Cavcorp Qld Pty Ltd v Brisbane City Council

[2008] QPEC 88

[2008] QPEC 88

PLANNING AND ENVIRONMENT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2089 of 2006

CAVCORP QLD PTY LTD

(ACN 105 868 068)

Appellant

and

BRISBANE CITY COUNCIL

Respondent

BRISBANE

..DATE 26/09/2008

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 4.1.5A, s 4.1.33B - Transport Infrastructure Act 1994 s 43 - Uniform Civil Procedure Rules r 69 - successful application by Chief Executive of the Department of Main Roads to be added as a respondent in an appeal against council's refusal of an
application for advertising signage on land adjacent to Freeway - whether Council's inquiry of the Department was an application for approval based on Council's intending to approve, with the consequence that the Chief Executive, by failing to respond within 21 days was "taken to have given approval" - whether Chief Executive's role had come to an end.

HIS HONOUR: This is an application by the Chief Executive of the Department of Main Roads wishing to be joined as a party in an appeal brought under section 4.1.33B of the Integrated Planning Act 1997 (IPA).

The local law in question deals with advertising signage, one of the exceptional contexts in which applications may be made by processes outside the IPA. Cf Makucha v Albert Shire Council [1996] 1 QdR 53. The application was made in May 2006 for the erection of a sign in Lavarack Avenue, Eagle Farm. The site is adjacent to a freeway on-ramp which made relevant to the application the Chief Executive's views having regard to section 43 of the Transport Infrastructure Act 1994 which provides:

"43  Distraction of traffic on motorways:

(1)A local government must obtain the Chief Executive's written approval if it intends to approve the erection, alteration or operation of an advertising sign or other advertising device that would be:

(a)visible from a motorway; and

(b)beyond the boundaries of the motorway; and

(c)reasonably likely to create a traffic hazard for the

motorway.

(2)The Chief Executive may make guidelines to which local governments must have regard in deciding whether an approval of the Chief Executive under subsection (1) is required for particular motorways.

(3)An approval by the Chief Executive under subsection (1) may be subject to conditions.

(4)Subsection (1) does not apply if the conditions applied by the local government to the erection, alteration or operation of the sign or device comply with permission criteria fixed by the Chief Executive.

(5)The permission criteria may include conditions.

(6)A local government must comply with conditions that apply to it under this section.

(7)An approval by the Chief Executive under subsection (1) must be given:

(a)within 21 days after receiving the application

for approval; or

(b)within a longer period notified to the local

government by the Chief Executive within the

21 day period.

(8)If:

(a)a local government applies for an approval under

subsection (1); and

(b)the Chief Executive does not respond to the

application within 21 days after receiving the

application;

the Chief Executive is taken to have given approval at the end of the 21 days.

(9)In this section -

Motorway includes a road or land that the Chief Executive has notified the local government in writing is intended to become a motorway.

(10)The Chief Executive must cause a copy of each notice under subsection (9) to be published in the gazette."

The Council wrote to the Department on the 29th of May 2006 as follows:

"Re: Proposed Advertising Sign Permit Application at Location 56 Lavarack Avenue, Eagle Farm, Qld. 4009.

This proposed permit application has been lodged with Brisbane City Council for the above location.

This application has been forwarded to your office for consideration and comment, relating to your policy criteria with such matters.  I would appreciate it if you could confirm your decision in writing within fourteen days (14) from the date of this letter.

If you require further information regarding this permit application, please contact me on telephone [phone] during normal business hours.

Yours faithfully
John Donaghy
Licensing Compliance Officer
Regulatory Services"

The Department's response was a letter of the 26th of June 2006 in the following terms:

"Dear Mr Donaghy

I refer to your letter 29 May 2006, reference 0085358, concerning the above advertising application.

Officers of the Department of Main Roads have accessed (sic) the above application in accordance with the Guide to the Management of Roadside Advertising and the location of the proposed Gateway Motorway deviation.

The location proposed for the above advertising device will fall within the advertising restriction distances, as per figure C6, Appendix C of the guide, for the on ramp currently planned for the Gateway Motorway deviation.

Given the above advice, Main Roads does not support this application.

Should you have any questions regarding this advice, please contact Mr Stephen Weldon, Senior Traffic Investigations Officer, ph 3834 8454.

Yours sincerely
Mr Eddie Peters
District Director (Metropolitan)"

The reference to the two dates makes it plain that the 21 day time limit imposed in section 43(7) of the TIA, as I shall call it, was not complied with so that, if the section applied, as subsection (8) says:

"The Chief Executive is taken to have given approval" -

contrary to the approach clearly expressed in the letter of 26th of June 2006.
The Council is either neutral towards or supportive of the Chief Executive's application.  It is opposed by the appellant which complains of the Council's refusal of its application and is represented by Mr Lyons QC and Mr Paul Marshall.

Their contention is that the Chief Executive has no further role to play. Their approach has the support of a couple of decisions in the Court, Listville Pty Ltd v.Laidley Shire Council [1996] QPELR 378, see particularly at 379H and Pacific Exchange Corporation Pty Ltd v. Gold Coast City Council and the State of Queensland [1997] QPELR 129, in particular at page 134. The rigour of the Judges' conclusions was moderated to an extent because in Listville the Council had adequate powers (and the determination to exercise them) to insist on development conditions which the Chief Executive wanted and in Pacific Exchange Corporation the appellant had reserved until the hearing of the subsequent appeal making its objections to the Chief Executives participating. By the time Senior Judge Skoien made his ruling about section 40(10) of the TIA, the Department had presented its case with the Council sitting back, so to speak, and it was plainly considered by his Honour - although not found sufficiently convincing to preclude the appellant's succeeding.

The Council responded to the appellant's application by letter of the 3rd of July 2006, in the following terms:

"Cavcorp Qld Pty Ltd
Attn: Mr Damien Cavallucci
P.O. Box 1354
Fortitude Valley   Qld.  4006

Re: Application for Advertising Sign
Location: 56 Lavarack Avenue, Eagle Farm  4009
Project Reference:  0085358

Council has assessed your application received on 25 May 2006 and wishes to advise you of the following decision:

Permit Applied For	Permit No	Type	Exact Location	Decision
Advertising Sign	AS01080479406	Billboard	56 Lavarack Av Eagle Farm	Refused

Unfortunately, your application does not comply with Council's Local Law for Control of Advertisements and as a result has been refused.  The reasons for the refusal are:

Advertising Sign - Sign refused by Department of Main Roads

'You may wish to modify the application taking into consideration the above reasons for refusal and re-submit it.  No additional application fee will apply if you lodge the amended application within six (6) months of the original application date.

If you consider the reasons for the refusal to be unreasonable you may appeal by outlining in writing why you believe the reasons for refusal are unreasonable.'
Please take notice that under Local Law No 1 'Control of Advertisements', a Prescribed Infringement Notice may be issued daily to each sign on the property that is not in accordance with this Local Law.

Please phone Council on 34038888 during normal business hours if you have any queries regarding this matter."

The correspondence set out gives every appearance of the procedures contemplated by section 43 being pursued, namely the Council having developed an intention to approve the proposal presented to it, and made application to the Chief Executive, upon which, presumably through some inadvertence, the Chief Executive omitted to respond to within the time available. Perhaps, if any lesson was learned from the two 1996 cases, it had been forgotten.

It is clear from Mr Smith's affidavit, in Mr Lyons submission, that within the Department it was taken that section 43 procedures were being pursued. I take it that Mr Smith's statement, "Main Roads did not correspond in 21 days" is not intended to describe some deliberate, informed decision. By way of indicating the "clout" which the Department may have retained in this matter, Mr Smith refers to section 11 of the Transport Operations (Road Use Management - Accreditation and Other Provisions) Regulation 2005 which provides:

"111 Light or sign creating danger to traffic

(1)This section applies if the Chief Executive or commissioner considers a light or sign in, on, or near a road, or attached to a building or other structure in the vicinity of a road, may create a danger to traffic.

(2)The Chief Executive or commissioner may give the owner of the light or sign a written notice requiring the owner, within the time stated in the notice, to:

(a)remove the light or sign; or

(b)modify the light or sign, in the way stated

in the notice, so it does not create a danger

to traffic.

(3)The owner must comply with the notice unless the owner has a reasonable excuse.

Maximum penalty - 40 penalty units.

(4)If the owner does not comply with the notice, the Chief Executive or commissioner may:

(a)remove the light or sign; and

(b)recover the removal costs from the owner as

a debt."

There is an argument alluded to by Mr Lyons that section 111 is beyond power.  To this point, the only regulation making power relied on is one in respect of regulations about "Misuse of roads."  It may be drawing a long bow to suggest that placing a potentially distracting advertising sign alongside a road involves misuse.  It's going further than the regulation Mr Morzone for today's applicant instanced of a provision dealing with the throwing of stones onto a road.

The Court can hardly be expected today to resolve that issue regarding section 111 as Mr Lyons says.  In the circumstances there may be some doubt about the Chief Executive's ability to rely on that provision. 

Mr Smith rather suggests that if the Chief Executive gets into the appeal that might result in "finalising issues" in a way which would protect the appellant against possible action under section 111 undercutting its enjoyment of the fruits of a successful appeal.

Mr Williamson for the Council in careful language informed the Court that the Council does not concede that it either did or did not form an intention to approve the application for the sign. Mr Morzone's approach to section 43 is that it does not apply with the effect of denying his client any further say because the factual basis for its application is not established. He is suggesting that the Council's letter responded to on the 26th of June 2006 was no more than an inquiry about the Department's attitude, rather than an application under section 43 based on some positive intent to approve the sign.

There is room for argument about the meaning of "intends" in the section.  One may in common parlance assert that one intends to attend some event or do some particular thing in the future in circumstances where it is clear that many things might occur in the interim which prevent that intention from coming into effect.  "Intends" may in some uses have a meaning approaching "contemplates" as opposed, in a context such as the present, to the Council having formed a positive intention to accede to the application if the Chief Executive was co-operative.

I don't accede to Mr Lyons' argument that the Court ought to resolve this issue of "intends" today. In the circumstances I think the better view is that section 43 would only apply if the Council, meaning the appropriate delegate within the Council, had formed a positive intention in favour of the granting application being considered. In the circumstances I don't think the Court ought to take from the Council's inquiry of the Department that that was the situation. It's not known whether the inquirer had the authority to or whether he or anyone else in the Council did develop the requisite intention.

The strongest indication that that had happened is the request for a "decision" from the Department.  To similar effect one might say is the advice ultimately given refusing the application of the appellant which explains that outcome in terms of the Department's refusal which might, by resort to a negative pregnant, indicate that the Council's decision would have been different.

I think it's a strong thing where (as here) issues of public safety are involved to shut out the public authority principally charged with looking out for that public interest.  I think it's preferable to have that authority directly heard rather than forced to rely on the Council to mount a case for it.

The TIA in section 44 contemplates the Chief Executive being given "a chance to be heard" in various of its subsections.  The section is:

"44  Effect of decisions of Planning and Environment Court

(1)  If -

(a)an approval under section 42(1) (Impact of certain local government decisions on State-

Controlled roads) is subject to conditions; and

(b)a local government imposes conditions on the road works or changes to which the approval relates; and

(c)the Planning and Environment Court amends the

Conditions mentioned in paragraph (b);

Then, to the extent to which the amendment relates

to the conditions of the approval under section

42(1), the conditions of the approval are taken to

be amended accordingly.

(2)  If-

(a)  there are permission criteria relevant to
             road works or changes mentioned in section
             42; and
         (b)  a local government imposes conditions on the
             road works or changes; and

(c)  the Planning and Environment Court amends the

Conditions mentioned in paragraph (b);

then, to the extent to which the amendment relates to the
permission criteria, the permission criteria are taken to be amended accordingly in their application to the road works or changes.

(3)  If -

(a)an approval under section 43(1)(Distraction of traffic on motorways) is subject to conditions; and

(b)a local government imposes conditions on the

relevant erection, alteration or operation of

the sign or other device; and

(c)the Planning and Environment Court amends the conditions mentioned in paragraph (b);

then, to the extent to which the amendment relates to the conditions of the approval under section 43(1), the conditions of the approval are taken to be amended accordingly.

(4)  If -

(a)there are permission criteria relevant to the erection, alteration or operation of a sign or other device mentioned in section 43; and

(b)a local government imposes conditions on the erection, alteration or operation; and

(c)the Planning and Environment Court amends the conditions mentioned in paragraph (b);

then, to the extent to which the amendment relates to the permission criteria, the permission criteria are taken to be amended accordingly in their application to the erection, alteration or operation.

(5)The Planning and Environment Court is not to amend conditions as mentioned in this section without giving the Chief Executive a chance to be heard."

The idea of the two sections that the TIA quoted would appear to be that there not be two sets of conditions, one the Chief Executive's, the other the local government's, but rather a single one - the local government's obligation being to incorporate in its conditions the ones required by the Chief Executive.

The recognition of the importance of the Chief Executive's being heard in the court in circumstances covered by section 44 is pertinent to the approach that ought to be taken to rule 69 of the UCPR which has been applied by the Court of Appeal in relation to proceedings in this Court in Leda Holdings Pty Ltd v. Caboolture Shire Council [2006] QCA 041.

The factual context there (as in a number of similar cases) is that an intervening purchaser of property to which development rights, or potential development rights depending on future events, attached, ought to be heard.

Keane JA, with the concurrence of Williams JA and McMurdo J, said at page 6, and I quote:  "The discretion conferred by Rule 69 should be approached as intended to facilitate the determination of proceedings in accordance with the rules of natural justice.  It should not be approached as if it were intended to restrict the availability of the common law right of a person likely to be affected by a decision to be heard in relation to that decision."

This followed reference to and quotation from Kioa v. West (1985) 159 CLR 551 at 582 and Annetts v. McCann (1990) 170 CLR 595 at 598, following which his Honour said: "Considerations of natural justice, and the benefit to this Court of hearing argument from the party interested in maintaining the decision under attack, support that conclusion (namely that there should be joinder)".

If Mr Lyons intended to suggest that "interested" denotes some pecuniary or economic interest, I would not be inclined to agree. The considerations canvassed to this point, in my view, lead to the conclusion that the application should succeed. It seems unnecessary to embark on consideration of the alternative way of getting to a similar outcome by use of Section 4.1.5A of the IPA.

The argument is that the Chief Executive failed to comply with a requirement of "another Act in its application to" IPA, namely the TIA.  There is some force in Mr Lyons' argument that this is not truly a case of the TIA having application to the IPA, when there's nothing more than the IPA providing an appeal right.

As noted above, the appellant's application for a sign had nothing to do with the IPA.  It was a species of application not dealt with in the IPA, in particular not dealt with in any of its schedules, so that the Chief Executive, or the Department, never became a referral agency as a concurrence agency or an advice agency.

It's well known that since Lamb v Brisbane City Council [2007] QCA 149, there can be difficulty in identifying a "requirement" in a context where there's no compulsion on a person to take a particular course.

That's been overtaken by observations of the Chief Justice, with Holmes JA agreeing, in Gold Coast City Council v Fawkes [2007] QCA 444 which suggest that if a person is minded to take up some right or opportunity, pursuant to IPA (at least), stipulations as to how that ought to be done do constitute requirements which in principle may lead to the granting of indulgence under Section 4.1.5A.

Other things being equal, the Chief Executive would have a promising case in my opinion.  Given the Council's decision, under appeal, it can't be said that the appellant or anyone else has lost anything by the Chief Executive's overlooking the relevant time limit, or now being permitted to participate in the appeal. 

The practical consequence, of the appeal's becoming more complex and costly, I acknowledge, but in my opinion it wouldn't play a role here.  Have you got a draft order, or what's the order you want, Mr Morzone?

MR MORZONE:  I'll just check the application.  It might be just as easy to - I have got a draft order, your Honour.

...

HIS HONOUR:  All right.  I'll add the Chief Executive as second respondent.  All right.  Order as per initialled draft.

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