Cameron v Noosa Shire Council
[1996] QCA 486
•3/12/1996
| IN THE COURT OF APPEAL | [1996] QCA 486 |
| SUPREME COURT OF QUEENSLAND |
Appeal No. 46 of 1995.
Brisbane
[Cameron & Ors. v. Noosa Shire Council]
BETWEEN:
IAN MILNE DIXON CAMERON, HARLEY ROSNELL and ELEANOR ARMSTRONG WATSON
(Plaintiffs) Appellants
AND:
COUNCIL OF THE SHIRE OF NOOSA
(Defendant) Respondent
___________________________________________________________________________
Pincus J.A. Davies J.A. Shepherdson J.
___________________________________________________________________________
Judgment delivered 3 December 1996
Joint Reasons for Judgment of Pincus J.A. and Davies J.A., separate concurring Reasons for
Judgment of Shepherdson J.
___________________________________________________________________________
1. APPEAL ALLOWED IN PART.
2. ORDERS MADE BELOW SET ASIDE AND IN LIEU ORDER THAT THE CLAIM AND COUNTER-CLAIM IN THE PROCEEDINGS BE DISMISSED.
3. THE APPELLANTS ARE ORDERED TO PAY ONE HALF OF THE COSTS OF THE RESPONDENT COUNCIL, HERE AND BELOW.
___________________________________________________________________________
CATCHWORDS: Jurisdiction of Supreme Court - power to grant specific performance of agreement constituting a compromise and consent order - merger - enforcement of orders of other courts or tribunals - registration under r. 24 of Local Government Court Rules 1966 - whether judgment in favour of party against whom an order operates.
Power to make declaration - jurisdiction of Planning & Environment Court is exclusive - Local Government (Planning & Environment) Act 1990
Validity of Order of Local Government Court - failure to specify time - s. 33(7)(b) Local Government Act 1936.
Obligation to Prepare Deed - conditions imposed in Court order - s. 33(7)(c) Local Government Act 1936 - whether condition enforceable - uncertainty.
| Counsel: | Mr P H Morrison QC, with him Mr P J Favell, for the appellants. Mr F L Harrison QC, for the respondent. |
| Solicitors: | Rinaudo & Co. for the appellants. Wakefield Sykes for the respondent. |
| Hearing date: | 15 April 1996. |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 46 of 1995.
Brisbane
Before Pincus J.A. Davies J.A. Shepherdson J.
[Cameron & Ors. v. Noosa Shire Council]
BETWEEN:
IAN MILNE DIXON CAMERON, HARLEY ROSNELL and ELEANOR ARMSTRONG WATSON
(Plaintiffs) Appellants
AND:
COUNCIL OF THE SHIRE OF NOOSA
(Defendant) Respondent
JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND DAVIES J.A.
Judgment delivered 3 December 1996
This is an appeal from a judgment of the Supreme Court in an action relating to an order made in the Local Government Court in 1989. The plaintiffs, now appellants, applied to the respondent Council for rezoning of land in which they were interested, north of the Noosa River and fronting the ocean. The respondent approved the application for rezoning subject to conditions with which the appellants were dissatisfied; they appealed to the Local Government Court against the conditions and that litigation was settled, the parties’ agreement being reflected in a consent order made by Judge Row. It was ordered that, subject to the appellants entering into a certain rezoning deed, the respondent Council should make application to the minister for the rezoning sought. The case raises questions as to the precise legal consequences of the order, and some rather technical considerations arising from the circumstances that the Local Government Court had no power to enforce its order, nor any power, it is said, to alter it to meet changing circumstances.
For reasons which are to some extent discussed below, no rezoning deed was executed or even prepared, so that the condition, fulfilment of which was to give rise to the respondent’s obligation to apply to the minister for rezoning, was not satisfied. As was pointed out by the appellants’ solicitors in letters to the Council dated 3 January 1990 and 4 October 1990, the court’s order did not require the Council to apply for rezoning until the appellants entered into a deed. The plaintiffs sued in this Court in 1993 for a certain declaration and an order that the respondent settle the rezoning deed and present it to them for signature; the application for a declaration was not pressed below, but in argument in this Court it was suggested for the appellants that a declaration in their favour, in some appropriate terms, should be made.
The respondent Council resisted the appellants’ suit and counter-claimed for relief from the effects of the order of the Local Government Court. The primary judge dismissed the appellants’ claim and ordered on the counterclaim that the order of the Local Government Court be stayed, under O. 45 r. 1 of the Rules of The Supreme Court. In what follows we deal with a number, but not all, of the issues raised in the appeal; it will however be noticed that it would have been enough, in order to dispose of the case, to decide some only of the points we have discussed.
History of Dispute
The following account of the dispute does not purport to be comprehensive; it is selective and excludes, or refers only briefly to, events which seem to us of marginal importance, for present purposes. Despite this culling, the account given is perhaps unnecessarily full because the only question which it is sought to answer by reference to it is whether the appellants were at relevant times willing to sign a deed in the terms contemplated by the order made in the Local Government Court in 1989. We must add that the task of setting out the history has not been made easier by the absence from the record of any proper index, identifying the documents from pp. 57 to 365.
The order which is in issue was made by the Local Government Court on 10 November 1989 and a few days later the Council’s solicitor wrote to say that he would forward the rezoning deed shortly. He did not do so, and that was the subject of some complaint in this Court; but ground for such complaint disappeared when, on 3 January 1990, the solicitors for the appellants wrote to the Council to say that they wanted the order amended, being dissatisfied with the agreed conditions. The Council’s reply was to the effect that agreement on variation of the conditions was possible. On 21 February 1990 the solicitors for the appellants wrote to the Council again, setting out specifically what amendments were required. There followed some telephone discussion and on 23 April 1990 the appellants’ solicitors wrote again making proposals for amendment; a particular concern of the appellants was a condition requiring amalgamation of the site prior to the rezoning becoming effective.
The Council’s reply, dated 1 May 1990, agreed to one proposed amendment subject to the Council "having the legal power to do so", but would not agree to any change with respect to amalgamation. A further letter followed, dated 11 May 1990, saying that the Council’s legal advice was that it could not agree to any amendment as the Council had "no power other than to deal with the matter as determined by the Court". Three weeks later the Council’s solicitor wrote again, asking whether the appellants intended to enter into the deed in terms of the court’s order. It is said in the record that a similar letter was written on 20 June 1990, but we cannot find that in the record. It is agreed that no reply was ever received to the letter of 20 June.
On 6 August 1990 the then Deputy Premier, having received representations from one of the appellants, wrote to the Council expressing concern about the reasonableness of three conditions of the proposed rezoning and asking that the Council examine the possibility of amending the court’s order. On 4 October 1990 solicitors for the appellants wrote to the Council, again arguing in favour of the view that the Council could properly agree to an amendment of the conditions in the order and requesting specific amendments. On 17 October 1990 the Council solicitor wrote to the appellants’ solicitors referring to previous correspondence and in particular to letters of 31 May and 20 June, "seeking your clients’ intentions with respect to entering into a rezoning deed as required by the said order to which you have not replied". The letter asked whether the appellants were prepared to enter into a rezoning agreement embodying the terms of the order. That was replied to on 30 October, by new solicitors on behalf of the appellants, asking that the amendments requested on 4 October be considered and that there were a small number of "other minor amendments" which were desired. On 7 November the same solicitors wrote to the Council again, indicating the then required amendments and asking for a conference. The reply, dated four days later, said that the Council regarded the matter as at an end.
However, that proved not to be the Council’s final word. The appellants’ solicitors wrote to the Council on 22 November 1990, in effect asking for further consideration of the position, and on the same day they renewed the complaint formerly made to the Deputy Premier. On 6 December 1990 one of the appellants wrote to members of the Council a letter referring to the history of the matter and asking for co-operation. On 21 January 1991 the appellants applied to Judge Row for directions requiring the Council to continue negotiations and prepare the deed; that application was dismissed three months later. On 25 January 1991 one of the appellants wrote to the Council complaining about the conditions which had been agreed. The letter included the following passage:
"The amalgamation. Park Strip, New Road and two new road easements all involve new titles and stamp duty. We are not paying stamp duty, having a refusal and being left with our portions sliced up with no use for the new titles".
This was a firm enough attitude which indicates that in certain respects the conditions alluded to were simply not acceptable. The solicitor’s reply, made without prejudice to the Council’s previous intimation that its obligations were at an end, inquired whether the matters raised at that stage were the only amendments sought. On 10 April 1991 one of the appellants wrote to ask that the deed be drawn up. The Council’s solicitor appears to have replied to that by a letter to the then solicitors for the plaintiffs, asking if the other appellants were prepared to execute the deed. On 15 July 1991 the Council’s solicitor wrote to one of the appellants, again saying that the Council considered its obligations to be at an end, but adding that if all the appellants were prepared to sign the deed the Council "would no doubt further consider its position". On 15 October 1991 the appellants applied to the Local Government Court seeking a declaration that the original approval was still in force. That was refused on 1 November, but in the meantime the Council’s solicitor wrote to one of the appellants saying that if the parties were all prepared to sign the deed it might obviate the need for the proceedings. It is unnecessary to pursue the history further, but should be added that the primary judge took the view that for most of a period of 5 years from 1989 the appellants had tried to insist on changes in the conditions annexed to the 1989 order.
The important point is that from November 1989, when the Local Government Court’s order was made, until at earliest November 1991, the appellants attempted without success to persuade the Council to amend the conditions; the nature of the amendments sought varied, but there were certain consistent themes. Although they were on a number of occasions asked to do so, at no time during that period of two years would the appellants affirm that they were prepared to execute a deed in accordance with the order. It was argued by Mr Morrison Q.C., for the appellants, in effect, that the appellants proceeded sensibly and expeditiously, so far as concerned matters such as dealings with the Beach Protection Authority and an application for subdivision. Accepting that, it must surely be relevant to the exercise of any discretion this Court has, that for two years after the making of the order they now seek to enforce against the Council, they consistently declined to accept its terms and failed to give an assurance that they would sign such a deed as the order contemplated. We must add that, as is evident from the account given above, the appellants argued in effect that some of the conditions were harsh and too unfavourable to them; the correctness or otherwise of that proposition is not relevant to the present proceedings, for this Court has not the legal power to amend the conditions, nor to adjudge their fairness or reasonableness. The factual and legal background against which the order was made in 1989 has changed since then; most importantly, the terms of the planning scheme have changed in relevant respects; but it is unnecessary to discuss this aspect.
Jurisdiction of Supreme Court
In the reasons of the primary judge there are mentioned two possible sources of jurisdiction. One is this Court’s power to decree specific performance and to make orders designed to achieve the result that the decree is carried into effect and the other is the Court’s power under the enforcement rule discussed below. Mr Morrison Q.C. made reference to the former possibility during the course of argument, but cited no authority in favour of his contention that an order having the effect of forcing the respondent to carry out its obligations under the 1989 order should be made. A compromise embodied in a consent order may be set aside on grounds which would justify setting aside a contract: Harvey v. Phillips (1956) 95 C.L.R. 235 at 243, 244; later examples of application of the principle are to be found in the decision of the Full Court in General Credits Ltd v. Ebsworth [1986] 2 Qd.R. 162 at 165, and in Tresize v. National Australia Bank Ltd (1994) 122 A.L.R. 185. But we have found no authority for the view that this Court in its equitable jurisdiction will make a decree of specific performance of a consent order or of the agreement underlying the order.
An objection to granting relief by way of specific performance of a contract which has been embodied in an order of the court is the doctrine of merger; it might ordinarily be assumed that what would otherwise have been the parties’ rights to enforce the underlying contract have merged in whatever rights they have under the order: re Sneyd, ex parte Fewings (1883) 25 Ch.D. 338 at 353-354. But it is unnecessary to determine whether there was a merger here. Assuming that this Court has power to make orders by way of specific performance here, the case is plainly not one in which that course would be appropriate. First, the availability of statutory means of enforcing orders of the kind in question here is a strong consideration against using the Court’s equitable jurisdiction in aid of the appellants, to enforce the orders in their favour. Secondly, the matter dealt with above under the heading "History of Dispute" tends against enforcement of the order by granting injunctive relief.
The appellants did not suggest any other basis on which the order they seek, that the respondent prepare and submit a deed, could be made. The Supreme Court does not, at least in general, undertake to make orders to ensure enforcement of judgments of other courts, or of tribunals. The Supreme Court has a statutory jurisdiction in respect of orders of the Local Government Court, derived from r. 24 of the Local Government Court Rules 1966. That rule reads, in part:
"Any person in whose favour a judgment or order is given or made by the Court may obtain from the Registrar a certificate of such judgment or order . . . A judgment or order of the Court may be made a judgment or order of the District Court or of the Supreme Court (as the case may require) on registration of such certificate thereof in the Registry . . . and may be enforced as a judgment or order of the District Court or the Supreme Court (as the case may be)."
In the present case the respondent, with a view to obtaining the relief sought by its counter-claim, obtained registration of the order of the Local Government Court under this rule, but the appellants do not seek enforcement of the order pursuant to that registration; rather, they have argued that the registration was invalid, on the basis that the order of the
Local Government Court was not one in favour of the respondent.
In our opinion that contention is correct. Ordinarily, one would not treat the only party against whom an order operates as the one in whose favour it has been made; here, the order requires the respondent to make a certain application, but does not order the appellants to do anything at all. In answer to that, Mr Harrison Q.C. for the respondent argued that the order contained elements favourable to the Council because it involved a compromise with respect to the conditions on which rezoning was ordered. That is too broad a view; if it were correct, a consent money judgment for a plaintiff, made by way of compromise, could be said to be a judgment in favour of the defendant. The proposition that the order was not one in favour of the Council is by no means hard to reconcile with the course of events: the Council, having obtained registration under r. 24, the intention of which rule is to enable enforcement of a judgment in its favour, used the registration to put an end to the effect of the judgment.
The consequence is that this Court should not, in our opinion, make any order by way of a specific performance of the agreement underlying the Local Government Court’s order, nor should an order for a stay have been made, based on the registration of the Local Government Court’s order in the Supreme Court, for that registration was, as the appellants contend, invalid.
Power to Make Declaration
As has been mentioned above, the relief sought by the plaintiff in the statement of claim consisted of a declaration to a certain effect and an order that the Council settle a rezoning deed and present it to the appellants for signature. The declaration originally claimed was not pursued before us, but Mr Morrison Q.C. submitted that the Court could and should make a declaration, appropriately phrased, setting out its conclusion on the whole case.
An initial and rather complex problem is whether this Court is deprived of power to do
Local Government (Planning and Environment) Act
so, under s. 7.4(2) of the 1990 ("the 1990 Act"). power to grant a declaration "in respect of . . . any act, matter or thing to be undertaken in respect of the planning scheme or the use of land . . . ". The effect of this provision (s. 2.24(3)(b) of the relevant Act) has been considered by this Court in Makucha v. Albert Shire Council [1993] 1 Qd.R. 493, in which it was held that it conferred jurisdiction on the Planning and Environment Court to make a declaration with respect to the validity of certain applications for rezoning. Then in C.S.R. Limited v. Pine Rivers Shire Council [1995] 1 Qd.R. 234, it was held that the same provision did not permit the granting of a declaration with respect to the question whether or not a gazetted amendment to a scheme was valid. Here, without determining what the terms of any declaration made would be, it may be said that the question in which the appellants are interested is whether the Council has an obligation under the order of the Local Government Court made in 1989 to take such steps as are necessary to bring a rezoning deed into existence and then to apply for rezoning. It is therefore necessary to decide whether a declaration in respect of either of these matters would be in respect of "any act, matter or thing to be undertaken in respect of the planning scheme". It is our view that the words quoted, properly construed, include the issues we have mentioned. As was said in Makucha v. Albert Shire Council:
"The proposed rezoning is an act, matter or thing to be undertaken in respect
of a planning scheme, as well as being in respect of the use of land".
It follows, in our view, that under s. 2.24(3)(b), if it applies to the present case, the Planning and Environment Court has, and this Court has not, jurisdiction to make a declaration of the kind which the appellants desire.
It was submitted in the course of argument that s. 8.10(10) of the 1990 Act has the result that s. 2.24, governing the jurisdiction of the Planning and Environment Court, has no application to the dispute with which we are concerned. Section 8.10(10) reads, in part, as follows:
"Where, prior to the commencement of this Act, a proposal (other than an application referred to in subsection (9)) to obtain an approval to amend a town planning scheme was instituted (but was not approved by the Governor in Council prior to the commencement of this Act) . . . the proposal is to be dealt with as if this Act had not commenced . . . ".
Section 8.10(9) reads as follows:
"Where, prior to the commencement of this Act, an application of any kind to which this Act refers was duly made to a local authority (but was not finally approved by the local authority or the Governor in Council, as the case may be, prior to the commencement of this Act), the application is to be dealt with as if this Act had not commenced."
It does not matter which of s. 8.10(9) or (10) applies here, for they both reach the same result, as to the question raised; it appears to us however that the former is the pertinent provision. We have reached the conclusion that s. 8.10(9) would not operate to exclude the Planning and Environment Court’s declaratory jurisdiction, at least so far as declarations of the kind here in question are concerned. The reason is that there is a distinction between a law prescribing the way in which an application for rezoning is to be dealt with (an example would be the law relating to advertising the application) and one of the kind in question. For the Court to make a declaration as to the present effect of the order made in 1989 would not be to "deal with the application" for rezoning, although the fate of that application might as a practical matter be affected by such a declaration.
The consequence of this path of reasoning is that, in our opinion, the Planning and Environment Court has exclusive jurisdiction to grant declaratory relief of the kind sought, or at least foreshadowed - i.e. declarations with respect to the obligations of the Council under the order made in 1989. This Court cannot make such a declaration.
Validity of Order of Local Government Court
A contention was made on behalf of the respondent Council that the consent order made by the Local Government Court was invalid. Mr Harrison Q.C. for the Council contended that the invalidity arose from the circumstance that the order did not specify any time for the taking of steps by the Council; he contended that this was a requirement of s. 33(7)(b) of the Local Government Act 1936 in the form which it had on 10 November 1989 when the Local Government Court made its order. It is necessary to set out some parts of s. 33:
"(5) Local Authority may propose amendments of town planning
scheme.
(a) The Local Authority may at any time and from time to time make application to the Minister to amend a town planning scheme by - (i) excluding land from a zone and including the land so excluded in another zone;
. . .
(j)
An application by the Local Authority to the Minister for amendment of a town planning scheme shall be made to the Minister within 90 days or, if the Minister (who is hereby thereunto authorised) allows a longer period, the period allowed by the Minister, after the last day for the receipt of objections.
. . . (m)
(i)
Subject to paragraph (n), paragraphs . . . (j) shall not apply to an application to exclude land from a zone and to include the land so excluded in another zone, where such application is made -
. . .
(B) as a result of and in accordance with a decision of the Court in an appeal brought pursuant to subsection (7) or (18); or (C) pursuant to subsection (18D)(e). . . . (ii) An application for amendment to which, by virtue of subparagraph (i), paragraph (j) does not apply, shall be made to the Minister within 90 days or, if the Minister (who is hereby thereunto authorised) allows a longer period, within the period allowed by the Minister, after the date upon which the Local Authority shall have made a decision on the application under subsection (18)(p) or after the date of the decision of the Court as referred to in subparagraph (i)(B), whichever time is the later to expire.
. . .
(7) Appeal to Court by applicant for re-zoning of land.
(a)
An applicant to the Local Authority to exclude land from any zone and to include the land so excluded in another zone may appeal to the Court against the decision of the Local Authority refusing such application or, where the Local Authority approves the application subject to any condition, against that condition.
(b)
If the Court allows the appeal, it shall order the Local Authority to make application to the Minister for such amendment of the scheme as would if made, effect the application.
Such application shall be made in accordance with the provisions of this section relating to amendment of the scheme which are applicable in the circumstances of the case and the Local Authority shall, within the time specified in the order of the Court, commence to take and do the steps and things prescribed by this section to be done and taken by it in respect of such application.
(c) The Court may allow an appeal (whether against a refusal or a condition of approval) unconditionally or subject to such conditions as the Court deems fit, being conditions to which the Local Authority could lawfully subject its approval of the application in question. For the purpose of giving effect to this subsection the Court may make such order or orders as it deems fit."
The respondent’s contention is that s. 33(7)(b) has the effect that an order of the Court allowing an appeal of the kind in issue here must include a specification of the time within which the things mentioned in para. (7)(b) are to be done. Here, the order made no mention of time.
The difficulty lying in the way of acceptance of the respondent’s argument is that if the Court had specified a time in its order under para. (7)(b), that specification would have had no effect; there were no steps or things prescribed by s. 33 to be done or taken by the respondent in respect of the application for rezoning other than the making of the application itself. Mr Morrison Q.C., for the appellants, argued and in our view the argument is correct, that para. (7)(b) does not require a specification of time for the making of the application; that is not a step to be taken by the respondent "in respect of such application". That conclusion is strengthened by examination of para. (5)(m)(ii) quoted above, which requires that an application for an amendment of the present kind must be made within 90 days after the date of the Court’s decision or within a longer period allowed by the minister; so the requirement that a time be specified, in para. (7)(b) of the section, cannot have been intended to apply to such an application as is in question here.
It follows that the contention that the Local Government Court’s order was void for lack of specification of a time must be rejected; the Act should not be read as requiring specification of a time to take steps when there were no relevant steps to be taken.
Obligation to Prepare Deed
We have mentioned that the appellants sued for, but failed to obtain, an order that the respondent settle the rezoning deed and present the same to them for signature. It was argued for the respondent that such an order could be made only if the respondent was under a legal obligation to prepare a deed, that such obligation could be derived only from the order of the Local Government Court and that the Court’s order did not require, nor could it have required, the respondent to prepare a deed.
As is pointed out on behalf of the appellants, the respondent’s contention, if correct, reaches an odd result, namely that the Court may impose a condition requiring that the applicant for rezoning execute a deed to be prepared by the respondent Council, but has no means of requiring the Council to prepare a deed.
The Court’s power to impose conditions such as the condition requiring execution of a deed is contained in para. (7)(c) of s. 33, set out above. That is followed by a power to make "such order or orders as [the court] deems fit", for the purpose of giving effect to the subsection. It is our opinion that where the Court imposes a condition which contemplates co-operation of a certain kind between the parties it may, to give that condition effect, make such orders as are necessary to ensure that co-operation; that is not, of course, to suggest that the Court cannot make orders in other circumstances than those we have mentioned. We reject the contention that the Court had no power to order the respondent to prepare a deed for execution by the parties.
A more difficult question is whether such an order was made. The Court’s order, so far as relevant, read as follows:
"That subject to the appellants entering into a re-zoning deed incorporating the agreed conditions annexed hereto and marked with the letter "A", the Respondent is ordered to make application to the Minister for Local Government for Amendment of the Town Planning Scheme."
Examination of the conditions shows that some of them were not appropriate for inclusion in the deed, for the reason that they related to matters to be attended to before its execution. The condition relating to preparation of the deed is an example. Condition 14.01 begins by requiring the registered proprietors of the lands in question to enter into a rezoning deed; it there makes certain other provisions and continues:
"The deed shall be prepared by the Respondent’s solicitors".
It does not seem difficult to imply that the respondent shall cause the solicitors to prepare the deed, but the question is whether, so read, the sentence we have quoted amounts to an order that the respondent cause a deed to be prepared. The circumstance that the requirement that the deed be prepared by the respondent’s solicitors is in a schedule to the order, rather than in the body of the order, does not lead to the conclusion that requirements of the schedule are not part of what is ordered; the appellants’ difficulty is that the relevant requirement is part of a document which the order describes as being the agreed conditions, to be incorporated in the deed. We do not decide that a condition of rezoning imposed by an order of the Court can never be treated as part of what is ordered, so as to be enforceable directly. But in general, we should think that at least those conditions which stipulate matters to be done under the rezoning deed would not be treated as having been ordered to be done by the Court. The expectation no doubt is that the party complaining of breach of such a condition would rely on its rights under the deed.
Where the order imposes a condition requiring the performance of some act prior to execution of the deed, that would not be enforceable at all, if not as part of the order. It seems plain enough from the language of para. (7)(c) that it is intended that the order allowing an appeal shall identify requirements imposed by way of condition, and as well those which constitute orders. An order may as we have pointed out be made for the purpose of giving effect to the subsection, for example, an order that the Council make a certain application; such an order was made here. Where a requirement, included by way of condition, should rationally have been made an order it perhaps seems pedantic to hold that this mistake deprives the requirement of legal effect.
On the other hand, it is undesirable that there should be uncertainty as to the content of the obligations ordered to be carried out by the Court, a breach of which may ultimately lead to penal consequences. We have come to the conclusion that it would ordinarily be wrong to treat a requirement which is stated to be merely a condition of the rezoning deed as if it had been ordered to be carried out by the Court. What has been done may seem to be an unfortunate error; its consequence is, in our view, that the agreed order imposed no obligation on the Council with respect to preparation of the deed.
That conclusion makes it unnecessary to consider another point which was the subject of some discussion, namely whether it should be implied in the order of the Court that the Council should cause the deed to be prepared within a reasonable time.
Non-compliance with Clause 1.03
It was argued in this Court, although the point had not been taken below, that there was a breach of cl. 1.03 of the conditions of the deed, mentioned in the order of 10 November 1989, requiring a conclusion that an application for an order that the Council prepare a deed would be premature. Clause 1.03 requires, among other things, that twenty A3 size copies of the "Development Parameters" be submitted to the Council for gazettal purposes and incorporation in the deed. It is at least implicitly admitted that this was not done. Before the primary judge there was evidence from Mr G Pie of steps taken to comply with cl. 1.03; the affidavit makes reference to the development parameters, but does not assert that copies of them were submitted to the Council.
The order of the Local Government Court did not expressly make compliance with condition 1.03 a condition precedent to the Council’s obligation to apply for rezoning; it was entry by the appellants into a deed containing, amongst others, condition 1.03, which was made the condition precedent. In this respect and others like it, the terms of the order did not match well with those of the annexed conditions. For condition 1.03, so far as relevant, required submission to the Council of certain documents for incorporation in the deed; obviously that had to be done before the deed, including that condition, came into force. This structure makes no logical sense, but the intention must surely have been that those conditions which, of their nature, could only be complied with before execution of the deed should be treated as conditions to be fulfilled before execution of the deed.
Construing the order in that way, the result is that the Council’s obligation to prepare a deed incorporating, amongst other things, the twenty copies being discussed, could not come into existence until those copies had been supplied to it. It follows that, as was argued for the Council, the non-supply of those copies is in itself a sufficient answer to the appellants’ claim for an order that the Council prepare a deed.
Conclusions
The conclusions may be summarised as follows:
1. This Court has no power to make such a declaration, as to the present status of the 1989 order, as is sought; that is because the legislature has reposed that power exclusively in the Planning and Environment Court. Assuming this Court could in other circumstances make orders (for example, by way of mandatory injunction) intended to achieve specific performance in favour of the appellants of the agreement underlying the 1989 order, that power should not be exercised in the present case. Further, the Supreme Court had no power to make the order in favour of the respondent Council which was made below.
2. The argument that the 1989 order was not validly made because of its lack of reference to time for compliance is rejected.
3. If there were no other obstacle in the appellants’ path, this Court should not make an order to force the Council to comply with the 1989 order by preparing and presenting a deed, because the Local Government Court did not order the Council to prepare a deed and because cl. 1.03 of the conditions annexed to the order has not been complied with.
The consequence is that the appeal should fail, in our view, except in respect of the orders made on the counter-claim. The orders of this Court are -
1. Appeal allowed in part.
2. Orders made below set aside and in lieu order that the claim and counter-claim in the proceedings be dismissed.
3. The appellants are ordered to pay one half of the costs of the respondent Council, here and below.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 46 of 1995.
Brisbane
Before Pincus J.A. Davies J.A. Shepherdson J.
[Cameron & Ors. v. Noosa Shire Council]
BETWEEN:
IAN MILNE DIXON CAMERON, HARLEY ROSNELL and ELEANOR ARMSTRONG WATSON
(Plaintiffs) Appellants
AND:
COUNCIL OF THE SHIRE OF NOOSA
(Defendant) Respondent
REASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment delivered 3 December 1996
I have read the joint reasons for judgment of Pincus J.A. and Davies J.A. I agree with the orders proposed and for the reasons given.
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