Friends of Stradbroke Island Assoc Inc v Sandunes Pty Ltd and Redland Shire Council

[1998] QCA 374

IN THE COURT OF APPEAL	[1998] QCA 374
SUPREME COURT OF QUEENSLAND

Appeal No. 9215 of 1998

Brisbane

[Friends of Stradbroke Is. Assoc. Inc. & Anor v Sandunes P/L & Anor]

BETWEEN:

FRIENDS OF STRADBROKE ISLAND ASSOCIATION INC.,

STRADBROKE ISLAND MANAGEMENT ORGANISATION INC.

(Applicants) Applicants

AND:

SANDUNES PTY LTD (ACN 081 112 058)

(Second Respondent) First Respondent

AND:

REDLAND SHIRE COUNCIL

(Third Respondent) Second Respondent

McMurdo P.
Pincus J.A.

Muir J.

Judgment delivered 17 November 1998

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL REFUSED. ORDER THE APPLICANTS TO PAY THE FIRST AND SECOND RESPONDENTS' COSTS OF AND INCIDENTAL TO THE APPLICATION TO BE TAXED.

CATCHWORDS:	TOWN PLANNING - construction of town planning consent permit - whether permit should be construed as containing two separate permits.
Integrated Planning Act 1997 ss 4.1.56 and 6.1.23(2). Local Government (Planning and Environment) Act 1990 s.4.13(18)(a).
Counsel:	Mr T. Quinn for the applicants Mr R.W. Gotterson QC for the first respondent Mr D.P. Kevin (solicitor) for the second respondent
Solicitors:	Carew & Company for the applicants Shand Taylor for the first respondent King & Company for the second respondent
Hearing Date:	26 October 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9215 of 1998

Brisbane

Before McMurdo P.
Pincus J.A.
Muir J.

[Friends of Stradbroke Is. Assoc. Inc. & Anor. v. Sandunes P/L & Anor.]

BETWEEN:

FRIENDS OF STRADBROKE ISLAND
ASSOCIATION INC.
STRADBROKE ISLAND MANAGEMENT

ORGANISATION INC.

(Applicants) Applicants

AND:

SANDUNES PTY LTD

(ACN 081 112 058)

(Second Respondent) First Respondent

AND:

REDLAND SHIRE COUNCIL

(Third Respondent) Second Respondent

REASONS FOR JUDGMENT - McMURDO P.

Judgment delivered 17 November 1998

1. I have read the reasons prepared by Muir J., who has set out the relevant issues.

2. I would only add that if the applicants’ submission was correct and the permit had lapsed, the building work constituting Stage 2 under the permit may now be prohibited by the provisionsof a Development Control Plan gazetted on 9 February 1996.

3. The land the subject of this application is a prominent 8,749 sq.m. parcel of land

   overlooking Main Beach, Point Lookout, North Stradbroke Island. The building work proposed

   to be done on the land involves 40 units and will be worth millions of dollars if completed. It will

   be visible from Point Lookout Headland, Main Beach and from the approaches to Main Beach.

   The question the applicants seek to have determined on appeal is therefore of considerable public

   interest to those who live at or visit Point Lookout. In some circumstances, that may be a relevant

   factor in deciding whether leave should be given to appeal under s. 4.1.56(2) of the Integrated

   Planning Act 1997 once s. 4.1.56(1) of that Act has been satisfied.

4. In this case however, the decision of the judge below was plainly correct for the reasons

   given by Muir J. In those circumstances, it would be pointless to grant this application for leave to

   appeal.

5. I, too, would refuse the application for the reasons given by Muir J.

   IN THE COURT OF APPEAL

   SUPREME COURT OF QUEENSLAND

   Appeal No. 9215 of 1998.

   Brisbane

Before McMurdo P.
Pincus J.A.
Muir J.

[Friends of Stradbroke Is. Assoc. Inc. & Anor v. Sandunes P/L & Anor]

BETWEEN:

FRIENDS OF STRADBROKE ISLAND ASSOCIATION INC.,

STRADBROKE ISLAND MANAGEMENT ORGANISATION INC.

(Applicants) Applicants

AND:

SANDUNES PTY LTD ACN 081 112 058

(Second Respondent) First Respondent

AND:

REDLAND SHIRE COUNCIL

(Third Respondent) Second Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17 November 1998

1. I have read the reasons of Muir J. in which his Honour explains the issues sought to be

   raised by this application for leave to appeal from a judgment of the Planning and Environment

   Court. Because that judgment was given after 30 March 1998, appeals to this Court are governed

   by s. 4.1.56 of the Integrated Planning Act 1997; leave is now necessary. Although s. 4.1.56

   does not say that a grant of leave is dependent upon there being a question of law involved, the only

   permissible grounds of appeal are error or mistake in law and lack of or excess of jurisdiction.

   There being no question here about the Planning and Environment Court’s jurisdiction, leave should not be granted unless there appears to be some prospect of showing an error or mistake in law.

2. The legal error which Mr Quinn, for the applicants, relied on was in substance that the

   primary judge had misapplied s. 4.13(18)(a) of the Local Government (Planning and

   Environment) Act 1990, under which the relevant permit lapsed if -

   "the use of land or the use or erection of a building or other structure on land, the subject of the approval in respect of which the permit was issued, has not been commenced within 4 years of the date of issue of the permit . . .".

   For the argument in the proposed appeal to succeed, it would have to be held that s. 4.13(18), part

   of which I have quoted, applied severally to each of two buildings or sets of buildings construction

   of which was allowed by the permit. The facts to which s. 4.13(18) has to be applied are not, it

   appears, in issue and if an appeal is allowed to be brought the question will be the application of the

   language I have quoted to those facts.

3. Is that a legal or a factual question? The earnest inquirer after truth in this field would

   formerly have found himself in a Slough of Despond. But authoritative light has been shed on the

   subject by the tentative approval given in Collector of Customs v. Agfa-Gevaert Limited (1996)

   186 C.L.R. 389 at 395, 396 to five propositions stated by the Full Federal Court in Collector of

   Customs v. Pozzolanic Enterprises Pty Ltd (1993) 43 F.C.R. 280. The most pertinent of them is

   the fifth, which as qualified by the Federal Court, is that:

   ". . . when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact". (Agfa-Gevaert at 395)

   In Agfa-Gevaert the High Court, as I understand their Honours’ reasons, approved another rule:

   Determination of whether a phrase is a composite phrase or not is a question of law.

   My confidence in my ability properly to apply this is not at a high level; but it appears that it has no

   application to the present case.

4. The proper course is to apply proposition five, which was discussed in Yu Feng Pty Ltd

   v. Maroochy Shire Council (Appeal No. 122 of 1995, 10 July 1996). My inclination is towards

   the view that if that rule is accepted, there is no legal point here, for it was reasonably open to hold

   that the permit in the present case fell within s. 4.13(18)(a); the document held to be one rather than

   two permits could reasonably, on its wording, be so held.

5. Mr Quinn argued for rather a broad interpretation of the relevant provisions at one stage,

   to the effect that where a permit gives two rights, s. 4.13(18) must be applied severally to each right.

   In the end, however, he pressed a narrower contention, that if a permit allows the construction of

   a number of buildings or sets of buildings which are separate "not only physically but also in the use

   that’s to be made of them", then that justifies the conclusion that there are, for the purposes of

   s. 4.13(18), as many permits as there are buildings or sets of buildings. He illustrated this by saying

   that if there were approval to build a house and a detached garage for cars, that might be treated

   as a single permit because of the association between the uses to which the two buildings are to be

   put.

6. In the end, the legal point put forward appeared to be whether s. 4.13(18) is to be applied

   severally to each of the buildings or sets of buildings covered by a single permit, where there is no

   connection, either physically or as a matter of a user, between the buildings or sets of buildings. No authority was able to be cited to support an affirmative answer, nor is it, in my opinion, a view which

   has any reasonable chance of being accepted, if leave is granted. The expression "permit issued"

   in s. 4.13(18) refers on the face of it to a document having a certain legal effect; when s. 4.13(18)

   says that a "permit issued . . . lapses" it means that the legal effect of the document in question

   ceases. The nature of the document is precisely identified by s. 4.13(18); it is a "permit issued

   pursuant to subsection (12)" and that subsection requires the chief executive officer of the local

   government to "forthwith issue a town planning consent permit" in certain circumstances - meaning,

   I think, a document. It must be conceded that a chief executive might - although it would not be a

   convenient course - issue two separate permits on the one piece of paper and then no doubt s.

   4.13(18) would apply severally to each permit; but ordinarily what is on the face of it a single

   permit would be treated as one, for the purposes of s. 4.13(18). Muir J. has analysed the terms

   of the relevant permit in a way with which I respectfully agree, demonstrating that it is on its face a

   single permit in respect of one development.

7. Mr Quinn also pointed out that the issue in the case is one of considerable public importance

   and seemed to suggest that, if the permit had the effect which it has been held to have, it placed the

   developer in a remarkably and perhaps unjustifiably favourable position. Some might think it odd

   that the law permits the developer, having constructed one of the buildings or sets of buildings

   envisaged by the permit, to defer construction of the other until a time when, it is said for the

   applicant, the planning environment has so changed as to make its construction inappropriate.

   Arguments of this sort, however, cannot assist the applicant towards a solution of its basic difficulty,

   which is that the argument it puts forward as to the effect of s. 4.13(18), even if it is one raising a
   question of law, has no reasonable chance of success.

8. Another approach to the problem is to consider the construction of the lapsing provision

   in the permit itself, cl. 25. That does not raise any additional consideration which might assist the

   applicant; it is unnecessary to say more of it than that the construction of a statute seems more likely

   to raise a legal question than the meaning of a permit.

9. Despite the thorough and careful argument put by Mr Quinn, I agree that the application

   should be refused.