Benerang P/L v Gold Coast City Council

[2000] QDC 383

IN THE DISTRICT COURT

HELD AT SOUTHPORT

QUEENSLAND  NO. 717 of 1999

[2000] QDC 383

BETWEEN              BENERANG PTY LTD

Applicant

AND  GOLD COAST CITY COUNCIL

Respondent

REASONS FOR JUDGMENT – HANGER DC J

Delivered on the 3^rd day of March 2000.

As a result of the introduction of the 1995 Gold Coast City Plan part of the applicant’s property zoned “Rural A” was rezoned to “Rural” which the applicant contends has seriously diminished its value entitling him to compensation.

Put briefly, the present application is for a declaration that the applicant has given due notice of its intention to claim compensation as a result of the rezoning.    If a valid claim has been made the respondent has failed to decide that claim and in fact an appeal has been lodged against the respondent’s deemed refusal.  

The principle issue is whether or not certain letters sent by the applicant to the respondent constituted a valid claim.   If they do the claim has been made within the time allowed.   If not, the claim is out of time.  

Relevant provisions of section 3.5 of the Local Government (Planning & Environment) Act of 1990 state:-

“(7) The time within which a claim for compensation under this section may be made is three years after the date on which the claim arose.

(7A) A claim for compensation is to be taken to have been made on the date on which it is received by the local government.

(7B) Every claim for compensation is to be made on the prescribed form and the person making the claim is to duly complete and sign the form and lodge it with the local government.”

The date when the claim arose was 24 February 1995, expiring on 23 February 1998.   On 5 November 1996 the applicant’s solicitors wrote to the Council.    The letter stated, inter alia,

“Our client intends to make a formal claim for compensation as a consequence of the Council’s action.

“Our client is currently quantifying its loss and damage and we will be in further contact when that information is to hand.”

The Council responded on 15 November 1996 indicating that future correspondence should be sent to the city solicitor.   It concluded “I now await your further advices”.

In a further letter from the respondent’s solicitors to the respondent dated 31 December 1997 it was stated, inter alia:-

“We refer to our previous correspondence.

“As indicated in our letter of 5 November 1996, our client has been quantifying its loss and damage.  

“Our client has now received advice from its valuers which quantifies the injurious affection component of the financial loss suffered by our client as a result of the rezoning of the land at $650,000.00.   Additionally, our client also claims compensation for disturbance including professional fees expended to obtain a Rural A rezoning, professional costs associated with this claim for compensation together with interest.   It is currently quantifying this amount and we will be in further contact about that.

“Would you please let us know Council’s attitude to our client’s claim as soon as possible.

“If Council requires the claim to be made in a particular form, please let us know.  We understand that there is no particular form currently required.”

This letter clearly invited a response from the Council but none was forthcoming.   The applicant’s solicitors sent a further letter dated 23 February 1998 requesting acknowledgement of the applicant’s claim.   Again there was no response by the Council.   A further letter was sent dated 26 March 1998 which stated:-

“We refer to previous correspondence.

“Although our client has previously formerly notified you of its claim, we now enclose a Notice of Claim signed by our client.”

On 29 April 1998 Wiltheriff Nyst, the solicitors acting for the Council, wrote to the applicant’s solicitors as follows:-

“We act for the Gold Coast City Council.

“We have been instructed to advise you that our client considers your previous correspondence to Council does not constitute a claim for compensation of the kind required by the Local Government (Planning & Environment) Act 1990.  Further, the claim dated 26 March 1998 and received by Council on 27 March 1998, does not constitute a claim for compensation of the kind required by the Act as it is statute barred, the 23 February 1998 being the last date upon which a claim for compensation could be lodged with the Council.”

It is accepted that despite the provision of section 3.5 (7B) of the Local Government Act that a claim is to be made on a prescribed form, no such form existed.   However, it is not suggested that the information supplied in the two letters of 5 November 1996 and 31 December 1997 did not furnish the necessary details.

Three main submissions have been made on behalf of the respondent Council.   It is suggested that the correspondence sent within the limitation period of three years amounted only to notification of an intention to claim, not a claim.   Secondly, the thirteen month delay between November 1996 and December 1997 constitutes a significant chronological factor, and thirdly the submitting of a formal claim outside the statutory period made ineffectual the two earlier letters.   In brief, although it is accepted that the applicant made clear his intention before the expiry date, he did not make the formal claim until the time allowed had expired.  

I accept that the first letter, that of 5 November 1996, should be regarded as no more than indicating an intention to make a claim.   However, when read with the second letter, that of 31 December 1997, I am satisfied that together they constituted a valid claim.   The delay between the first and second letter is lengthy.   However, the second letter clearly referred to the first and I do not consider there is anything significant in this point.   The respondent itself was tardy in replying to correspondence.    Further, I do not consider the making of a formal claim outside the statutory period can override the effect of the previous letters.   If they constitute a valid claim the subsequent “formal” claim cannot be used to the detriment of the applicant.   It should be regarded as a confirmation of the earlier claim rather than a claim in itself.    Consequently I consider that the applicant is entitled to the declaration sought.