Dorfler v Pine Rivers Shire Council
[1993] QCA 167
•10/05/1993
| IN THE COURT OF APPEAL | [1993] QCA 167 |
| SUPREME COURT OF QUEENSLAND |
Appeal No. 223 of 1992
Brisbane
[Pine Rivers Shire Council v. Dorfler]
BETWEEN:
PINE RIVERS SHIRE COUNCIL
(Respondent) Appellant
- and -
WALTER DIETER DORFLER
(Appellant) Respondent The President
Mr Justice McPhersonMr Justice Pincus
Judgment delivered 10.05.93
Reasons for judgment by the President separately, Pincus and
McPherson JJA. jointly. All concurring as to the order.
APPEAL ALLOWED. SET ASIDE ORDERS BELOW. MATTER REMITTED TO THE PLANNING AND ENVIRONMENT COURT. DIRECT THAT THE CASE BE RE- HEARD BY A JUDGE OTHER THAN THE ONE FROM WHOM THE APPEAL TO THIS COURT WAS BROUGHT. RESPONDENT TO PAY THE TAXED COSTS OF AND INCIDENTAL TO THIS APPEAL.
CATCHWORDS: | LOCAL GOVERNMENT - Ordinances, regulations and by-laws - subdivision application - condition imposed - whether "prescribed by by-law" - whether sufficient publication - Local Government Act 1936 sub- | ||
| |||
| Government (Planning and Environment) Act 1990 subs.7.1A(3)(a). WORDS AND PHRASES - "condition prescribed by by-laws". | |||
| Counsel: | Mr C.L. Hughes for the Appellant Mr T.N. Trotter the Respondent | ||
| Solicitors: | Mr. R.D. Forbes, Shire Solicitor for the Appellant Messrs. Deacon and Milani for the Respondent | ||
| Hearing Date(s): | 26.03.93 |
THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 223 of 1992
Brisbane
| Before | The President Mr Justice McPherson Mr Justice Pincus |
[Pine Rivers Shire Council v. Dorfler]
BETWEEN:
PINE RIVERS SHIRE COUNCIL
Appellant
- and -
WALTER DIETER DORFLER
Respondent
REASONS FOR JUDGMENT - THE PRESIDENT
Judgment delivered 10.05.93
This is an appeal from the Planning and Environment Court which, on 11 September 1992, allowed an appeal against certain conditions imposed by the appellant in a Land Subdivision Permit issued to the respondent dated 30 July, 1991. The matter was approached on the basis that, because of the date on which the application was lodged, it fell to be decided by reference to the Local Government Act 1936 as amended, which has been repealed by the Local Government (Planning and Environment) Act 1990 as amended.
Under subsection 34(10) of the Local Government Act, a local authority could approve an application to subdivide land subject to conditions but, by subsection 33(16C)(a), conditions were unlawful unless "prescribed ... by by-law or reasonably required by ... the subdivision of the land ...". Under subsection 34(15), there was a right of appeal to the Planning and Environment Court against such a decision of a local authority. The further right of appeal to this Court is relevantly limited to error or mistake in law.
So far as presently material, the Land Subdivision Permit
provided:
"The Council of the Shire of Pine Rivers hereby permits the subdivision of the land described below subject to conditions contained in this permit, subject to Bylaw 22, subject to all relevant Council bylaws, and subject to the provisions of the Local Government Act (1936 as amended).
...
This Permit authorises the subdivision of the land only in accordance with the foregoing and in compliance with the undermentioned conditions.
...
APPLICABLE STANDARD CONDITIONS:The Standard Conditions of Subdivision Part A and Part B are set out in Part 3 of Council's Subdivision Control By-Law No.22.
SPECIAL CONDITIONS:
1. The Council's classifications of the existing and proposed roads are shown in the table herein. The table also shows the road standard to be used for design and construction purposes. By-law No.22, Council's Standard Street Classifications and Standard Drawings and Council's Design Manual shall be used for these purposes.
ROAD NAME CLASSIFICA- STANDARD CONSTRUCT- OR TION ION DESCRIPTION
WHITESIDE RESIDENTIAL RURAL AADT IN ROAD 1-50 ACCORDANCE
WITH
STANDARD
DRAWING NO.
80088
By clause 1 of Division 1 of Part 3 of the appellant's By- law 22, the subject land was not permitted to be subdivided unless the subdivision satisfied specified "Standard Conditions" in Division 3 of Part B, including Standard Condition 16 which provided:
"(16) Roadworks shall be constructed in accordance with
the following:
New Road Standard ... ... Existing Road For the full frontage In accordance with of the land subject of Council's Design the application
Manual including sealing with a hot sprayed bitumen seal consisting of a prime and two seal coats
... ."
It was agreed before this Court that the appellant's Design Manual provided it with a wide discretion concerning road construction apart from the sealing required by Standard Condition 16, and that that discretion has been exercised by Special Conditions attached to the Land Subdivision Permit of which only Special Condition 1 is now material.
The form of order made by the Planning and Environment Court presents problems, its reasoning is unclear, and it is difficult to identify the real issue in contest between the parties. In essence, the dispute seems to turn upon the Planning and Environment Court's determinations that:
(i) Standard Condition 16 was not "... a condition ...
prescribed ... by .." the appellant's By-law 22 within the
meaning of subsection 33(16C)(a) of the Local Government Act;
and (ii) Special Condition 1 was not "... a condition ...
reasonably required by the ... subdivision of the land ..."
and was therefore unlawful by virtue of that subsection.
| The appellant accepted that it could not directly challenge (ii) in this Court, but appeared to seek to avoid the consequences of this by having the Court hold that the Planning and Environment Court erred or was mistaken in law in respect of (i), with the assumed result apparently being a conclusion that the respondent is bound to accept discretionary decisions of the appellant with respect to road construction which are in accordance with its Design Manual (including Special Condition 1). The contention for the appellant seemed to be that a requirement with respect to road construction which is in accordance with the Design Manual need not be "... reasonably required by the subdivision of the land" because such a requirement is "... a condition ... prescribed ... by by-law". | This app |
| with respect to road construction must be in accordance with the Design Manual but that requirements specified by such decisions are themselves conditions "prescribed ... by" Standard Condition 16 and therefore by By-law 22. | |
| Whether or not this argument is correct in its assumption that Standard Condition 16 is a "condition" within the meaning of subsection 33(16C)(a) of the Local Government Act, it pays insufficient regard to the means by which a by-law is made under that Act. Subsection 31(27)(ix) provides: |
"(ix) ...
...
Where the Governor in Council approves of a by-law, it shall be published in the Gazette and thereupon such by- law shall have the same force and effect as if it were enacted in this Act. ..."
Publication in the Gazette is an integral step in making a valid by-law. What is prescribed by by-law is neither more nor less than what was published in the Gazette. Arguably, this might be done indirectly by the incorporation by reference of other material: see Pearce Delegated Legislation (1977) paras. 266ff, 526; Dainford Ltd. v. Smith (1985) 155 CLR 342. However, special conditions, such as Special Condition 1, are not contained in either By-law 22 or any material to which it makes reference. No more is prescribed by Standard Condition 16 than that:
(a) the road must be sealed in the manner stated by Standard Condition 16; and
(b) the road must otherwise be constructed in accordance with the Design Manual.
The latter requirement is silent as to the detail of the construction required, insisting only that whatever decisions are made must be in accordance with the Design Manual. The matters thus left to further decision are not "prescribed ... by by-law."
There is no objection to such a decision being imposed as a condition of a Land Subdivision Permit. However, in such a case, since not "prescribed by the scheme or by-law", the condition must be "reasonably required by ... the subdivision of the land": subsection 33(16C)(a).
The proceedings below miscarried because the effect of the order made was to delete all requirements under or associated with Standard Condition 16 from the Land Subdivision Permit. Sealing in accordance with Standard Condition 16 should be a condition of the Permit. Further, there should be special conditions attached to the Permit to require the construction of the road in a manner which is:
(a) in accordance with the Design Manual; and
(b) reasonably required by the subdivision of the land.
These are matters for decision for the Planning and
Environment Court.
Accordingly, the appeal should be allowed and the matter remitted to the Planning and Environment Court to be dealt with in accordance with the judgment of this Court. The respondent must pay the taxed costs of and incidental to this appeal.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 223 of 1992
Brisbane
Before The President
Mr Justice McPherson
Mr Justice Pincus
[Pine Rivers Shire Council v. Dorfler]
BETWEEN:
PINE RIVERS SHIRE COUNCIL
(Respondent)
Appellant
- and -
WALTER DIETER DORFLER
(Appellant)
Respondent
JOINT REASONS FOR JUDGMENT - PINCUS J.A. & McPHERSON J.A.
Judgment delivered 10/5/93.
We have read the reasons of the President in which there is to be found such an explanation of the nature of the case as to enable our own reasons to omit some of the detail.
It appears to us, however, desirable to summarise the reasons
given by the learned judge of the Planning and Environment
Court insofar as they touch on the matters debated before us.
His Honour pointed out that the Council's by-law 22 prohibits
subdivision in the relevant zone unless certain Standard
Conditions are satisfied. The relevant condition, no. 16,
requires that roadworks be constructed in accordance with the
Council's Design Manual "including sealing with a hot sprayed
bitumen seal consisting of a prime and two sealed coats".
The judge held that because of the date on which the application was lodged, the matter had to be determined on the basis of the provisions of the Local Government Act 1936. Under s. 33(16C) of that Act a local authority may not lawfully subject an approval to subdivide land to a condition that is not prescribed by the planning scheme or by by-law or reasonably required by the subdivision of the land.
His Honour held, in effect, that condition 16 was not prescribed by the by-law, because it relied on the Design Manual which was not part of the by-law or of the Council's Planning Scheme, and because the application of the Manual involved the exercise of a certain discretion. Having so decided, his Honour went on to determine the other question posed by s. 33(16C), namely whether the proposed conditions were reasonably required; he held that condition 16 was not so required.
In this Court it was argued for the appellant that condition
16 was prescribed by the by-law within the meaning of
s. 33(16C) and therefore must stand. A difficulty arose in
considering the question raised because, although the reasons
dealt with condition 16 as we have mentioned, the form of
order made did not mention it. If, as the appellant
contended, condition 16 attached as a matter of law, being a
condition "prescribed by by-law", then the absence of any
reference to it in the judge's order could not have affected
its application. To overcome this difficulty, at the Court's
suggestion the parties agreed that this Court could declare
whether condition 16 is or is not prescribed by by-law within
the meaning of the relevant statutory provision. In the
result, we think no declaration is needed.
It should be added that counsel for the respondent contended, without citing any authority, that the Court below was not bound by the terms of the Council's application of condition 16 but could depart from them.
"Prescribed by by-law"
The first question is whether condition 16 is "prescribed by
by-law"; as we have pointed out, the learned judge below held
it is not. The point is connected with another, viz. whether
the by-law in question has been published in the Gazette under
s. 31(27)(ix) of the Local Government Act 1936, which requires
such publication; it also says that "thereupon such by-law
shall have the same force and effect as if it were enacted in
this Act and shall not be questioned in any proceedings
whatsoever". Authorities for the appellant are to be found in
New South Wales: Wright v. T.I.L. Services Pty Ltd (1956)
S.R.(N.S.W.) 413 and Ex parte Ryan; re Bowry (1957)
S.R.(N.S.W.) 438. The former case concerned the validity of a
regulation which was subject to a statutory requirement that
it be published in the Gazette. The regulation was said to be
invalid because it required, inter alia, that certain
equipment comply with rules of the Standards Association of
Australia. Walsh J. held that the fact that the regulation
incorporated a document by reference did not necessarily make
it invalid, and his Honour's view on the point was agreed in
by Herron J.: p. 421, 422. In Ex parte Ryan; re Bowry, the
question was whether a standard for food was prescribed by a
regulation. A set of tables issued in London was required by
the regulation to be used in determining compliance with the
standard; that was held not to be a vitiating factor.
Authorities which might be thought to tend in the other direction include McDevitt v. Macarthur (1919) 15 Tas.L.R. 6, Arnold v. Hunt (1943) 67 C.L.R. 429 and O'Keefe v. City of Caulfield (1945) V.L.R. 227. The High Court case raised the question whether a regulation could be said to fix and declare the maximum prices of a kind of goods if it merely identified a list of prices issued by a certain association; the Court held the regulation to be ineffective, but that is not very close to the present problem. The same may be said of McDevitt v. Macarthur, where a power to make by-laws required to be published in the Gazette was purportedly exercised by referring to certain United Kingdom regulations, and that was held invalid. In O'Keefe v. City of Caulfield the subordinate legislative power was not exercised in such an extreme way, but the by-law contained certain references to regulations, not set out at length in it, and that was held invalid.
The decision in O'Keefe's case is not easy to reconcile with that in Wright v. T.I.L. Services Pty Ltd. If a published by-law purporting to deal with a subject said no more than that certain rules, identified but not set out, applied, then it might readily enough be accepted that the requirement of publication had not truly been complied with. In a literal sense such a by-law has been published, but its publication only directs the reader to another document to ascertain the law: McDevitt v. Macarthur is such a case.
Here, the subdivision by-law sets out, in part, the law relating to applications, but for full knowledge one must have reference, so far as is relevant here, to the Council's Design Manual.
Consistently with Wright v. T.I.L. Services Pty Ltd, we express the opinion that a by-law may be properly published in the Gazette although it incorporates other unpublished documents, at least where the identity of the incorporated documents is clear and, perhaps, so long as the incorporated material is subsidiary rather than essential. In one sense this is a convenient result because there has, we think, been a practice of referring to material in by-laws without setting it out at length, no doubt to reduce the volume of published matter. The view we have expressed is in accord with the opinion of the majority of the Court in Dainford Ltd v. Smith (1985) 155 C.L.R. 342; see especially at p. 348.
It should be added that the primary judge was, it appears, influenced in his opinion that condition 16 was not prescribed by by-law by the fact that it purports to confer certain discretions; but that does not constitute a good ground for holding that the condition is not prescribed by the by-law, nor for holding that it was not one published in the Gazette; Dainford Ltd v. Smith (above) at 349, 358.
We have thus come to the conclusion that condition 16 was both prescribed by by-law within the meaning of s. 33(16C) of the Local Government Act and published in the Gazette as required by s. 33(27)(ix) of that Act.
Function of Court
Having determined that condition 16 is prescribed by by-law,
it remains to be considered whether the respondent may still
avoid the sealing requirement incorporated in that condition,
by the court exercising its own discretion in the matter.
It has been mentioned that there was a contention, neither
developed nor supported by authority, that the Planning and
Environment Court had power to vary the Council's application
of condition 16. The Local Government (Planning and
Environment) Act 1990 ("the P & E Act") came into force on
15 April 1991, after the date of the application for
subdivision, but before the Council's decision, made on
17 July 1991, against which the appeal in question was
brought. Section 8.10(9) of the P & E Act, inserted by Act
No. 8 of 1991, has the effect that in these circumstances the
application for subdivision "is to be dealt with as if this
Act had not commenced". There may be room for argument as to
whether that provision has the effect that, the application
having been approved by the Council, the subsequent appeal is
also to be dealt with as if the P & E Act had not commenced.
In the present case it is not necessary to reach a conclusion
on that point. If the P & E Act governed the appeal as well
as the application, then the Court below had its powers
defined by
s.7.1A(3) of the P & E Act:
"(a) The Court may allow an appeal whether against a
refusal or a condition of approval, absolutely
or subject to any conditions the Courtconsiders appropriate.
...
(c) In any appeal the Court may vary a condition imposed by the Local Authority in respect of the approval."
It appears that the Court below decided the case on the assumption that, if condition 16 was prescribed by by-law, it was not unlawful under s. 33(16C)(a) of the Local Government Act and could not be varied by the Court. But that provision does not say so and s. 7.1A(3)(a), insofar as it gives jurisdiction to change conditions, is not expressly confined to conditions imposed by local authorities.
Under the former legislation it appears that the Local Government Court regarded itself as bound by conditions in by-laws to the same extent as the Council and entitled to interfere with their operation, with respect to a subdivision application, only insofar as the Council could have done; see, for example, Emmanuel v. Pine Rivers Shire Council (1989) Q.P.L.R. 242 and Prettejohn v. Mulgrave Shire Council (1991) Q.P.L.R. 84. It seems to us unlikely that s.7.1A(3)(a) was intended to give the Planning and Environment Court wider powers in this respect than the Local Government Court had formerly exercised. The provision of the Local Government Act corresponding to s. 7.1A(3)(a) of the P & E Act is s. 33(16B).
It is more explicit on the point being discussed:
"The Court may allow any appeal under section 34(15)
of this Act unconditionally or subject to such
conditions as the Court deems fit, being conditions
to which the Local Authority or any officer of the
Local Authority could lawfully subject the approval
..."
It is our opinion that whether the appeal is to be regarded as governed by the provision just quoted, or by s.7.1A(3)(a) of the P & E Act, the same position applies, namely that on appeal the standard conditions may be varied by the Court only to the extent that the Council or an officer of the Council could have varied or otherwise exercised a discretion with relation to them.
Conclusion
Condition 16 was, we think, prescribed by by-law and the Court
below was, in our view, wrong in treating it as not meriting
that description. Further, we think the condition not to be
invalidated for non-publication. As to the latter point, it
should be added that the "as if enacted" clause does not
prevent attack on by-laws on any ground whatever: Institute of
Patent Agents v. Lockwood (1894) A.C. 347; Foster v. Aloni
(1951) V.L.R. 481; A-G v. City of Geelong (1989) V.R. 641 at
658-659. It does, however, make such an attack more difficult
and in particular makes it impossible, in our respectful
opinion, to say that a by-law is invalid simply because it
does not comprehensively and finally prescribe rights and
obligations, but rather confers some discretions.
We would allow the appeal on the ground that the Court below was wrong in holding Standard Condition 16 not to be prescribed by the by-law and not to be applicable to the subdivision in question. We would set aside the order made below and remit the matter to the Planning and Environment Court, with a direction that the case be re-heard by a judge other than the one from whom the appeal to this Court was brought. In our opinion, the latter direction is justified, not because of any apprehension that the judge below would not justly deal with the matter, but by the necessity, in the particular circumstances, to ensure that the appearance of impartiality is maintained. The respondent should pay the costs of the appeal.
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