Australand Holdings Pty Ltd v. Gold Coast City Council & Anor

[2006] QPEC 120

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Australand Holdings Pty Ltd v Gold Coast City Council & Anor [2006] QPEC 120

PARTIES:

AUSTRALAND HOLDINGS PTY LTD (ACN 008 443 696)

Applicant

V

GOLD COAST CITY COUNCIL

First Respondent

And

STATE OF QUEENSLAND

Second Respondent

FILE NO/S:

BD 1161 of 2006

DIVISION:

Planning and Environment

PROCEEDING:

Application for declaratory relief

ORIGINATING COURT:

Planning and Environment Court of Queensland, at Brisbane

DELIVERED ON:

6 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Application dismissed

CATCHWORDS:

PLANNING LAW – PLANNING AND ENVIRONMENT – effect of Council’s Negotiated Decision Notice – whether the local authority must accept public access easements over areas nominated by the applicant as a result of the notice

Integrated Planning Act 1997

Land Title Act 1994

Australand Holdings Limited v Gold Coast City Council [2006] QPEC 88

Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334

COUNSEL:

D Gore QC and T Trotter for the applicant

M Hinson SC for the first respondent

E Hussey for the second respondent

SOLICITORS:

Allens Arthur Robinson for the applicant

King and Co for the first respondent

Crown Law for the second respondent

1. This is another case in which Australand and the Gold Coast City Council are at odds about which should have permanent control over areas within a new residential subdivision near roads, footpaths and other areas potentially used by residents, or the public: see Australand Holdings Limited v Gold Coast City Council [2006] QPEC 88. The argument is in relatively small compass and does not concern the State, and its representative was excused.

1. That earlier judgment held that Council could not, in the circumstances arising there, be compelled to take an easement over land around a proposed pedestrian/bike path; and that, in any event, its decision not to do so was not unreasonable.  The argument here has a different complexion: Australand contends that Council’s Negotiated Decision Notice of 15 August 2005, properly construed, invited it to nominate areas over which Council should take public access easements and it has done so, and Council cannot now resile from accepting easements over the nominated parts.

1. The dispute descends to a small area of land between four allotments and a footpath beside a new road near those lots, appearing in various plans in the Application Book (Exhibit 3)[1] and in some photographs showing it contains a footpath and bus shelter, turfed areas, and landscaped gardens.  Australand wants Council to take an easement including these parts while Council is content with, and contends for, just the footpath itself.

   [1] and in the reports of town planners Mr Priddle, and Mr Ryter

1. Council’s letter of 15 August 2005 contains the Negotiated Decision Notice.  Commencing at p 3, the following appears:

DEVELOPMENT IN ACCORDANCE WITH PLANS

1    Amended plan/s and details shall be admitted generally in accordance with the plan no. 6 Rev C (2 sheets) drawn by Bennett & Bennett and dated 24/02/05, showing the following modifications:

aThe Development Criteria is to be deleted from the plan of subdivision (These are to be shown on the Plan of Development conditioned in the MCU component of this application).

bThe proposed external boundaries of the scheme land of the Principal Community Title Scheme to which these 35 lots will belong.

cThe external boundaries, common property and names of any subsidiary Common Property Schemes that are being created over other development already approved within the Principal Scheme (This should include the approved development in Pendraat Parade Council Ref PN261201/12/DA1)

dThose sections of Common Property within this stage over which future public access will be guaranteed are to be clearly identified by hatching or similar.

Such plan/s and details shall be submitted and approved by the Chief Executive Officer prior to the issue of a development permit for the carrying out of operational work, or if an application for operational work is not required, prior to the commencement of the use the subject of this approval.

Such plan/s and details, when approved by the Chief Executive Officer shall become the endorsed plan forming part of this approval and a stamp copy will be returned to the applicant.

1. I was also referred, in the course of oral submissions from Mr Gore QC for Australand, to another part of the letter appearing at p 6:

PUBLIC ACCESS

4

a Public access and thoroughfare shall be permitted over those sections of land shown on the plan approved in accordance with condition 1 of this permit.  This is to include all common property covering the access road fronting Lots 101 to 106 and 128 to 124.

b An easement to guarantee public access and thoroughfare over these sections of private land or common property shall be granted to Council by the developer or Body Corporate at the time of the endorsement of the survey plan.  Documentation for that easement shall be to the satisfaction of the Chief Executive Officer.  Preparation and registration of the easement documentation shall occur at no cost to Council.

1. Australand say the words in 1d have an obvious and plain meaning, on the lines set out earlier: i.e., they are said to expressly confer upon Australand the right to nominate the extent of public access area, and have the added consequence that Council has waived any entitlement to argue that it cannot be compelled to accept a public thoroughfare easement on the areas Australand has, as invited, marked.

1. Paragraph 4a is said to be a strong indicator that Council intended to leave the right of nomination of the public access areas to Australand with the proviso, appearing in the second sentence of that paragraph, that those areas must include all the common property near the access road fronting the allotments mentioned in the second sentence.

1. In support of its construction Australand referred to the decision of Skoien SJDC in Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334. That decision is authority for the proposition that, when construing conditions in documents like these a sensible, rather than a strictly legalistic approach should be adopted and, if any ambiguity arises, it should be resolved in favour of the recipient. Even if the construction for which Australand contends is not shown to be immediately apparent or compelling the words are at least, it says, ambiguous and that uncertainty should, on this principle, be resolved in its favour.

1. Condition 1 refers, in its preamble, to plans which appear at pps 24 and 25 of Exhibit 3.  They contain no marks or specifications at all showing any areas of intended public access easement.  The particular modification required to the plans under Condition 1d is that the sections of common property over which future public access will be guaranteed are to be clearly identified by hatching, or similar markings.  The last two unnumbered paragraphs in Condition 1 require those amendments or modifications to be submitted to and approved by the Chief Executive Officer of the Council, within a specified time. 

1. The phrase ‘submitted and approved by’ does not in context, I think, plainly indicate this is just a mechanical step and approval will be automatic; but, rather, that the plans are to be the subject of further consideration and will not necessarily be automatically accepted.  The words cannot reasonably be said to unequivocally signify that there could never be further disagreement about whatever those new plans show.

1. Condition 4 refers back to Condition 1 and on its face (eg, by the use of the word ‘approved’) also, again, suggests that Council is simply postponing to itself the right to be the ultimate arbiter of the acceptability of the new plans and, by pretty strong implication, those sections of the land over which public access and a thoroughfare shall eventually be permitted.  The second sentence in para 4a is specific about what will be required, in this respect, in a particular part of the land but that is simply instructive and does not signify that the final decision about all other unmentioned areas passes to Australand’s discretion.  Indeed, its precision sits more comfortably with the notion that other areas are still the subject of negotiation and further consideration.  

1. On their face Conditions 1d and 4 simply require a modification of plans already lodged to show sections of common property over which future public access can be guaranteed, subject to Council’s further approval.  The use of words like ‘guaranteed’ in context in 1d suggest Council’s enquiry is based on a concern to ensure public access rights are safeguarded, in the further context of an invitation for new material which will be the subject of further consideration – in other words, a simple indication that the developer is at liberty, by submitting a further plan or plans, to nominate areas over which it thinks easements ought to be granted and they will be considered and, if acceptable, approved.  I do not think the words can fairly be construed as indicating Council abandons its rights in that respect.

1. This is not a case, then, in which the unexceptionable principles considered in Mariner Construction v Maroochy are called up.  Even if it had been held, however, that an ambiguity arises, it is very much at the mild end of the spectrum between words which less than precisely or perfectly express what is intended, and extreme vagueness or uncertainty.  At worst it might be said that some slight lack of clarity attaches to Council’s letter but, as the analysis set out above shows, it cannot reasonably attract the construction for which Australand contends and the alleged ambiguity is not so apparent as to warrant that result.   

1. Others submissions addressed the differing views Mr Priddle and Mr Ryter have taken about the matter.  Mr Priddle makes the not unreasonable point that if the public access easement is limited to the footpath, members of the public could not lawfully enjoy the turfed areas or shade trees around a bus stop.  Mr Ryter thinks there is no particular benefit in the inclusion of these areas and the pathway and bus shelter area are sufficient and Council would be burdened by unnecessary additional obligations if it had to maintain the turf, and landscaped areas.  Neither argument is unreasonable but nor is either relevant to the question of construction. 

1. Conditions attached to a development must, under s 3.5.30 of the Integrated Planning Act 1997, be relevant and reasonable. The provisions of the Land Title Act 1994 dealt with in the earlier decision mentioned previously included s 89(3) which provides that a public utility easement may be registered for right of way for the public only if use of the easement is limited to pedestrians (and vehicles reasonably necessary for the building and maintenance of the easement). The plans and photographs show an easement with those elements will be satisfactory if limited to the footpath and bus shelter. As Mr Hinson SC (for Council) pointed out additional easement areas would arguably involve use for park, rather than pedestrian thoroughfare purposes.

1. The application should be dismissed.