Caloundra City Council v. Netstar Pty Ltd
[2007] QPEC 9
•23 February 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Caloundra City Council v Netstar Pty Ltd [2007] QPEC 009
PARTIES:
CALOUNDRA CITY COUNCIL
Applicant
v
NETSTAR PTY LTD (ACN 058 304 573)
Respondent
FILE NO/S:
BD 2107/03
DIVISION:
Planning and Environment
PROCEEDING:
Application for Declaratory Relief
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
23 February 2007
DELIVERED AT:
Brisbane
HEARING DATE:
20, 21 March 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
1 Declare that the Order in Council (OIC) which was published in the Gazette on 17 November 1984 (the 1984 OIC) and which notified the approval of the Governor in Council that land described as lots 7, 8 and 9 on RP 181945 may be used for the purpose of the erection and use for residential purposes of not more than 60 townhouses is of no continuing force and effect
2 Declare that the land may not lawfully be used for the purpose referred to in the 1984 OIC
3 Declare that the purported approval of building works on the land by Andrew Stewart of Country and Coastal Certifiers on 18 July 2002 was ultra vires
CATCHWORDS:
PLANNING LAW – CONSTRUCTION OF STATUTES, BY LAWS AND ORDERS IN COUNCIL – whether Order in Council granted by State Government in 1984 is still of continuing force and effect – whether revoked by subsequent legislation (including planning schemes)
Acts Interpretation Act 1954
City of Brisbane Town Planning Act 1964
Integrated Planning Act 1997
Legislative Standards Act 1992
Local Government Act 1936, s 33
Local Government (Planning and Environment) Act 1990
Statutory Instruments Act 1992Cases considered:
Ace Waste Pty v Brisbane City Council (1999) 1 Qd R 233
Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353
Attorney-General (Qld) v AIRC (2002) 213 CLR 485
Byrne Bros Pty Ltd v Maryborough City Council (1984) 54 LGRA 419CMB (No 1) Pty Ltd v Cairns City Council (1997) 96 LGERA 306
Cameron v Noosa SC [2006] QCA 109
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1Durrisdeer Pty Ltd v Nordale Management Pty Ltd (1998) 1 Qd R 138
Goodwin v Phillips (1908) 7 CLR 1
Kentlee Pty Ltd v Prince Consort (1998) 1 Qd R 162
Kingsway Investment Ltd v Kent County Council [1969] 2 QB 332 (CA)
McDonald v Douglas Shire Council [2002] QPELR 461
Makucha v Albert Shire Council (No 2) (1993) 81 LGERA 250
Maybury v Plowman (1913) 16 CLR 468
Palais Parking Station Pty Ltd v Shea (No 2) (1977) 40 LGRA 296
QML v Blewett (1988) 84 ALR 615
Resort Management Services Ltd v Noosa Shire Council [1997] 2 Qd R 291
Saraswati v R (1991) 172 CLR 1
Wain v Maroondah City Council (2000) 112 LGERA 272
Wik Peoples v Queensland (1996) 187 CLR 1COUNSEL:
D Gore QC and R Litster for Caloundra City Council
W Sofronoff QC and P Bickford for Netstar Pty Ltd
SOLICITORS:
Phillips Fox for Caloundra City Council
Blake Dawson Waldron for Netstar Pty Ltd
In 1984 the State Government of the time overrode the wishes of the local authority for Caloundra and, by an Order in Council (OIC), permitted the development of town houses on land at Ridgewood Road, Little Mountain. The development has never proceeded and much has happened in a local town planning and State legislative sense in the intervening years – three town planning schemes, and two planning statutes. Council seeks declarations that the OIC is of no continuing force and effect and the land cannot, now, be lawfully used for the purpose it allowed. Council wants, in the words of Lord Denning, ‘…to throw out the stale permissions so as to make way for fresh ones’[1].
[1]Kingsway Investment Ltd v Kent County Council [1969] 2 QB 332 (CA) at 342
Netstar says the 1984 OIC is still good despite the passage of time, and legislation. Its position rests on a principle recently reiterated by the Court of Appeal in Cameron v Noosa SC [2006] QCA 109[2]: that legislation should not be construed to deprive a person of property or its beneficial enjoyment without compensation, unless Parliament has clearly expressed that intention[3].
[2]Per McMurdo P at [25]
[3]Wik Peoples v Queensland (1996) 187 CLR 1, per Gaudron J at 155, and Gummow J at 197
The parties exchanged pleadings. Although Netstar had earlier raised some factual disputes and positive defences it abandoned them at the hearing and, in essence, simply demurred from Council’s stated grounds for the relief it sought[4]. Section 4.1.21(1)(c) of the Integrated Planning Act 1997 (IPA) permits proceedings for declarations about ‘… the lawfulness of land use or development’. This provision embraces what is to be considered here.
[4] Mr Sofronoff QC, for Netstar, indicated he was content for the matter to be dealt with as an application for summary judgment by Netstar (on the basis Council’s application did not disclose any ground for the relief sought) or as the determination of separate questions of law.
Relevant statutory provisions, facts and circumstances
The first, relevant planning scheme of this Council (formerly Landsborough Shire Council) was promulgated in 1982 as an Interim Development Bylaw (IDB) under the Queensland legislation which governed town planning at the time – the Local Government Act 1936 (LGA). The IDB provided that any development on the land at Ridgewood Road required Council consent, which was twice refused to Netstar’s predecessor.
The LGA, under s33(6B), reserved to the State the power to override the decisions of local authorities, a process which was ratified by Order in Council under s 33(6B)(l):
(l) Where the Governor in Council approves of a recommendation by the Minister, it shall be lawful, in accordance with that approval, to use the land or erect or use a building or other structure on the land, the subject of the approval
The Governor in Council shall notify his approval by Order in Council.
Netstar’s predecessor applied to the State Government which, despite Council’s opposition, signified an intention to allow the proposal. The requisite OIC was published in the Gazette on 17 November 1984 and amended (immaterially) a few weeks later. It approved the development of the land for up to 60 townhouses, subject to conditions set out in a document of the same date and referred to in the OIC.
Netstar is the trustee of the Palmer Motel Unit Trust and has been the registered proprietor of the land since 23 September 1996[5]. Netstar and its forebears were duly registered corporations and, it is accepted, have at all material times been the registered owners of the parcel to which the OIC relates: Lots 7, 8 and 9 on RP 181945.
[5] Between 1983 and 1995 Legal and Specialised Accounts Pty Ltd acted as trustee, and was the registered owner. That office was filled by another company, Closeridge Pty Ltd in 1995-96, until Netstar assumed the role.
In 1987 a new planning scheme was introduced for the shire, under which the land was included in the Rural Residential zone. In 1991 the LGA was replaced by the Local Government (Planning and Environment) Act 1990 (P&E Act). Another new planning scheme was introduced in 1996 which, again, zoned this land Rural Residential and prohibited multiple dwellings. IPA commenced in 1998.
One or more of these things extinguished, Council says, the effect of the OIC and any benefit under it; or that, if the OIC did survive until 1995, it was expunged in that year by the effects of the Statutory Instruments Act 1992.
In late 1987 one of Netstar’s predecessors lodged a building application with Council for Stage 1 of the development, comprising 10 townhouses. The application was approved a year later, on 1 November 1988. Some earthworks were undertaken on the land in 1991 and on 24 June of that year another building application was lodged, for the construction of 10 townhouses for the second stage of the development (described as Stage 1A). On 19 June 1995 a third application was made to Council for building approval for Stage 1, and it was approved on 31 August 1995. On 30 May 2002 Netstar lodged another building application for the construction of eight townhouses, and office and car park and some work was carried out on the land in June 2003. This work ceased when these proceedings commenced.
The 1984 OIC gave notice that the Governor had approved the Minister’s recommendation:
…that the land identified and described in Part A in the Schedule hereto be used for the purposes specified in Part B of the said Schedule subject to certain conditions set out in a document entitled ‘Conditions relating to development of land located at 14 to 18 Ridgewood Road, Little Mountain, Caloundra, described as lots 7 to 9 inclusive on RP 181945, Parish of Bribie’.
Part B of the Schedule described the purposes as ‘… the erection and use for residential purposes of not more than 60 townhouses’. Condition 1 dealt with development conditions under 11 headings. Condition 2 provided:
The land shall be subdivided into seven (7) allotments basically in accordance with Plan No. 1937-3 (prepared by Gutteridge, Haskins and Davey Pty Ltd) to provide for stage development and each stage shall be constructed in conformity with the Local Government Act 1936-1984 and the Building Act 1975-1984 in a manner which will permit a building units plan to be sealed by the Council for each stage in accordance with the Building Units and Group Titles Act 1980-1984.
Section 33(6B)(a) of the LGA provided:
Approvals under bylaw to use land etc on recommendation of Minister
(a) The Governor in Council on the recommendation of the Minister may at any time and from time to time approve the use of land for any purposes or the erection or use for any purpose of a building or other structure on land where such use, or erection or use is regulated and controlled by a bylaw made by the Local Authority pursuant to subsection 21(b) notwithstanding the provisions of that bylaw.
Section 33(21)(b), to which this provision referred, was the source of the power to make an IDB.
Neither party had been able to turn up any case in which the terms and effect of s 33(6B), or Orders in Council issued pursuant to it, have been considered.
Was the 1984 OIC repealed by the 1987 Order in Council notifying the new planning scheme?
Caloundra’s new planning scheme was introduced in 1987. The primary questions are whether or not the OIC notifying that scheme impliedly repealed the 1984 OIC and, whether the latter was protected under s 20 of the Acts Interpretation Act 1954 (AIA). A third question – whether or not the definition of the phrase ‘existing use’ in the 1987 scheme might save the 1984 OIC – was not relied upon by Netstar. However, because the nature of the interest granted by the 1984 OIC is germane to the other questions, it is appropriate to advert to it.
The 1987 scheme protected existing uses and defined them in these terms[6]:
The use of any premises for the purpose for which it was lawfully used before the appointed day or for which an approval, consent or permission was granted before the appointed day and which has not expired or been revoked.
The definition had two elements. The first saved lawful uses actually in existence - just as s 33(1A) of the earlier Act, the LGA, gave protection to ‘a lawful use of land’. There is no suggestion, here, of any actual use of the land for the purposes of the 1984 OIC before December 1987.
[6] Part 1, cl 1
The second element concerns the phrase ‘approval, consent or permission’ which was readily traceable to the LGA, s 33 and, in particular, s 33(16D) which concerned revocations of approvals, consents or permissions and provided that, notwithstanding any provision of a town planning scheme or bylaw made by the local authority, those approvals, consents or permissions could not be revoked save under the subsection itself. Elsewhere, the phrase also appeared in ss 33(15), (16B), (16C), and (18C).
The phrase is used, then, in a statutory context in which it is inevitably linked with the powers and duties of a local authority – with one marked exception. S 33(6B) uses quite different language; in particular, it does not refer to an approval, consent or permission, or speak of a grant or any power of revocation. The stark differences in terminology compel the conclusion that the 1984 OIC was not a form of approval, consent or permission which was contemplated by the definition in the 1987 scheme and was not, therefore, protected by the ‘existing use’ provisions of that scheme.
The principles relating to repeal by implication apply to delegated legislation, including Orders in Council[7]. They were summarised in Goodwin v Phillips (1908) 7 CLR 1, at 7:
…where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication … another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.
[7] Resort Management Services Ltd v Noosa Shire Council [1997] 2 Qd R 291; Byrne Bros Pty Ltd v Maryborough City Council (1984) 57 LGRA 419; Makucha v Albert Shire Council (No 2) (1993) 81 LGERA 250, at 255; and Palais Parking Station Pty Ltd v Shea (No 2) (1977) 40 LGRA 296, at 305
The LGA did contain an express power enabling the Governor in Council to amend or rescind any Order in Council made under the Act by another Order in Council[8]. No question about the exercise of that express power arises here; rather, the issue is whether there can be imputed to the Governor in Council an intention, by approving the 1987 scheme per the medium of a new Order in Council, to extinguish the 1984 OIC.
[8] Section 4(4)(iii)
That is not a course which has found ready favour in the courts[9], particularly when the possibility of repeal is accompanied by the risk that rights will be lost without compensation[10]. Another source of reluctance can be found in the application of the well established principle that provisions of general application give way to specific provisions, when they are in conflict[11]. That principle is the subject of a maxim: generalia specialibus non derogant, but it does not directly apply. The 1987 town planning scheme, while general, specifically applied to this parcel just as it applied to all other parcels it was intended to govern in a town planning sense, ascribing use rights or limits. That is not to say, however, that the principles underlying the reluctance to discover an implied repeal are not important here.
[9] Pearce & Geddes ‘Statutory Interpretation in Australia’ 5th Edition, para 7.10; Saraswati v R (1991) 172 CLR 1, per Gaudron J at 17
[10]Cameron v Noosa SC (supra); Wik Peoples v Queensland (supra)
[11] Goodwin v Phillips (supra) at 14; Maybury v Plowman (1913) 16 CLR 468, per Barton ACJ at 473-4; Saraswati v R (supra); and, Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353, at 359
The frequent co-existence, in the area of town planning, of multiple controls can be another source of reluctance. As Thomas J noted in Makucha v Albert Shire Council (No 2) (1993) 81 LGERA 250[12], the implication of an intention to repeal will not readily be reached in cases involving the approval of applications for development. In particular, legislation requiring a landowner to obtain an approval from one authority will not readily be assumed to repeal earlier legislation requiring approval from another.
[12] At 255
Council argues that repeal can nevertheless be implied, here, by reason of what is said to be a notable inconsistency between s33(3)(f) of the LGA which dealt with the 1987 planning scheme and s 33(6B)(1) which concerned the 1984 OIC. The former provided:
Upon the publication of (the) Order in Council the scheme shall become and be the Town Planning Scheme for the area or part of the area in question and shall have the force of law and be binding upon and be obeyed by the local authority and all persons whomsoever accordingly.
Section 33(6B)(1) provided, however:
Where the Governor in Council approves of a recommendation by the Minister, it shall be lawful, in accordance with that approval, to use the land or erect or use a building or other structure on the land, the subject of the approval …
Council’s contention is that the quite different language used in the provisions, and the apparent marked differences between their purposes, signifies a legislative intention that the lawfulness of the 1984 approval (by OIC) was not to subsist after the introduction of the 1987 planning scheme, which has the force of law and is binding upon all persons. That interpretation is said to be reinforced by LGA s 4(4)(vi) which provided (amongst other things) that all OICs would have the same force and effect as if they were enacted in the Act; and, by s 4(10) which empowered the Governor in Council to declare, by OIC, that the LGA did not apply to particular land – making it possible, then, for the land the subject of the 1984 approval to be excepted from the operation of the 1987 planning scheme.
In Byrne Bros Pty Ltd v Maryborough City Council[13] Crown land upon which the appellant had been operating its business for some time was not zoned. An earlier bylaw provided that no person could carry on any trade or manufacture in the city, save with Council’s consent. The question which confronted the Full Court[14] was whether or not that bylaw had been impliedly repealed by a new planning scheme. Two members[15] held that it had not, but only because the Crown land was not covered by the planning scheme. Connolly J expressed the tentative view that it should be regarded as impliedly repealed and, in a passage relied upon by the Council here, said at 428-429:
Chapter 23 was passed in 1948, long before there was a town planning scheme for the city. It has, however, never been expressly repealed and a very real question arises whether it has not been impliedly repealed. The Town Planning Scheme really deals, in an almost exhaustive fashion with the two questions with which Bylaw 760 deals, that is to say, where and on what conditions trades and manufactures may be carried on within the city of Maryborough. Thus, in relation to any zone, it can readily be determined whether any type of trade or manufacture is absolutely permitted, absolutely forbidden or permitted in the Council’s discretion and on such terms and conditions as the Council may impose. It seems unlikely that Bylaw 760 was intended to stand with the Town Planning Scheme. Indeed, it is impossible for it to do so even in relation to zoned land, save in the case as to which a particular trade or manufacture is in col 111, so as to be subject to the discretion of the decision of the Council. Even in such cases … the Town Planning Scheme provides machinery for dealing with discretionary cases such as the advertisement of applications and the making of public objections, and it really cannot be that Bylaw 760, which is subject to no such restrictions or safeguards, still governs such cases (emphasis added)
[13]Supra
[14] W B Campbell CJ, Connolly and Shepherdson JJ
[15] W B Campbell CJ and Shepherdson J
Thomas J also recognised that circumstances can arise where it is possible to imply an intention to repeal, and a reasonable test is to enquire if the provisions can sensibly be read together. In Makucha v Albert Shire Council[16], he said:
Where an inconsistency exists between town planning provisions and another bylaw or statute, if the various measures cannot be read sensibly together one may be impliedly repealed by the other: Goodwin v Phillips (1908) 7 CLR 1 at 7: Byrne Bros Pty Ltd v Maryborough City Council (1984) 57 LGRA 419; Butler v Attorney-General (Vic) (1961) 106 CLR 268.
[16]Supra, at 255; on appeal, (1996) 1 Qd R 53 (CA)
Wain v Maroondah City Council[17] is an example of the multiple controls mentioned by Thomas J in Makucha. Although the general provisions of the planning scheme did not apply in relation to some vegetation removal which had occurred, a local law addressing canopy trees did, and it was held that the landowners had committed an offence. Inherent in the judgment is, however, a proposition relevant here: namely, that when the question is whether or not several rights can co-exist, one may be entitled to predominate. It is logical to assume that town planning is intended, by the legislature, to be rational and comprehensible. An overarching planning scheme for an entire local authority area is the instrument which, on a logical basis, is intended to predominate.
[17] (2000) 112 LGERA 272
It is clear that there is a tension between OIC and the 1987 scheme, and between the different legislative provisions touching them. While those differences have some similarities with the circumstances arising in other cases, the ultimate question remains one which concerns the proper construction of the provisions themselves. While the 1987 scheme has nothing particular to say about things like the 1984 OIC, it is incontrovertible that the scheme is intended to affect all land within the local authority’s bailiwick. It deals, in the terms Connolly J remarked in Byrne Bros Pty Ltd v Maryborough, in an exhaustive fashion with the very right Netstar’s predecessors obtained under the OIC. The new planning scheme is all-embracing. In vivid contrast the OIC, if allowed to persist, is a cuckoo in that newly constructed nest.
The fact s 33(10) of the LGA arguably gave rise to a right to compensation if the 1984 OIC was repealed is another basis for a construction which negates the notion that the OIC was untouched by the 1987 legislation, and survived unimpaired and without any time limitation or statutory constraint[18].
[18] See Resort Management Services Pty Ltd v Noosa Shire Council (supra), per McPherson JA at 296-297
Mr Sofronoff QC (for Netstar) pointed out that, on the Council’s construction, an OIC of the kind granted here only a short time before a new planning scheme came into force would be immediately extinguished. Something of that kind did, however, occur in CMB (No 1) Pty Ltd v Cairns City Council[19] in which a rezoning approval was granted, but then extinguished by a new planning scheme which came into effect a very short time later.
[19] (1997) 96 LGERA 306
The inconsistency between the provisions under which the 1984 OIC, on the one hand, and the new planning scheme on the other, operate is sufficiently distinctive for it to be a proper implication that an intention to repeal was intended, and put into effect.
Was the 1984 approval protected under s 20 of the Acts Interpretation Act 1954 (AIA)?
In 1987 s 20(1) of the AIA provided that the repeal, by an Act, of any previous Act would not (unless the contrary intention appeared) affect any right created, acquired, accrued, established or exercisable prior to the repeal. The phrase any Act includes a reference, for present purposes, to Orders in Council[20].
[20]AIA s 5(2)
Recent decisions show that when questions involving s 20 arise analysis begins with the repealing instrument, considered in the context of s 20 and also, as the case here requires, the primary statute – the LGA[21].
[21] Attorney General (Qld) v AIRC (2002) 213 CLR 484; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1; and, see Kentlee Pty Ltd v Prince Consort Pty Ltd (1998) 1 Qd R 162
The 1984 OIC is not, on its face, personal to any named party. In the context of town planning law, the rights protected under s 20 are those conferred on a specific individual before the relevant amendment or repeal occurs. In Ace Waste Pty v Brisbane City Council [1999] 1 Qd R 233 Davies JA and Moynihan JA said, at 236:
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.
An analogy can be drawn between the 1984 OIC and what were called ‘as of right’ uses of land (before the introduction of the Integrated Planning Act 1997) which were changed by a new, later planning scheme. Those rights, unless acted upon, disappeared with the new scheme. In the present case Netstar did not have the normal rights accruing to a party which has received local government approval to develop land; rather, the OIC simply identified a lawful use of a specific parcel for a specific purpose – but, again, without reference to any individual[22]. Unless the actual developer or landowner with sufficient interest had moved to exercise those rights there was nothing to be lost, and nothing to be protected under s 20 of the AIA.
[22] See Kentlee Pty Ltd v Prince Consort (supra); and, Durrisdeer Pty Ltd v Nordale Management Pty Ltd (1998) 1 Qd R 138
Under the 1987 planning scheme development of the type permitted by the 1984 OIC for this specific site was plainly prohibited. That has already been held to be something which amounts to a clear inconsistency and, it may be said, something which signifies an intention to change use rights. Relevantly, as already observed, s 33(10) of the LGA provided a right to claim compensation if an interest of this kind was injuriously affected by the new planning scheme (and that scheme had, as previously discussed, provisions designed to protect existing uses). All of these circumstances tend to point to the displacement of the operation of s 20.
In Resort Management Services Ltd v Noosa Shire Council[23] a right to compensation accrued to the appellant under the provisions of the LGA when a new planning scheme came into effect in 1990, but was subsequently lost when the Planning and Environment Act was introduced in 1991. The issue on appeal concerned the question whether s 20 saved the right. McPherson JA[24] discussed the relationship between s 20 and the new planning scheme. His Honour held[25] that it was primarily because the LGA conferred an entitlement to compensation that it could be regarded as disclosing an intention that, upon the repeal of the Town Planning Scheme, existing rights under that scheme were not preserved by s 20[26]:
Considered apart from other statutory provisions, it may be that the effect of a provision in the form of s 20(1)(c) of the AIA would have been to preserve the owner’s right to continue using the land for all purposes previously permitted by the 1985 Town Planning Scheme despite the 1990 amendment. But if that were so there would of course be no occasion at all for compensating for any impairment of rights … it is however clear that s 20(1)(c) did not and was not intended to preserve for an owner a right to insist that the provisions of the 1985 scheme continued to apply to land as if it were not affected by the introduction of the new scheme in 1990. The application of s 20(1)(c) of the AIA is liable to be displaced by `a contrary intention appearing in any Act’ …
Apart from considerations of the inconvenience liable to arise from adopting any other interpretation, a compelling reason for thinking that s 20(1)(c) was not, at least in general, intended to preserve the operation of a superseded town planning scheme is that the LGA has, so far as relevant, always embodied a provision for compensating persons injuriously affected by a prohibition or restriction in such a scheme, or by the coming into operation of a provision of a scheme … conferring an entitlement to compensation for rights lost is altogether inconsistent with an intention to preserve those rights unimpaired.
[23]Supra
[24] Fryberg J delivered separate reasons; Moynihan J agreed with both McPherson JA, and Fryberg J
[25] At 298
[26] At 296-297
Those principles may be applied quite fairly to the rights arising under the 1984 OIC, which are not dissimilar to those extended by a town planning scheme. There is no basis for concluding s 20 preserves rights which, under the planning scheme or an OIC, have simply remained inchoate – in that, like a planning scheme, the OIC simply announces a general right to the world but no more. Unless and until the OIC is acted upon, no right upon which s 20 might operate actually arises.
Did the 1984 approval by OIC lapse pursuant to the Local Government (Planning & Environment) Act 1990 (P&E Act)
If, contrary to what has already been concluded, the 1984 OIC survived Caloundra’s 1987 planning scheme it did not, for reasons which follow, subsist past a date which was four years after the introduction of the P&E Act which came into force on 15 April 1991. The P&E Act contained customary transitional provisions designed to preserve existing rights. Both parties focussed, in particular, upon s 8.10 which read:
8.10
…(8)each approval, consent or permission (but not any conditions attaching to the approval, consent or permission) granted by a local authority or the Governor in Council prior to the commencement of this Act, is to continue to have force and effect as if it were an approval, consent or permission, as the case may be, made pursuant to this Act (but any conditions attaching to the approval, consent or permission are still to apply as if this Act had not commenced).
(8A)Subject to subsection (8B) and for the purposes of subsection (8) where an approval, consent or permission is subject to a time constraint, the period of that time constraint is to be measured from the date of the granting of that approval, consent or permission.
(8B)A consent referred to in subsection (8) does not lapse pursuant to s 4.13(18), until 4 years after the commencement of this Act.
Elsewhere, s 4.13(18) provided:
(18)A permit issued pursuant to subsection (12) lapses where –
(a)the use of land or the use or erection of a building or other structure on land, the subject of the approval in respect of which the permit was issued, has not been commenced within 4 years of the date of issue of the permit or such extended period or periods as the local government upon application being made to it therefore approves; or
(b)a use of any premises established pursuant to the permit has ceased for a period of at least 12 months.
While Netstar accepts that it has not undertaken, within the relevant period, any of the activities described in s 4.13(18), that is, it contends, irrelevant because the 1984 OIC was not a permit and the section therefore has no application. Further, Netstar says, s 8.10(8) preserved approvals granted by the Governor in Council prior to the commencement of the P&E Act; and, subsection (8A) does not apply because the OIC contained no time constraint, and subsection (8B) also fails to touch the OIC because it was not a ‘consent’.
While the new Act contained no equivalent to s 33(6B) of the LGA, s 8.10(8) refers, however, in expansive terms to an ‘approval … granted by … the Governor in Council prior to the commencement of (the P&E Act)’ – a phrase which might readily be thought to signify something of the ilk of the 1984 OIC. Despite the lack of precise equivalence, it is not unreasonable to deduce that the legislature intended that one effect of s 8.10(8) would be to embrace things, like this aged OIC, as something having the same force and effect as if it were a consent made under the P&E Act, pursuant to s 4.13.
It is but a short further step to conclude that s 8.10(8B) means, when it refers to a ‘…consent referred to in subsection (8)’, something which, again, embraces old OICs.
While the drafting might not unfairly be described as loose that is not, necessarily, unsupportive of the conclusion that subsection (8B) was simply a shorthand way of picking up each and every type of approval referred to in subsection (8). An example of this approach to construction, and acceptance by the Courts of the proposition that some drafting may involve a form of shorthand can be found with respect to s 4.13(18)(b) in McDonald v Douglas Shire Council [2002] QPELR 461[27].
[27] And, on appeal, (2004)1 Qd R 131
Both McLauchlan QC DCJ[28] (at first instance) and the Court of Appeal[29] acknowledged there was some imprecision or looseness in the language of the statute which fell to the Courts to resolve. Toward that end, and adopting a purposive approach, the statutory language should be interpreted in a fashion which was consistent with an apparent intention to ensure that stale approvals did not remain stale – in modern parlance, the legislature intended that the recipients must ‘use it or lose it’.
[28] At pp 468-469
[29]Per de Jersey CJ, Williams JA, Wilson J
It would be surprising if the legislature simply forgot, or chose to ignore, an OIC of the kind which falls to be considered here when it came to introduce the rights of preservation contained in s 8.10. It would be equally surprising if, alert to the existence of such a thing, the legislation nevertheless chose to allow the right to subsist notwithstanding the very careful and detailed attention paid, in the provision, to the different kinds of authorisations an authority, with power over town planning decisions, might choose to issue.
It is not an improper exercise to consider if, and how, the 1984 OIC might be categorised under the 1987 legislation. The ‘best fit’, under s 8.10, is the ‘permit’ referred to in s 4.13(18). The fact some slight contortion is necessary to identify a form of approval, consent or permission under the P&E Act which might incorporate the OIC may itself be an indication that s 8.10 is intended to be construed broadly, in a purposive way, and, ultimately, in a manner which is inclusive of all of the means by which a landowner might have obtained permission from a government authority to develop land.
The LGA and the P&E Act were not markedly different in the way they addressed what were usually called ‘consents’. The new legislation, IPA, specifically provided for an application for consent to use land, or erect a building and allowed local authorities a broad decision-making power to approve unconditionally, or subject to conditions, or to refuse (and for appeals to this Court). The LGA, however, left those aspects of the process up to the individual town planning schemes or bylaws. It is tolerably clear, I think, that the power referred to in LGA s 33(6B) was intended by the legislature to be absorbed in one or more of the various kinds of approvals, permits or consents referred to in the P&E Act ss 4.12 or 4.13 and then, logically, in s 8.10.
The result is that, if the 1984 OIC survived the 1987 planning scheme, it was later expunged by the P&E Act.
Did the OIC expire under the Statutory Instruments Act 1992 (SIA)?
The SIA provided for the expiry of certain statutory instruments including OICs after 10 years[30]. Netstar contends that the Act has no application here for three reasons: first, s 4 provides that its application may be displaced by a contrary intention appearing in the instrument and, here, an intention of that kind can be found in s 8.10(8) of the P&E Act. For reasons already explored I am not persuaded that argument has any force.
[30] Ss 7, and 54
Secondly it is said that the 1984 OIC itself contains a contrary intention because it is not expressly limited in time and cannot rationally be construed as an approval which, under the SIA, would have rendered the use it permits unlawful after 10 years.
Lastly, it is submitted by Netstar that concurrent legislation, the Legislative Standards Act 1992, aimed, on its face, to ensure that legislation complied with fundamental legal principles including an acknowledgment of the rights of individuals, a guarantee that those rights would not be adversely affected retrospectively, and a promise that any compulsory acquisition of property would be the subject of fair compensation. Proper obeisance to those principles means, it is said, that the SIA could never be construed in a way which provides for the automatic termination of property rights of the kind bestowed by the OIC.
Under the SIA if the 1984 OIC is subordinate legislation[31] of a legislative character it would, then, expire on 1 September 1995, the first relevant date occurring after the tenth anniversary of the making of the Order itself on 17 November 1994.
[31] Ss 7, 8(a) and 9(1)(b)
There are two compelling indicators that the 1984 OIC was of a legislative character: first, upon publication in the Gazette the 1984 OIC has the same force and effect as if it were enacted in the LGA: s 4. Secondly, the empowering legislation, s 33(6B) is on its face designed to override other legislation: in particular, the IDB. In QML v Blewett (1988) 84 ALR 615 Gummow J addressed (in the Federal Court) the difference between determinations of an administrative character on the one hand, and a legislative character on the other. His Honour explained that the traditional rule that something is of a legislative character if it is of general application, while executive authority is more likely to have been exercised in particular instances was not, always, correct[32].
[32] At 635
As Gummow J went on to explain[33] some kinds of legislation may repose, in a member of the executive, an authority of an essentially legislative nature. S 33(6B) gives the Governor in Council an authority of that kind, which creates a new right (albeit an individual one) rather than the mere application of an existing law in a particular instance.
[33] At 636
There are, nevertheless, indications of a contrary intention within the 1984 OIC itself. It permitted the construction of buildings but extinction under the SIA would render these structures unlawful after 10 years. The legislature has also taken care, in the P&E Act, to exempt planning instruments made under that Act (s 1.5). Finally, the absence of any right to compensation, in contradistinction to other non-lapsing statutory planning legislation, may also be accepted as a contrary intention. These factors tell against the SIA operating against this OIC in the way Council contends.
The effect of the 1996 planning scheme
Under Caloundra’s later planning scheme, introduced in 1996, the subject land was again zoned Rural Residential and the use permitted in the 1984 OIC (i.e. multiple dwellings) was specifically prohibited. The issue is, then, much the same as that which arises in respect of the earlier 1987 planning scheme, subject to any relevant differences in their provisions (or between the different State instruments governing town planning at each date, the LGA and the P&E Act).
There were differences between the earlier and later planning schemes: the definition of ‘existing use’ was narrower and only protected a use actually in existence[34]. S 3.4(3) (of the P&E Act), which concerned pre-existing approvals, only refers to approval of an application by the local government, or Governor in Council, unlike s 33(6B) of the LGA which spoke of a recommendation by a Minister.
[34] Clause 9.1; and, see P&E Act, s 3.1(1)
These differences mean the signposts pointing towards an intention to extinguish unusual things like the 1984 OIC are less readily discernable in the 1996 scheme, read in concert with the P&E Act, than under the 1987 scheme. The indicators are, on balance, insufficiently compelling for it to be concluded that repeal ought to be implied.
The effect of the Integrated Planning Act 1997 (IPA)
IPA commenced on 30 March 1998, and the P&E Act was repealed. IPA contains no provision specifically addressing OICs although ss 6.1.23 and 6.1.51 expressly preserve certain approvals. The specific question, the parties agree, is whether the operation of s 20 of the AIA is displaced by IPA’s transitional regime, appearing in Chapter 6.
By 1998 s 20 of the AIA had been replaced and, relevantly, s 20(2) provided that the repeal of an Act did not affect a right acquired or accrued under that Act. S 4 provided that the application of the AIA could nevertheless be displaced, wholly or partly, by a contrary intention appearing in any Act. Council points to two indicia that any presumption under s 20 was, here, displaced.
Section 6.1.23(2) of IPA provided that, despite the repeal of the P&E Act, each continuing approval and any conditions attached to a continuing approval had effect as if the approval and the conditions were a development approval in the form of a preliminary approval or development permit, as the case may be. In s 6.1.23(1) continuing approvals were defined to include consent permits under s 4.13 of the P&E Act. Importantly, IPA did not carry over rezoning approvals under the previous legislation as a type of development approval, as the explanatory notes for clauses 6.1.23 and 6.1.24 show[35]. Section 6.1.51 of IPA does, however, ‘transition’ OICs concerning Crown land made under the LGA, the P&E Act, or the City of Brisbane Town Planning Act 1964.
[35] And, see a similar explanatory note in the Building and Integrated Planning Amendment Act, No. 13 of 1998, for section 6.1.35A.
Those provisions make it clear the transitional regime in Chapter 6 of IPA was intended to be wide ranging, and comprehensive. That wide reach, considered in concert with the expressed aim of the Act (to manage all processes by which development occurs[36]) makes it more likely than not that IPA’s transitional provisions were always intended to displace the operation of s 20 of the AIA, and manifest sufficient contrary intention to affect that. If the 1984 OIC survived the statutory ordeals already traversed, it was caught by Chapter 6 of IPA.
[36] Section 1.2.1(b)
Conclusion
The rights granted under the 1984 OIC have been extinguished by subsequent planning legislation, and Council is entitled to declaratory relief to that effect.
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