Douglas v Brisbane City Council

[1992] QCA 410

IN THE COURT OF APPEAL

[1992] QCA 410

QUEENSLAND

C.A. No.174 of 1992

CARMEL MICHELE DOUGLAS and WILLIAM LEONARD DOUGLAS as trustees for the W.L. & C.M. DOUGLAS FAMILY

TRUST

and WILLIAM LEONARD DOUGLAS

(Appellants) Respondents

- and -

BRISBANE CITY COUNCIL

(Respondent) Appellant

JUDGMENT OF THE COURT

Delivered the twenty-sixth day of November, 1992

This is an appeal from a decision of the Planning and Environment Court which, on 17 July 1992, ordered the appellant, Brisbane City Council, to pay the respondents $167,000.00 for injurious affection relating to the respondents' land at 26 and 30 Ellis Street, Kangaroo Point. The respondents' claim to compensation was based on sub-s.13(1)(a)(ii) of the City of Brisbane Town Planning Act of 1964. The appellant accepts the respondents' entitlement to compensation unless it is excluded by sub-s.14(1)(c) of that Act. The question of law raised by this appeal is whether the respondents were denied a right to compensation by that subsection.

At all material times, the land was in a Residential B zone under the Town Plan for the City of Brisbane.

Under the 1978 Town Plan, the land was in a Residential Development Area which was "undeclared" or "undesignated". An apartment building was a development which might be carried out with the consent of the appellant. By definition, "development" meant the use of any land or

erection or use of any building or other structure and was related to the purpose for which the land or building was used. Thus, under the 1978 Town Plan, a building might have been erected and used for the purpose of an apartment house with the consent of the appellant.

Under the 1987 Town Plan, the land was subject to a Residential Development Area designation of R3. The development of an apartment building on land in the Residential B zone with a Residential Development Area designation of R.3 was prohibited by the Town Plan.

Although differently expressed, "development" was defined to substantially the same effect as in the 1978 Town Plan. A building may no longer be erected or used for the purpose of an apartment house on the respondents' Ellis Street land.

The 1987 Town Plan was gazetted on 13 June, 1987, at which time the City of Brisbane Town Planning Act was in force. By sub-s.15(3) of that Act, a claim to compensation for injurious affection under section 13 of the Act had to be made within 3 years of (the 1987 Town Plan coming into force).

A duly completed claim for compensation was made by the respondents on 12 June 1990. That claim was (barely) in time.

Under sub-s.15(4) of the Act, the respondents were entitled to appeal to the then Local Government Court if the appellant had not made and communicated a decision on the claim within 40 days, ie. by 22 July, 1990. No time limit was imposed for the appeal.

The respondents had not appealed when, on 15 April, 1991, the Local Government (Planning and Environment) Act 1991 came into force and the City of Brisbane Town Planning Act was repealed.

A Notice of Appeal based on the appellant's failure to make and communicate a decision within the time prescribed by the sub-s.15(4) City of Brisbane Town Planning Act was lodged on 3 October 1991.

On 24 March, 1992, a Judge of the Planning and Environment Court held that the respondent's right of appeal had survived the repeal of the City of Brisbane Town Planning Act, that the appeal to the Planning and Environment Court had been duly instituted and that that Court had jurisdiction to hear and determine the respondents' claim for compensation for injurious affection.

No appeal was brought from that decision of the Planning and Environment Court, which proceeded to hear the respondents' appeal to that Court and in due course made the order which is the subject of the present appeal. Both parties tacitly accepted that the respondents' entitlement is to be determined by reference to the law in force when the claim for compensation was made.

Sub-s.13(1)(a)(ii) of the City of Brisbane Town Planning Act, upon which the respondents' claim to compensation was based, provided:

"13. Claims for compensation (1) Subject to this Act
any person -

a)    who has an estate or interest in land in the City of Brisbane and such estate or interest is injuriously affected -

...

(ii) by any prohibition or restriction imposed by or under the Plan;

...

shall, if he makes a claim therefore within the time prescribed, be entitled to obtain from the Council compensation in respect of such injurious affection ... ."

Sub-s.14(1)(c) of the City of Brisbane Town Planning Act 1964, upon which the appellant relies, and the following sub-section (d) which is also material, provided:

"14. Compensation not payable in certain cases.
(1) Compensation shall not be payable in the following

cases:-

...

(c)  Where an estate or interest in land is affected by any provision of the Plan ... which prescribes the space about buildings or other structures or limits the size of allotments or the number of buildings or other structures to be erected or prescribes the height, floor space, design, external appearance or character of buildings or other structures, ... ;

(d)  where an estate or interest in land is affected by any provision of the Plan which prohibits or restricts the use of land or the erection or use of a building or other structure thereon for a particular purpose, unless the applicant establishes that he had a legal right immediately before the provision in question of the Plan came into force to use the land or erect or use a building or other structure thereon for the particular purpose which is prohibited or restricted as aforesaid.

... ."

The appellant's submission is that the prohibition upon the development of an apartment building is a "provision of the Plan ... which prescribes the ... character of buildings ... ." within the meaning of sub-s.14(1)(c). It was argued for the appellant that a provision which prohibits the erection or use of a building for a particular purpose prescribes, presumably by exclusion, the character of a building which may be erected and used.

The appellant sought to support its contention by judgments by courts in other States on comparable but different legislation - such as Baker v. Cumberland County Council (1956) 1 LGRA 321 - and by reference to views which have been expressed in a variety of contexts by learned text-writers. However, as the appellant acknowledged, its research indicated that the Queensland legislative provisions which are presently material have not been considered by any appellate court. In the circumstances, there is only limited assistance available from existing judgments and texts, and it is substantially necessary for this Court to construe the material provisions of the City of Brisbane Town Planning Act for itself in the context of the wider legislative scheme of which they form part.

It is convenient to start with sub-section 14(1)(d), which plainly - as the appellant concedes - operated in respect of the respondents' compensation claim. The material provision of the 1987 Town Plan prohibits the erection or use of a building for the purpose of an apartment building and, by virtue of sub-section 14(1)(d), compensation would not be payable to the respondents except for the circumstance that they are able to bring themselves within the proviso commencing "unless" . Subject to one qualification based on a very strained and artificial construction of sub-section 14(1)(c) which does not merit discussion, the appellant acknowledged that the interpretation of sub-section 14(1)(c) for which it contends leaves no operation for sub-section 14(1)(d), and indeed in cases where the proviso to sub-section 14(1)(d) is applicable that the two subsections produce conflicting results.

This somewhat unattractive result is not one which would readily attribute to the legislature. It is therefore necessary to turn to sub-s.14(1)(c) to see if the language, or discernible purpose, of that provision warrants such a conclusion.

Two features of sub-s.14(1)(c) are immediately obvious. Relevantly, the sub-section is concerned with

provisions which prescribe, not prohibit; put broadly, with provisions which lay down requirements which are to be met, not with prohibitions on what may be done except in the limited sense that every positive requirement carries within it a negative obligation not to act differently.

Secondly, the reference to "character" in sub- s.14(1)(c) appears in the context of a series of descriptive features of buildings which are unrelated to a building's use; thus, the prescriptions referred to concern a building's "height, floor space, design, external appearance or character", irrespective of its use. While it is not easy to substitute a synonym for "character" in the context - perhaps "distinctive style" will suffice - and there may well be overlap between "design", "external appearance" and "character", the material portion of sub-s.14(1)(c) is not directed to the purpose or use of a building but to features associated with the form and manner of its construction.

By contrast, sub-s.14(1)(d) is, as has been stated, unequivocally concerned with the purpose for which a building is used, and it is to that topic that the prohibition in the Town Plan which is presently material relates.

It follows that the respondents' entitlement to compensation under section 13, which is preserved by the proviso to sub-s.14(1)(d), is not excluded by sub- s.14(1)(c), which is not directed to a prohibition upon the erection or use of a building for a particular purpose on the respondents' land.

The appeal is therefore dismissed, with costs to be

taxed.
IN THE COURT OF APPEAL

QUEENSLAND

C.A. No.174 of 1992

Before the Court of Appeal

The President
Mr Justice McPherson
Mr Justice Derrington

CARMEL MICHELE DOUGLAS and WILLIAM LEONARD DOUGLAS as trustees for the W.L. & C.M. DOUGLAS FAMILY

TRUST

and WILLIAM LEONARD DOUGLAS

(Appellants) Respondents

- and -

BRISBANE CITY COUNCIL

(Respondent) Appellant

JUDGMENT OF THE COURT

Delivered the twenty-sixth day of November, 1992

MINUTE OF ORDER:	Appeal dismissed with costs to be taxed.
CATCHWORDS:	Local Government. Town Planning. Appeal from order to pay respondents for injurious affection to respondents land - whether s.14(1)(c) is directed to a prohibition upon the erection or use of a building for a particular purpose on respondents' land - whether respondents' entitlement to compensation is therefore not excluded.
Counsel:	Mr D.R. Gore Q.C. with him Mr Trotter for the appellant
Mr J.E. Gallagher Q.C. with him Mr J. Haydon for the respondents
Solicitors:	City Solicitor for the appellant
Messrs. Stubbs Barbeler Grant for the respondents

Hearing date: 18th November, 1992
IN THE COURT OF APPEAL

QUEENSLAND

C.A. No.174 of 1992

CARMEL MICHELE DOUGLAS and WILLIAM LEONARD DOUGLAS as trustees for the W.L. & C.M. DOUGLAS FAMILY

TRUST

and WILLIAM LEONARD DOUGLAS

(Appellants) Respondents

- and -

BRISBANE CITY COUNCIL

(Respondent) Appellant

The President
Mr Justice McPherson

Mr Justice Derrington

Judgment of the Court delivered

the twenty-sixth day of November, 1992

APPEAL DISMISSED WITH COSTS TO BE TAXED.