Friend and Friend v Laidley Shire Council

[1998] QCA 335

IN THE COURT OF APPEAL	[1998] QCA 335
SUPREME COURT OF QUEENSLAND

Appeal No. 8630 of 1997

Brisbane

[Friend & Anor. v. Laidley Shire Council]

BETWEEN:

GARY STEPHEN FRIEND

(First Respondent) First Appellant

AND:

KATHRYN JUNE FRIEND

(Second Respondent) Second Appellant

AND:

LAIDLEY SHIRE COUNCIL

(Applicant)	Respondent
de Jersey C.J. McMurdo P. Moynihan J.

Judgment delivered 23 October 1998

Judgment of the Court.

APPEAL DISMISSED WITH COSTS, INCLUDING ANY RESERVED COSTS, TO BE

TAXED.

CATCHWORDS:	PLANNING AND ENVIRONMENT - statutory interpretation - consequences of mandatory or directory characterisation of legislative provisions - correct approach is to consider apparent purpose of legislation - appellants restrained from using land for purpose of kennels on basis of non-compliance with town planning conditions.
Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 72 A.L.J.R. 841 H.A. Bachrach Pty. Ltd. v. Logan City Council and Ors (1992) 80 L.G.E.R.A. 230
Counsel:	The appellants appeared on their own behalf. Mr D.R. Gore Q.C. for the respondent.
Solicitors:	The appellants appeared on their own behalf. Connor O'Meara McConagh for the respondent.
Hearing Date:	1 October 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8630 of 1997

Brisbane

Before de Jersey C.J.

McMurdo P. Moynihan J.

[Friend & Anor v. Laidley Shire Council]

BETWEEN:

GARY STEPHEN FRIEND

(First Respondent) First Appellant

AND:

KATHRYN JUNE FRIEND

(Second Respondent) Second Appellent

AND:

LAIDLEY SHIRE COUNCIL

(Applicant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23 October 1998

1. On 3 September 1997, the Planning and Environment Court restrained the appellants from using

   their land at Lockyer Waters (in the Laidley Shire) for the purpose of kennels, “unless and until there

   has been compliance with the conditions of approval” contained in an order made by that Court on 17

   February 1992. Those conditions were, in brief, (a) that the appellants’ two lots be amalgamated, (b)

   that an approved dwelling be constructed and occupied before commencement of any use, (c) that a

   layout plan be submitted, (d) that the proposed uses be “sighted (sic) to the Council’s satisfaction”, (e)

   that the design layout and construction of the kennels accord with the Council’s domestic animals and kennels policy, (g) as to on-site carparking, (h) that the dogs be registered, and (i) that the number of

   them be restricted, and (j) as to noise levels. The learned Judge constituting the Court found non-

   compliance with most of those conditions (a,b,c,d,e and h), hence the restraining order, and he

   suspended its operation for a month to allow the appellants an opportunity to comply with the

   conditions.

2. The appellants’ Notice of Appeal dated 29 September 1997 is an extensive document

   containing many assertions and contentions. We had the benefit of comprehensive written submissions

   from both the appellants and the respondent Council, and supplementary oral submissions. As the

   matter was pursued, only four matters fall for this Court’s determination. We deal with them in turn.

3. The appellant’s first contention may be expressed as follows. The validity of the conditions, with

   which the appellants have not complied, depends on there having been (specifically as at 17 February

   1992) a current Town Planning Scheme for the Shire of Laidley, for that Scheme could provide the only

   arguable authority for the imposition of the conditions. There was, as at February 1992, no valid current

   Plan. The Plan on which the Court relied commenced on 12 November 1977. Under s.33(4)(b)(i) of

   the Local Government Act 1936 (now repealed, but then applicable), the respondent was obliged to

   review its Planning Scheme within seven years of 12 November 1977. It failed to do so. Further, it was,

   within ten years of 12 November 1977, obliged to determine and take action to prepare a new Town

   Planning Scheme (s. 33(4)(iv)). Again, it failed to do so. Accordingly, the Scheme on which the Court

   relied ceased as at 12 November 1987, with the consequence that there was no authority for the

   imposition of the subject conditions with which the appellants have failed to comply, and also no basis

   for the injunction.

4. The relevant statutory provisions are:

   “ (4) Local Authority to administer scheme. (a) The Local Authority is hereby charged with the administration, implementation and enforcement of the scheme.

   (b)(i) The Local Authority shall review a town planning scheme within the period of seven years next following the date of publication in the Gazette of the Order in Council notifying approval of the scheme.

   Where upon a review pursuant to this paragraph the Local Authority determines that the scheme does not require amendment, it shall report to the Minister accordingly.

   (ii) Where, upon a review pursuant to this paragraph, the Local Authority determines that the scheme does not require amendment, it shall further review the scheme within the period of three years next following the date of the last review and shall report to the Minister the results of such review.

   (iii) Where upon a review in accordance with subparagraph (i) or (ii) the Local Authority determines that the town planning scheme requires amendment it shall take action necessary to—

(A)	prepare a new town planning scheme for the Area or part of the Area, or
(B)	amend the scheme to provide for the amendment or amendments that are required pursuant to the determination.

(iv) Notwithstanding the requirements of this paragraph, the Local Authority shall determine and take action within a period of ten years next following the date of publication in the Gazette of the Order in Council notifying approval of the scheme, to prepare a new town planning scheme for the Area or part of the Area unless upon application made to him by the Local Authority stating the grounds therefor, the Minister extends such period (which he is hereby authorised to do).”

1. The appellants focus on the apparently mandatory character of the legislative commands in s.

   33(4), and the respondent’s undisputed non-compliance with them. They point also to s.26 of the Acts

   Interpretation Act 1954, as to the interpretation of the word “shall”. They refer as well to the

   respondent’s failure to secure from the Minister an extension of time for the preparation of a new
   Scheme (s.33(4)(iv)).

2. The learned Judge rejected the contention that at the end of the ten year statutory period, the

   previously applicable Scheme came to an end because of the respondent’s non-compliance with its

   statutory obligations. His Honour said:

   “Attention was drawn to the provisions of the superseded Act (s.33(4)) under which the amended Town Planning Scheme was gazetted whereby the local government is, within a specified period, required to prepare a new Town Planning Scheme for its area in accordance with those provisions. Comparable provisions are found in the current Act (s.2.16). Failure by the applicant to comply with these provisions is asserted by the respondent.

   There is however in the provisions of neither Act (or the Savings and Transitional provisions (s.8.10) of the current Act under which the current Town Planning Scheme for the Shire of Laidley continued in force after the commencement of the Act) nothing that supports the proposition that a failure by a local government to review a Town Planning Scheme as required by the legislation deprives an existing scheme of its validity. It would seem to me that such a consequential result of what is a not infrequently encountered situation would require clear legislative indication.”

3. The appellants understandably focus on the mandatory character of the language of the statutory

   requirements. The relevant provision of the Acts Interpretation Act (whether s.26 of the 1954 Act

   or s.32CA of the Act as amended) would require a construction that the respondent “must” exercise

   the power. But that is not necessarily determinative of the consequences of non-compliance.

4. The current approach of the High Court does not favour the characterization of such obligations

   as either mandatory or directory, as if that were to determine all significant consequences. One should

   look more broadly to the apparent purpose of the legislation when determining the consequences of

   non-compliance with such requirements.

5. In Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 72 A.L.J.R. 841, the Court

   discussed the issue with relation to the validity of acts done in breach of legislative requirements. Here

   the respondent simply failed to comply with the requirements, but by parity of reasoning, the High
   Court’s approach is helpful to the resolution of the present case.

   In their joint judgment, McHugh, Gummow, Kirby and Hayne JJ. said (pp 860-861):

   “In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood (1978) 1 N.S.W.L.R. 20, 23-4 in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.’”

6. Adopting this approach, one should ask whether it was the purpose of this legislation that, in

   the event of the respondent’s non-compliance with the requirements of s.33(4), the previously current

   town planning scheme should terminate. One relevant consideration is the prospect of public

   inconvenience. As said by their Honours (p.861):

   “Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.”

7. Mr Gore Q.C., who appeared for the respondent, pointed to the possibly chaotic consequences

   of a termination of the scheme in these circumstances on 12 November 1987. There would be no

   controls upon land use and development in the Laidley Shire. Uses of any kind, however noxious or

   hazardous, could be carried on lawfully, including in residential areas.

8. The legislature would obviously have considered that an existing scheme, although arguably

   imperfect and warranting review, would certainly be better than none. While it is regrettable that the

   respondent failed to comply with the requirements of s.33(4), which are intended to keep town planning

   schemes up to date, the consequence of that non-compliance was not the termination of its scheme. The

   legislation was silent as to the consequences of non-compliance. It is inconceivable that the legislature

   would have intended that the previously applicable scheme terminate, leaving the Shire without any town

   planning control. Adopting the Blue Sky approach, and not being distracted by undue reliance on the

   character of the language of the provision, one should conclude that the town planning scheme on which

   the Court relied was indeed operative at the time of the order. The appellants’ first contention must

   therefore fail.

9. The appellants’ second contention was that the Court erred in imposing conditions in reliance

   on the currency of the town planning scheme. There was no current scheme, and the appellants were

   entitled to conduct their kennels without lawful impediment. The appellants referred to the Stock Act

   1915-1965 and to s.2 of the Local Government (Planning and Environment) Regulation 1991,

   under which use of land for kennels would not require local authority consent

10. This contention depends on there being no current town planning scheme, which was not the

    case for the reasons already expressed. Further, the applicability of the Local Government (Planning

    and Environment) Regulation depends in part expressly on there being “no planning scheme ... in

    force”: s.2.22(1) Local Government (Planning and Environment) Act.

11. This second contention likewise therefore cannot be sustained.

12. The appellants’ third contention is that the respondent’s policy, on which Condition (e) imposed on 17 February 1992 was based, was itself invalid. The policy, mentioned in that condition, was the respondent’s policy on domestic animals and kennels. The respondent adopted that policy on 12 July

    1978. (The text of the policy appears at pp 203-6 of the record.) The appellants relied on s.33(2C) of

    the Local Government Act, as to the composition of a Town Planning Scheme, to include “by-laws

    made by the local authority ... to implement the Scheme and to provide for, regulate and control the

    administration of the Scheme”, and pointed to the absence of any amendment of the scheme reflecting

    this policy. The contention depends on the applicability of this following provision of s.33(5): “Where the Local Authority makes a policy determination on town planning, other than a policy determination made pursuant to subsection (18E) (e), and that determination cannot be adequately presented or interpreted save by means of reference to, delineation on or marking of a map the Local Authority shall, within 30 days after the date of such making, take such action as is prescribed by this subsection with a view to amendment of the scheme and thereafter, unless the Local Authority abandons the determination so made, it shall apply to the Minister for amendment of the scheme in accordance with this subsection.

    Such policy determination shall have no force and effect unless and until the amendment of the scheme incorporating such determination is approved by the Governor in Council.”

13. The short answer to the contention is that the respondent’s relevant policy was of Shire wide

    application. Its adequate presentation or interpretation did not require “reference to, delineation on or

    marking of a map”, in terms of s.33(5).

14. In any case, this policy was not the basis of all conditions with which the appellants failed to

    comply (a,b,c,d,e and h). It is reasonably plain that the Court would have made the injunction even were

    non-compliance with (e) excluded from consideration, so that consistently with the approach discussed

    in H.A. Bachrach Pty. Ltd. v. Caboolture Shire Council (1992) 80 L.G.E.R.A. 230, 237-8, this Court

    would not interfere.

15. The appellants submitted, alternatively, that the policy amounted to a by-law which amended existing by-laws, necessitating compliance with s.31(27)(iii)(b)(ii), citing Kwik Snax Mobile and Industrial Caterers Pty. Ltd. v. Logan City Council and Ors (1993) 81 L.G.E.R.A. 55. The submission

    ran that Chapter 13 of the respondent’s Bylaws dealt with the keeping of dogs, and that as this policy

    dealt with the use of land as kennels, it involved an amendment of the Bylaws. The point of distinction

    however is that the Bylaw dealt with the registration of dogs, not the use of land for kennels, as did the

    policy. The policy did not therefore amend the Bylaw, so that suggested non-compliance with s.31(27)

    does not arise.

16. This third contention also fails.

17. The appellants’ fourth contention was developed in these terms in their written submissions:

    “There has been no separation of powers in this case.

    Law has been enacted by the Planning & Environment Court, through the failure of the Respondents having to produce lawful evidence, that the Respondents held lawful authority to stop ‘the use of the subject land’.”

18. Orally, the female appellant asserted that “no law at all has been applied” in the case. The male

    appellant added that “the role of the court is to administer the law”.

19. So far as this fourth ground may be understood, it raises no point requiring any ruling additionally

    to those expressed in response to the first three contentions.

20. We would dismiss the appeal, with costs including any reserved costs to be taxed.