Connolly v Brisbane City Council - [2015] QSC 231

SUPREME COURT OF QUEENSLAND

CITATION:

Connolly v Brisbane City Council & Ors [2015] QSC 231

PARTIES:

TREVOR JOHN CONNOLLY

(applicant)

v
BRISBANE CITY COUNCIL

(first respondent)
KEN DREW TOWN PLANNING PTY LTD
(second respondent)
CHIEF EXECUTIVE ADMINISTERING THE LAND ACT 1994 (QLD)
(third respondent)

FILE NO:

Supreme Court No 6283 of 2015

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

14 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2015

JUDGE:

Flanagan J

ORDER:

1. The originating application filed 25 June 2015 be dismissed.

2. I will hear the parties as to costs.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where Crown land was granted in trust to the Brisbane City Council for Local Government (Swimming Pool) purposes and for no other purposes whatsoever – where the second respondent applied for and was granted preliminary development approval to facilitate the development of a new gymnasium and swimming pools and ancillary structures – where s 35(1)(a) of the Land Act 1994 (Qld) requires that the way land is used must not be inconsistent with a purpose for which it was granted – where the applicant submits the development approval for a gymnasium is inconsistent with the purpose for which the land was granted – where the applicant submits a use will be inconsistent with the land’s purpose if it is not incidental to that purpose – whether the land’s use is required to be inconsistent to its purpose – whether the word inconsistent is to be given its literal and grammatical meaning

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING – PARTICULAR CASES – where Crown land was granted in trust to the Brisbane City Council for Local Government (Swimming Pool) purposes and for no other purposes whatsoever – where the second respondent applied for and was granted preliminary development approval to facilitate the development of a new gymnasium and swimming pools and ancillary structures – where s 35(1)(a) of the Land Act 1994 (Qld) requires that the way land is used must not be inconsistent with a purpose for which it was granted – where the applicant submits the development approval for a gymnasium is inconsistent with the purpose for which the land was granted – where the applicant submits a use will be inconsistent with the land’s purpose if it is not incidental to that purpose – whether the land’s use is required to be incidental to its purpose – whether the word inconsistent is to be given its literal and grammatical meaning

REAL PROPERTY – GENERAL PRINCIPLES – CROWN GRANTS – CONSTRUCTION OF GRANTS – where Crown land was granted in trust to the Brisbane City Council for Local Government (Swimming Pool) purposes and for no other purposes whatsoever – where the second respondent applied for and was granted preliminary development approval to facilitate the development of a new…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QSC 231
Decision Date: 14 August 2015

CaseChat Overview and Summary

The case of Connolly v Brisbane City Council involved the applicant, Trevor John Connolly, seeking a declaration that the Brisbane City Council's decision to approve a development application for the refurbishment and expansion of the Sandgate Aquatic Centre was inconsistent with the purpose for which the land was granted by the Crown. The Council had approved a development application that included plans for a new gymnasium, which the applicant argued was inconsistent with the purpose of the land, which was granted for "Local Government (Swimming Pool) purposes and for no other purposes whatsoever". The applicant sought relief before the appeal of the approval was heard in the Planning and Environment Court.

The court was required to determine whether the proposed use of the land for a gymnasium was inconsistent with the purpose for which the land was granted. This involved interpreting the phrase "inconsistent with a purpose for which it was granted" in section 35(1)(a) of the Land Act 1994 (Qld). The court also had to consider the use of the present tense in the phrase "the way the land is used" and whether this indicated that the inconsistency must be in the present or could be contemplated. Furthermore, the court considered whether the grant of the declaratory relief would have any utility given the pending appeal in the Planning and Environment Court.

The court found that the use of the present tense in section 35(1)(a) of the Land Act 1994 (Qld) did not necessarily mean that the inconsistency must be in the present. The court considered that the use of the present tense may inform discretionary considerations such as utility. The court held that the proposed gymnasium would be subordinate and ancillary to the use of the swimming pools, and its operation would be limited to the operating hours of the swimming pools. The court also found that the grant of the declaratory relief would not necessarily resolve the proceedings in the Planning and Environment Court as the applicant relied on numerous planning grounds for the appeal. The court dismissed the originating application and directed the parties to discuss the costs.

Orders

Orders of the court

1. The originating application filed 25 June 2015 be dismissed.

2. I will hear the parties as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The second aspect is that s 35(1)(a) uses the present tense when it refers to the way in which the land is used. The declaratory relief is sought in the context of an approval which is the subject of a merits appeal in the Land and Environment Court. The use is one that is only contemplated. If the Land and Environment Court was to allow the appeal and remove the proposed gymnasium from the approval, then the alleged inconsistency may never arise.[18] The inconsistency does not presently arise. In the context of the declaratory relief sought in the present case, the use of the present tense in s 35(1)(a) may inform discretionary considerations for example in relation to utility. Whether the Council’s decision made on 30 September 2014 purports to approve a use that is inconsistent with the purpose for which the land was granted[18] University of New South Wales v Moorhouse (1975) 133 CLR 1, 10 (Gibbs J). In Down, the issue was whether the use of the land for horse and pony racing was inconsistent with its use for athletic sports. Griffiths CJ considered that the determination of this issue must depend on circumstances.[19] The circumstances in the present case are that the land is presently developed and used as a public aquatic centre. The centre is known as the Sandgate Aquatic Centre. The existing improvements on the land include:[20](a)a 50 metre Olympic swimming pool;(b)a wading pool;(c)a kiosk;(d)amenities;(e)shade structures;(f)administration and staff facilities; and(g)off street parking. [19] Down v Attorney-General of Queensland (1905) 2 CLR 639, 652 (Griffiths CJ).[20] First respondent’s outline of submissions dated 10 July 2015, [12]; exhibit “JAL-2” to the affidavit of James Alexander Langham affirmed 8 July 2015, 21. The applicant accepts that the present uses including the kiosk and off street parking are not inconsistent with the trust purpose.[21] The proposed refurbishment and expansion project has the following features:[22][21] Applicant’s outline of submissions dated 10 July 2015, [30].[22] First respondent’s outline of submissions dated 10 July 2015, [15]; exhibit “JAL-2” to the affidavit of James Alexander Langham affirmed 8 July 2015, 21.(a)a new shade structure will be provided to the existing 50 metre Olympic pool;(b)a new 25 metre pool with a shade structure, windbreaker and amenities block;(c)a new splash pool playground;(d)a new indoor learn to swim pool and amenities;(e)gymnasium;(f)refurbishments to existing amenities;(g)conversion of an existing plant room to a caretaker’s room;(h)augmentation to the number of off street car parking spaces provided; and(i)a new kiosk. The primary focus of the applicant’s submission as to inconsistency is in relation to the gymnasium. The size of the proposed gymnasium is 331m2. It will comprise slightly more than 1% of the total area of the land. The Council and the second respondent have agreed in the planning appeal that any approval, if granted, should include a further condition:[23]“Use of gymnasiumThe area nominated for the gymnasium use is to be subordinate and ancillary to the use of the swimming pools and is not to be conducted as a separate and independent use.The gymnasium operation is to be limited to the operating hours of the swimming pools.”[23] Exhibit “JAL-4” to the affidavit of James Alexander Langham affirmed 9 July 2015, 12-13.

Ratio Decidendi

Legal Principle Established

For the reasons given above, on the material before the Court it cannot be said that any attempt to use the subject land in accordance with the approval would be in breach of s 35(1)(a) of the Land Act 1994.Discretionary considerations (utility) The applicant submits that it is appropriate for the Court to determine the originating application prior to the hearing of the planning appeal for three reasons:[31](a)the point raised by the applicant is a narrow question of construction, which can be dealt with relatively quickly without the need for a trial;(b)all parties will expend significant trial costs if the applicant is forced to proceed with its planning appeal first, and the proceedings in the Planning and Environment Court may well be a waste of time, money and court resources; and(c)if the applicant is successful in this proceeding, there will be no utility in the planning appeal being heard or the second respondent pursuing the development in the form currently proposed (that is, with the inclusion of a gymnasium). [31] Applicant’s outline of submissions dated 10 July 2015, [15]. The difficulty I have with this submission is that the declaratory relief sought focuses on the Council’s decision made on 30 September 2014 to approve a development application. The notice of appeal to the Planning and Environment Court seeks an order that the development application be refused. The effect of the applicant lodging an appeal to the Planning and Environment Court is that the second respondent cannot commence the redevelopment whilst the appeal is pending. It is an offence to carry out assessable development under the SPA absent an effective development permit.[32] As submitted by the Council where an appeal has been commenced, the SPA specifically provides that a development approval does not take effect until the appeal to the Planning and Environment Court is decided or withdrawn.[33] The Council therefore submits that the relief sought by the applicant lacks utility because the development approval:[34](a)has not taken effect under the SPA;(b)cannot be relied upon to authorise the lawful development of the land;(c)is at risk of being set aside in its entirety at the insistence of the applicant’s appeal to the Planning and Environment Court; and(d)alternatively, the approval will be replaced with an order of the Planning and Environment Court, which may contain the agreed condition referred to above. [35] [32] Sustainable Planning Act 2009 (Qld) s 578; first respondent’s outline of submissions dated 10 July 2015, [19].[33] Sustainable Planning Act 2009 (Qld) s 339; first respondent’s outline of submissions dated 10 July 2015, [20].[34] First respondent’s outline of submissions dated 10 July 2015, [24].[35] This condition is set out in [37] above. It is not clear whether the grant of the declaratory relief would actually resolve the proceedings in the Planning and Environment Court. An examination of the applicant’s notice of appeal reveals that the applicant relies on numerous planning grounds for the purposes of seeking to have the approval refused.[36] The applicant, for example, seeks to have the development application refused because it conflicts with a number of instruments including the Sandgate District Local Plan, the Outdoor Sport and Recreation Code and the Heritage Place Code.[37][36] Exhibit “TJC-3” to the affidavit of Trevor John Connolly sworn 25 June 2015, 28-33.[37] All instruments are of a repealed Planning Scheme of the Brisbane City Council being the “Brisbane City Plan 2000”.

CITATION:	Connolly v Brisbane City Council & Ors [2015] QSC 231
PARTIES:	TREVOR JOHN CONNOLLY (applicant) v BRISBANE CITY COUNCIL (first respondent) KEN DREW TOWN PLANNING PTY LTD (second respondent) CHIEF EXECUTIVE ADMINISTERING THE LAND ACT 1994 (QLD) (third respondent)
FILE NO:	Supreme Court No 6283 of 2015
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	14 August 2015
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2015
JUDGE:	Flanagan J
ORDER:	1. The originating application filed 25 June 2015 be dismissed. 2. I will hear the parties as to costs.
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where Crown land was granted in trust to the Brisbane City Council for Local Government (Swimming Pool) purposes and for no other purposes whatsoever – where the second respondent applied for and was granted preliminary development approval to facilitate the development of a new gymnasium and swimming pools and ancillary structures – where s 35(1)(a) of the Land Act 1994 (Qld) requires that the way land is used must not be inconsistent with a purpose for which it was granted – where the applicant submits the development approval for a gymnasium is inconsistent with the purpose for which the land was granted – where the applicant submits a use will be inconsistent with the land’s purpose if it is not incidental to that purpose – whether the land’s use is required to be inconsistent to its purpose – whether the word inconsistent is to be given its literal and grammatical meaning STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING – PARTICULAR CASES – where Crown land was granted in trust to the Brisbane City Council for Local Government (Swimming Pool) purposes and for no other purposes whatsoever – where the second respondent applied for and was granted preliminary development approval to facilitate the development of a new gymnasium and swimming pools and ancillary structures – where s 35(1)(a) of the Land Act 1994 (Qld) requires that the way land is used must not be inconsistent with a purpose for which it was granted – where the applicant submits the development approval for a gymnasium is inconsistent with the purpose for which the land was granted – where the applicant submits a use will be inconsistent with the land’s purpose if it is not incidental to that purpose – whether the land’s use is required to be incidental to its purpose – whether the word inconsistent is to be given its literal and grammatical meaning REAL PROPERTY – GENERAL PRINCIPLES – CROWN GRANTS – CONSTRUCTION OF GRANTS – where Crown land was granted in trust to the Brisbane City Council for Local Government (Swimming Pool) purposes and for no other purposes whatsoever – where the second respondent applied for and was granted preliminary development approval to facilitate the development of a new…