894,

reaches a high point of drafting incompetence. But the consequence of the above construction of

s.3.4(1), read with s.20(2)(c), is that, unless the respondent, when it submitted an application form to

the appellant on 24 August 1994, or at some time prior to 2 September 1994 acquired a right in the

above sense, its application initiated by submitting the application form on 24 August 1994 must be

determined in accordance with the legislation in force after 2 September 1994. A similar result, where

an applicant had acquired a right to have an application determined prior to the commencement of the

Act, is achieved by s.8.10(9).

One thing which is reasonably plain from the provisions of the Act referred to in the reasons of

Ambrose J., in particular s.8.2(5C), is that an applicant for notification of conditions of development of

a designated development, such as this was, acquires no right to have the local government decide its

application until it has included with its application an environmental impact statement in accordance with

the terms of reference provided to it by the Chief Executive. It was not submitted in this Court that

s.8.2(5C) had been complied with by the respondent before 2 September 1994.

Because the real issue between the parties here and below is whether the respondent acquired

a right to have an application determined in accordance with the legislation as it existed prior to 2

September 1994 it may be doubted whether either of the declarations made below had any utility.

However there was no challenge to the second declaration made and it appears to be legally and

factually correct. As to the first declaration, "lodged" in s.3.4(1), on the construction which we have

reached, assumes a lodgement which gives rise to a right to a decision from the local government. Once

that construction is accepted it may be inferred from that declaration, if correctly made, that the respondent has acquired a right to have an application determined in accordance with the law as it

existed prior to 2 September 1994. As that is, in our view, wrong for the reasons we have already

advanced we would, like Ambrose J., allow the appeal and set aside that declaration. We would also

make the declaration sought in paragraph 6 of the Notice of Appeal.

In the event that the appeal is allowed the appellant sought an order that the matter be remitted

to the Planning and Environment Court for further consideration because, it was said, "it will be

important for her Honour to determine a matter which she did not determine because of the matter the

subject of the appeal". Reference is then made to a question and answer in her Honour's reasons for

judgment. The judgment below took a curious form, in part, by answering questions submitted to her

Honour by the parties to the appeal. The function of a court is of course to make orders and to give

reasons for those orders. It may be convenient for a judge to ask the parties what they see as the issues

which must be decided in order to determine what orders should be made. But in the end it is the court

which must determine what issues are necessary to be decided in order to reach the conclusion which

requires the making of the orders which it makes.

The reason why, in the present case, the appellant wishes this matter to be remitted to the

Planning and Environment Court is so that that court may determine whether the respondent's proposed

development is a "public utility undertaking" within the meaning of the planning scheme as it existed after

2 September 1994. It is common ground, it seems, that that is a question which will have to be

determined if the respondent proceeds with its application. However the respondent, in its submission,

whilst consenting to an order remitting the matter to the Planning and Environment Court for further

orders or declarations in respect of that question, indicated that, if the appeal is upheld, the respondent

would then decide whether or not to proceed with the development. Absent a decision to proceed with

the development under the planning scheme as it exists after 2 September 1994 a declaration on this

question would be hypothetical.[3] Accordingly we would not make the further order sought by the

[3]            See, for example, University of New South Wales v. Moorhouse (1975) 133 C.L.R. 1 at

appellant even though the respondent consents to it.

We agree that the appellant should have its costs of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2009 of 1997

Brisbane

Before Davies JA
Moynihan J
Ambrose J

[BCC v Ace Waste P/L]

BETWEEN:

BRISBANE CITY COUNCIL

Appellant

AND:

ACE WASTE PTY. LTD. ACN 010 750 839

Respondent

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 21 November 1997

This is an appeal against one of two declarations made by the Planning and Environment Court

concerning legal consequences of the failure by the respondent applicant for notification of conditions

for an expansion of a permitted use of land to include with its written application form an Environmental

Impact Statement in accordance with Terms of Reference given pursuant to s.8.2(3) of the Local

Government (Planning and Environment) Act 1990 prior to lodging the purported application.

The respondent’s difficulty arises because subsequent to purportedly making its application

there was a change in the Town Planning Scheme which, arguably in any event, would not permit an

expansion of that use after the change.

The respondent seeks to rely upon the steps it took to obtain a notification of conditions for expansion of the use prior to the change of plan as securing the right to have that application considered by the appellant having regard to both the Town Plan in force at the time of the purported application

and also the provisions of the current Town Plan. The problem for the applicant if the superseded Town

Plan can be given no effect is that under the current Plan the existing use is a lawful non-conforming one

and it is perceived to be at least arguable that without a rezoning which might attract objections it would

not be possible to expand the current use.

It is the case for the appellant that the steps taken by the respondent to secure notification of

conditions prior to the change in the Plan were insufficient to amount to an application of the sort

contemplated by the Local Government (Planning and Environment) Act and therefore the

respondent is unable to call in aid the provisions of the superseded Town Planning Scheme.

It was determined in the Planning and Environment Court that an Environmental Impact

Statement submitted to the Council with a pro forma application for conditions was not in accordance

with the Terms of Reference given to the respondent prior to making the application and in fact did not

meet the requirements of the Act. It was held that consequently neither the Council nor the Court had

power to consider the application.

The Court then made two declarations -

“It is this day ordered and declared that the Appellant’s Application for Notification of Conditions in respect of the proposed development the subject of these proceedings was ‘lodged’ by the Appellant (within the meaning of the word ‘lodged’ where it appears in sections.3.4(1) and 4.1(2)(a) of the Local Government (Planning and Environment) Act) on the 24th day of August, 1994;

It is further this day ordered and declared that the said Application for Notification of Conditions has not been ‘duly made’ (within the meaning of that expression where it appears in section 4.1(2)(b) of the Act) and will not be ‘duly made’ unless and until the Appellant submits an Environmental Impact Statement which satisfies the relevant definition in the said Act”.

It is against the first declaration made that this appeal is brought.
It is convenient to refer first to the terms of s.3.4(1) of the Act which is pivotal to the relief

sought by the respondent -

“3.4(1)Where a local government has not decided an application prior to the date (the ‘prescribed date’) of the coming into force of a planning scheme or an amendment thereof (the ‘new planning scheme’) the local government, in deciding the application in accordance with the planning scheme in force at the time the application was lodged, is to give such weight as it considers appropriate to the new planning scheme.”

It is the contention of the respondent that although its failure to include a proper Environmental

Impact Statement with its application form prior to the change in the Town Planning Scheme may have

resulted in its failure to ‘make” an application prior to the change in the Scheme, nevertheless it had

“lodged” an application - albeit that the Council was not permitted to embark upon consideration of it

- and that therefore it takes whatever advantage the terms of s.3.4(1) gives it with respect to calling in

aid the provisions of the superseded Town Plan.

It is the appellant's contention that what was “lodged” did not constitute an “application” which

was capable of its consideration so that s.3.4(1) can have no effect.

To consider these contentions it is necessary to refer to some of the other provisions of the Act.

Under s .4.1 it is provided:-

“(2) An application to which this section applies -

(a)    may be lodged by the applicant personally or by post with the chief executive officer; and

(b)    is to be taken not to be duly made until all the particulars required by this Act and the planning scheme or interim development control provisions have been provided to the local government together with the appropriate fee; and

(c)    may be decided by a local government on the information submitted with the application, if the applicant, when information relevant to the application is requested but not provided within 40 days (or such longer period as the local government may allow) from the date of the request, fails to supply that information;”

.....
“(5)	Where a local government requires, pursuant to its planning scheme, an application in respect of a permitted use, it is to decide that application within 40 days of the date of -

(a)    the application having been made to it; or

(b)    the receipt of such further particulars as may be requested pursuant to subsection (6).

(6)	Where a local government requires further particulars in respect of an application referred to in subsection (5), it is, within 14 days of the receipt of the application, to request in writing such further particulars as are necessary to decide the application.
(7)	Upon a local government making a decision on an application in accordance with subsection (5), the chief executive officer is, within 10 days of the date of the decision, to notify the applicant of the decision.
(8)	Where a local government fails to decide an application referred to in subsection (5) within the period referred to in that subsection, the application is to be taken to have been approved without conditions, determined to comply or similarly endorsed, as the case may require.”

Under s.8.2 it is provided:-

“(1)

Without derogating from any of its powers under this Act or any other Act, a local government, when considering an application for its approval, consent, permission or authority for the implementation of a proposal under this Act or any other Act, is to take into consideration whether any deleterious effect on the environment would be occasioned by the implementation of the proposal, the subject of the application.

(2)

If a person intends to apply to a local government for-

(a)    an approval, consent, permission or authority in relation to a planning scheme for a designated development; or

(b) ...

the person must, in accordance with the regulations, request the chief executive of the department to tell the person if an environmental impact statement is necessary and, if it is necessary, its terms of reference.

(3) The chief executive must, as soon as possible after receiving the

request -

(a)    give a written acknowledgement to the applicant of its receipt; and

(b)    decide if an environmental impact statement is necessary; and

(c)    if the chief executive decides that an environmental impact statement is necessary - decide its terms of reference.

(4)	.....
(5)	The chief executive must consult with all the referral agencies in relation to -

(a)    whether an environmental impact statement is necessary; and

(b)    if a statement is necessary - its terms of reference.

(5A) Subject to subsection (5B), when the chief executive has decided whether or not a statement is necessary and, if it is necessary, the terms of reference, the chief

executive must give written notice of the decision and the terms (if any) -

(a)    to the applicant; and

(b)    to the local government.

(5B)	.....
(5C)	The applicant must prepare an environmental impact statement in accordance with the terms of reference and include it with the application if the applicant still intends to apply to the local government for -

(a)    an approval, consent, permission or authority in relation to a planning scheme for the designated development; or ---

(8) When the local government receives an application for a designated development, it is to forward to the chief executive, and any referral agency nominated in the terms of reference, a copy of the environmental impact statement together with a request for comments.”

“Referral agency” is defined in s.8.2(15) to include the chief executive of the department

responsible for the administration of Acts for the protection of the environment and the chief executive

of any other department or statutory body that the chief executive of the department administering the

Act considers must be consulted.

The “application” lodged by the respondent with the appellant on 24 August 1994 is a five page pro forma document which was signed by the Managing Director of the respondent on 27 June 1994. It is unnecessary to analyse its content in any depth but it emerges that the current use of the land

involved is for the incineration of refuse and it is sought to extend that use by the installation of an

additional “rotary kiln incinerator”.

It is interesting to note that there is no site plan or layout attached as separate documents. That

part of the form relating to site plan is filled in simply to indicate -

“Refer attached environmental impact statement.”

The form is completed to indicate that the proposed development for which conditions are

sought is a “designated development” or located within an area to which designated development relates

as listed under the Act. Under this information the pro forma application form has written on it -

“NOTE: Pursuant to s.8.2(2) of the Act, if this application is for a Designated Development it must be accompanied by an Environmental Impact Statement. The Council cannot accept this application if it does not include such a Statement unless the Council has determined the proposed development to be of a minor or ancillary nature.”

The respondent states in the form that an Environmental Impact Statement has been lodged

with the application and that the terms of reference for that statement have been approved by the

Department of Housing and Local Government. The respondent states in the application form that

rivers, creeks and/or watercourses “may be impacted upon by the proposed development.”

When payment was made upon lodging the application form on 24 August 1994 a receipt was

given upon which it was noted that Council decision could be expected within 40 days upon an

application for notification of conditions but that generally this time was extended to 60 days if an

Environmental Impact Statement “forms part of the application”.

It is not contended that the second declaration made by the Planning and Environment Court

is not correct. Clearly that declaration did accurately characterise the pro forma written application

lodged on 24 August 1994 as not being “duly made” as required by s.4.1(2)(b) of the Act and it was also declared that that application would not be “duly made” unless and until the respondent submitted

an Environmental Impact Statement which was prepared in accordance with the terms of reference

obtained by the respondent and which did satisfy the requirements of the Act.

It is the contention of the respondent that although the desired application could not be said to

have been “duly made” because of the deficiencies in the accompanying environmental impact study and

indeed will not be “duly made” unless and until a proper environmental impact study is submitted to the

Council, nevertheless upon its express terms s.3.4(1) has the effect that because the formal application

has been “lodged” it can be characterised as having been “duly made” at some time in the future if and

when an environmental impact study which complies with the terms of reference and requirements of

the Act is submitted to the appellant. It was contended that there is nothing in the wording of the Act

to suggest that an application has to be duly made at the time it is lodged - although perhaps that would

often be the case. It was contended that the formal application in the present case had clearly been

lodged on 24 August 1994 and if at some time in the future the respondent submits a fresh

environmental impact study in accordance with the terms of reference given and which otherwise

complies with the requirements of the Act then upon the appellant receiving that report the application

will thereupon become “duly made” within s.4.1(2)(b) of the Act. Presumably having “lodged” the

written application on 24 August 1994 the respondent will have an unlimited time within which to take

what steps are necessary to “duly make” the application. The argument seems to envisage no time limit

at all for submitting a proper Environmental Impact Statement. Perhaps the application can be “duly

made” in five or ten years time. Perhaps it can be “duly made” at a time after the current planning

scheme has been superseded by yet another “new planning scheme”.

In my view the consequences of accepting the contentions advanced for the respondent would have serious implications for convenient development control under planning schemes. One unfortunate consequence might be that should a land user learn of proposed changes to a planning scheme which

might impinge upon a use which he has in contemplation at some time in the future he might by merely

filling in the pro forma application form indicating the nature of the use proposed and omitting to include

anything that even pretended to be an environmental impact study, nevertheless retain indefinitely the

advantage which the respondent contends it retains under s.3.4(1).

It is the contention of the respondent that s.49(1) of the Acts Interpretation Act 1954 permits

substantial compliance with the requirements of ss.4.1(2)(b) and 8.2(5c) in providing information etc

and that on its face whatever its internal or substantive deficiencies the Environmental Impact Statement

included with the application form satisfies the requirements of that section.

However s.49(2) provides :-

“(2) If a form prescribed or approved under an Act requires -

(a) --

(b)    specified information or documents to be included in, attached to or given with the form --

(c) --

the form is not properly completed unless the requirement is complied with.”

In my view far from lending support to the respondent’s contention, s.49 supports the contrary

proposition that the failure of the respondent to include with its written application form an environmental

impact study in accordance with the terms of reference given to it which met the requirements of the Act

resulted in the application being “not properly completed”.

This conclusion of course supports the declaration made by the Planning and Environment Court

that the application had not been “duly made”.

Perhaps however it goes a little further because under s.49(2) of the Acts Interpretation Act

1954 it could not be said that the very application form which had been “lodged” had been properly

completed. Can it be said that s.3.4(1) applies where arguably the “lodged” document cannot be categorized as an “application”? What if an application form not be signed? Would such an

“uncompleted” application form constitute an application “lodged” within s.3.4(1)?

In my view it would be an unusual result if by “lodging” an application form which had not been

properly completed and which could not be categorised as constituting a “duly made” application,

s.3.4(1) could operate to give the person lodging that document a right to have determined an

application should it ever be properly completed and “duly made” having regard to the content of a

superseded planning scheme; with the consequence that the local government and the Planning and

Environment Court perhaps many years later is given a discretion to give only such weight as might be

thought appropriate to the planning scheme in force at the time the application is properly completed.

Both the appellant and the respondent agreed that having regard to the decision in Esber v The

Commonwealth of Australia (1992) 174 CLR 430, if a “duly made” application was made by the

respondent prior to the changes in the relevant planning scheme, s.20(2) of the Acts Interpretation Act

1954 would give the respondent the right to have that application determined according to its provisions.

It is the contention of the appellant that the effect of s.3.4(1) of the Local Government

(Planning and Environment) Act 1990 is simply to modify the effect of s.20(2) of the Acts

Interpretation Act by empowering the local government to give such weight as it considers appropriate

to the provisions of the Planning Scheme in force at the time it decides the application.

This Court considered the effect of Esber v The Commonwealth of Australia, Newell (1936)

55 CLR 707, NSW Aboriginal Land Council v The Minister (The Winbar Claim) (1988) 14

NSWLR 685, Director of Public Works v Ho Po Sang [1961] AC 901, and Ungar v City of

Malvern [1979] VR 259 in Kentlee Pty Ltd v Prince Consort Pty Ltd. Kentlee was applied by this

Court in Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 1 Qd.R. 138.

It is unnecessary to determine the application of s.20(2) of the Acts Interpretation Act 1954

to the facts of this case or the extent to which it may be affected by s.3.4(1) of the Local Government

(Planning and Environment) Act 1990.

It seems to be common ground on this appeal that if the application form lodged by the

respondent on 24 August 1994 without the inclusion of an Environmental Impact Statement according

to the terms of reference given and otherwise meeting the requirements of the Act, did not constitute “an

application” within the meaning of s.3.4(1) of the Act then the appeal must succeed.

In my judgement the combined effect of s.8.2(5C) of the Local Government (Planning and

Environment) Act 1990 and s.49(2) of the Acts Interpretation Act 1954 requires the application

form “lodged” with the appellant on 24 August 1994 to be characterised as not merely being “not duly

made” but also as being “not properly completed” and therefore incapable of being treated as an

application capable of consideration by the appellant either at the time of its lodgement or indeed at the

present time.

It may well be as the respondent contended that the requirement under s.8.2(5c) that the

Environmental Impact Statement be “included with” an application form should not be regarded as a

“temporal” constraint requiring both documents to be lodged simultaneously. It may be that upon a

deficient Environmental Impact Statement being replaced or supplemented so that the requirements of

the Act are met, from that time an application would be made to which s.3.4(1) could apply. However

in this case it is unnecessary to decide the point because no such further document has ever been lodged

with or submitted to the appellant.

I would allow the appeal. I would order that the respondent pay the appellant's costs of and

incidental to the appeal to be taxed.

Pty. Ltd. [1998] 1 Qd.R. 162 and Durrisdeer Pty. Ltd. v. Nordale Management Pty. Ltd. [1998] 1 Qd.R. 138.