H A Bachrach Pty Ltd v Caboolture Shire Council

[1992] QCA 384

IN THE COURT OF APPEAL	[1992] QCA 384
SUPREME COURT OF QUEENSLAND	Appeal No. 84 of 1992
BETWEEN:

H.A. BACHRACH PTY LTD. & OTHERS

Appellants

AND:

THE COUNCIL OF THE SHIRE OF CABOOLTURE

First Respondent

AND:

OSTERLEY PTY LTD

Respondent by Election

REASONS FOR JUDGMENT OF THE COURT

Delivered the 12th day of November 1992

This is an appeal against a decision of the Planning and Environment Court dismissing an appeal to that court from the decision of the Caboolture Shire Council proposing to grant approval, subject to conditions, to the respondent by election to rezone approximately five hectares of land located on Morayfield Road in that Shire from the special rural zone to the central commercial zone, the proposed development being a shopping centre. The appellant's contention is that the court misconstrued the strategic plan for the Shire of Caboolture thus leading her into error.

The appellant says that the misconstruction was an error of law and asks this Court to send the matter back to the Planning and Environment Court to proceed on the proper construction of the strategic plan.

The application for rezoning was made before the commencement of the Local Government (Planning and Environment) Act 1990 ("the Act"), the transitional provisions of which provide that such an application is to be dealt with as if that Act had not commenced. However, the appellant submits that the appeal to this Court is not a proceeding dealing with that application but rather with a decision of the Planning and Environment Court given after the commencement of the Act. The respondents did not contend to the contrary and indeed nothing turns on this question. The appeal to this Court from the Planning and Environment Court under the Act is "on the ground of error or mistake in law on the part of the Court or that the Court had no jurisdiction to make the determination or exceeded its jurisdiction in making the determination": s. 7.4(3).

However, appeals to this Court were provided for under the predecessor of that section, s. 28(3) of The City of Brisbane Town Planning Act of 1964, in identical terms. Accordingly, in the absence of argument we are prepared to assume that this appeal is under s. 7.4(3) rather than its predecessor.

There is no question of absence or excess of jurisdiction in the Planning and Environment Court in making its determination, the subject of this appeal. However, it was contended by the respondents that there was no error or mistake in law on the part of the court and that consequently this appeal was not competent. The error or mistake in law which the appellant says the court made was one of construction of the strategic plan which is part of the Town Plan of the Shire of Caboolture.

The appellants are the owner and a number of tenants of the Caboolture Park Shopping Centre in the town centre of Caboolture. The respondent by election sought rezoning of the subject land, which is about two kilometres south of that town centre, for a shopping centre which is substantially larger than the Caboolture Park Shopping Centre.

A strategic plan is given statutory force by s. 33 of the Local Government Act 1936. Sub-section (2A) requires a local authority, unless exempted by the Minister, to prepare a strategic plan for the town planning scheme area and requires, where a town planning scheme is open to inspection, that it be accompanied by the strategic plan.

Sub-section (2C) provides that a strategic plan shall form part of the town planning scheme. Sub-section (2D) provides that a strategic plan shall consist of a map or series of maps identifying preferred dominant land uses; a statement of objectives of the local authority in relation to preferred dominant land uses, together with other criteria for determining the type, scale or distribution of other uses required as an integral component to service the preferred dominant land uses; copies of writings for the implementation of that plan; and copies of writings containing supporting information used for or in connection with the preparation of that plan.

Sub-section (6A) provides, in paragraph (e) that in respect of an application for rezoning of land, the local authority shall, amongst other things, take into consideration whether the inclusion of the land in the zone in which the land is proposed to be included would be in accord with, or conflict with, the strategic plan. Her Honour was therefore obliged to consider whether the proposed rezoning here would be in accord with or in conflict with the strategic plan.

Although s. 33 was repealed before the matter came before the Planning and Environment Court, this application, since it had not been finally approved before commencement of the Act, is to be dealt with as if the Act had not commenced: s. 8.10(9)(a) of the Act.

The relevant parts of the strategic plan for the Caboolture Shire were clause 6 sub-clauses (1), (2) and (4) which provide:

"(1) OBJECTIVE
To encourage consolidation and expansion of
existing major commercial and business areas

within the Shire.

Implementation
With the exception of a new major centre indicated
for Bribie Island, all significant commercial and
business developments in the Shire should expand
upon or support existing concentrations of
business and commercial activity.
The further development of these existing centres
will be encouraged through:

(a)  The preparation of Development Control Plans or other policy documents to guide the future development of existing centres.

(b)  The provision of an effective system of car parking through -

(i) the application of car parking requirements in accordance with Division IV of Part V of the Schedule; and

(ii) using Council's discretion as provided for in clause (3)(b) of Division IV of Part V to obtain cash contributions in lieu of some or all carparking requirements for developments where the existing pattern of subdivision or development in a centre precludes the provision of an efficient parking system on site. In such cases the cash contribution will be used by the Council to provide parking areas which have reasonable pedestrian access to commercial and business facilities.

(c)  The provisions in the town planning scheme which encourage development and redevelopment of existing centres by allowing, amongst other things -

(i) a plot ratio of building to site on land zoned Central Commercial of up to 4:1; and

(ii) a site coverage of up to 80%.

Council will not approve applications which would facilitate a significant increase in shopping or business activity unless it can be clearly demonstrated that the proposed development represents an expansion of, or is complementary to an existing centre.

The central business area of Caboolture, through continuing development and redevelopment, is continuing to maintain its role as the administrative business and retail centre of the Shire and the maintenance of this position will be encouraged to ensure that a business centre of regional significance is retained in the Shire to serve the Shire's population. Expansion of the town centre is envisaged to the south, incorporating part of Elliott Street, and to the north-west along East Street.

(2) OBJECTIVE
To encourage development along Morayfield Road
south of the Caboolture River for commercial-
service industry and showroom type use at
locations and in a manner not considered
detrimental to existing and proposed residential
areas and in keeping with a visually open
presentation along Morayfield Road.
Implementation
The level of accessibility and exposure afforded
by Morayfield Road makes it an attractive location
for a variety of commercial and industrial uses.
It is considered inappropriate to permit uses
along Morayfield Road which would operate in
competition with the retailing and business
activities of the Caboolture town centre except
for an area on the eastern side of Morayfield Road
opposite Caboolture River Road which will function
as the town centre for Morayfield. The Morayfield
Road area excluding the Morayfield town centre is
desired to function as a complementary area to the
town centre by catering for commercial industry
and showroom type uses. To achieve this objective
the Council will encourage the use of the
Commercial Industry Zone along Morayfield Road
which facilitates the 'as of right' development of
showrooms, commercial premises and commercial
industries. This zone also permits, with the
Council's consent, a variety of uses including
take-away food premises, professional offices and
indoor entertainments which may be appropriate at
certain locations in this area.

The extent of such development along Morayfield Road shall be confined to the general areas presently committed to commercial development. On the eastern side of Morayfield Road commercial industry activities would be supported between Aerodrome Road and the extension to Park Reserve R2573 and if of a more industrialized nature, between Morayfield Station Road and the railway overbridge. On the western side of Morayfield Road commercial industry activities would be supported between Torrens Road and Caboolture River Road and from Oakey Flat Road south to and including Lot 5 on R.P. 44194. The development along Morayfield Road shall be visually open in appearance to achieve an attractive streetscape with buildings set back from the road alignment to varying degrees and with landscaping and car parking provided in front of the building as appropriate. Development on the western side of Morayfield Road shall incorporate buffer areas at the rear of the sites where the land adjoins existing or proposed residential areas. At locations where a road intersecting with Morayfield Road traverses the commercial area, the development along the intersecting road may be of a commercial nature subject to it comprising uses which provide a transition to the residential area and avoids the progression of commercial development along the road.

...

(4) OBJECTIVE
To permit, where justified, the establishment of
sub-regional and district facilities in locations
of high access convenience where such facilities
are considered complementary to the existing

principal business centres.

Implementation
Preference will be given to the development and
redevelopment of the principal centres. In
considering rezoning applications which would
facilitate the establishment of a major shopping
facility which does not expand upon an existing
centre, Council will have regard to, among other
matters, the following -

(a)  whether the new facility should more appropriately be incorporated in an existing centre;

(b)  the likely adverse affects of the proposal on existing facilities;

(c)  whether adequate access would be available to the site to ensure minimal detrimental effects on traffic flows in the locality;

(d)  whether the proposed development would be likely to encourage commercial ribbon development;

(e)  any possible deleterious effects of the proposal on the amenity of an area."

The proposed shopping centre was intended to occupy both the subject land, which, as we have said, was of an area of approximately five hectares and an adjoining parcel of land of approximately 2.3 hectares which was already appropriately zoned and on which there was a Franklins store and a number of other smaller shops; and it would have, in total, 19,780 sq. metres of floor area. The Caboolture Park Shopping Centre, by contrast, occupies only 1.72 hectares with 15,000 sq. metres of floor area. There are, of course, other shops in the central business area and there is approximately 12 hectares of land zoned central commercial in that area.

The existing Franklins store in Morayfield Road adjoins other land which is also zoned central commercial. There is an existing approval to substantially increase the size of the Franklins store in that zone. The land on which the Franklins store is situated and the adjoining land to the south, which is also zoned central commercial, is on the eastern side of Morayfield Road opposite Caboolture River Road. We mention this because of the reference in clause 6(2) to "an area on the eastern side of Morayfield Road opposite Caboolture River Road which will function as the town centre for Morayfield". The subject land, which is also on the eastern side of Morayfield Road, is to the north of the point in that road opposite Caboolture River Road.

It seems likely therefore that the passage which we have quoted is a reference to the total area zoned central commercial on the eastern side of Morayfield Road the northern part of which is the existing Franklins store; and it is unlikely that it refers to the subject land which is not directly opposite Caboolture River Road and which was and still is zoned special rural.

The specific parts of the above sub-clauses of the strategic plan which were required to be construed by Her Honour were the second last and particularly the last paragraph of sub- clause (1), the first paragraph under the heading "Implementation" in sub-clause (2); and sub-clause (4).

Curiously, her Honour allowed town planning witnesses to give evidence of the meaning of these sub-clauses and purported to arrive at the construction which she did by accepting some and rejecting another of those witnesses. Moreover, we were told that this was a common practice in the Planning and Environment Court. Common practice or not, it was plainly wrong. The opinion of a town planner upon a question of construction, whether that question is one of law or of fact, is irrelevant. No doubt an expert may give evidence of the meaning of a technical word or phrase but that was not what was done here.

Her Honour's conclusions on these questions were that the proposal did not conflict with clause 6(1) and in particular that it did not unduly impact on the central business area such that it would no longer be a business centre of regional significance; that it did not conflict with clause 6(2) and that it was consistent with clause 6(4). Her Honour thought that this was so notwithstanding that most of the witnesses accepted that it was possible that there would be greater retail floor space and greater retail expenditure at Morayfield, if the proposed rezoning were allowed, than in the central business area; and notwithstanding the evidence, which she accepted, that the consequence of the proposed shopping centre would be that, for people living north of the central business area, the central business area would be the dominant centre, but that for people living south of the central business area, the proposed centre would be the dominant retail centre.

The reason why her Honour held that the proposal did not conflict with clause 6(1) was that, notwithstanding that the proposed centre would be a larger retail centre than any in the central business area, the central business area would remain the commercial business centre for the Shire and the centre for a range of quality comparative shopping (whatever that means) in consequence of which it would remain a business centre of regional significance. In other words, her Honour did not think that the fact that the central business area would no longer be the major retail centre in the Shire meant that it would no longer be the administrative, business and retail centre of the Shire.

Divorced from its context clause 6(1) is capable of bearing that construction; that is that the phrase "administrative business and retail centre" must be read so that it is sufficient if any combination of administrative business and retail activities ensures that the central business area of Caboolture is a business centre of regional significance.

However, the context, in our view, dictates that the phrase should be construed distributively; the intention being that the central business area of Caboolture should be and remain the administrative centre, the business centre and the retail centre of the Shire.

The second last paragraph of sub-clause (1) and the paragraph to which we have referred in sub-clause (2) must be read together. So read together, that paragraph in sub- clause (1) indicates, in our view, that the Council would not approve an application which would facilitate a significant increase in shopping activity on the combined area of land consisting of the subject site and the existing Franklins store unless it could be clearly demonstrated that the proposed development represented an expansion of, or is complementary to, the existing centre functioning as the town centre for Morayfield.

Moreover the phrases in sub-clause (2) "It is considered inappropriate to permit uses along Morayfield Road which would operate in competition with the retailing and business activities of the Caboolture town centre" and "The Morayfield Road area excluding the Morayfield town centre is desired to function as a complementary area to the town centre", that is the Caboolture town centre, recognise that, except for the area that is to function as the town centre for Morayfield, the Morayfield Road area generally will not detract from but will complement the retailing and business activities of the Caboolture town centre, thus ensuring its preeminence as the major retailing and business centre of the Shire. It is significant in our view, that a great deal of that Morayfield Road area is zoned central commercial by the plan of which the strategic plan forms part and that the area so zoned is in close proximity to the subject land.

Her Honour did not see sub-clause (2) as preventing a shopping centre on the subject land which, together with the existing Franklins, would compete with the central business area to the extent that it would be the dominant retail centre for people living south of the central business area.

She seemed to arrive at this conclusion by correctly concluding that an area on the eastern side of Morayfield Road opposite Caboolture River Road was an exception to the inappropriateness of permitting uses along Morayfield Road which would operate in competition with retail activities in the Caboolture town centre; and then by concluding, wrongly in our view, that there was no limitation upon the extent of the competition which this exception permitted. In our view, there were two such limitations. Plainly one limitation was that it was allowed to compete only to the extent that it functioned as the town centre for Morayfield.

The other limitation was that, there being an area zoned central commercial in Morayfield Road opposite Caboolture River Road in the town plan of which the strategic plan formed part, the area on the eastern side of Morayfield Road opposite Caboolture River Road referred to in this sub- clause was that area so zoned. As we have already indicated, that did not include the subject land. No doubt application could be made to increase that area but such an application would not be approved unless it could be clearly demonstrated that the proposed development represented an expansion of the existing centre functioning as the town centre for Morayfield.

At the time the plan became law the town centre of Caboolture was substantially larger than the town centre of Morayfield in each of the activities of administration, business and retailing. It was plainly the intention of the strategic plan that that be maintained.

Her Honour dealt with clause 6(4) by purporting to accept the evidence of certain town planning witnesses that it was relevant here and that "it endorses the subject as a sub regional centre". We do not understand what her Honour meant by this. Perhaps it might be explained by reference to the evidence of the witnesses to whom she refers, but as we have said that her reliance on that evidence in order to construe any of these clauses was wrong, we do not think it appropriate to refer to that evidence for any purpose and we have not done so. Clause 6(4), on its face, is a general provision which plainly must be read subject to the specific provision in sub-clause (2). Because of sub-clause (2) it can have no application to the establishment of a shopping centre in the Morayfield Road area, where retailing is to be permitted only to the extent that it will function as the town centre for Morayfield.

We are therefore of the view that her Honour was in error in her construction of each of sub-clauses (1), (2) and (4) of clause 6. In particular she erred in concluding that the proposal did not conflict with clause 6(1) or clause 6(2) and that it was consistent with clause 6(4). It remains to consider whether in any of those respects the error was one in law.

Where a court is concerned with the meaning of a statutory provision, once the question is properly characterised as one of construction, that is, where it goes beyond merely determining the meaning of a word or phrase used according to its common understanding, it is a question of law. Thus in Hope v. Bathurst City Council (1980) 144 C.L.R. 1 at 10, Mason J. (as he then was), with whose reasons all other members of the court except Murphy J. agreed, said at 10:-

"His Honour may have erred in arriving at the
common understanding of the word 'business'.
However, if this was an error, it was associated
with an omission to relate the word to the
expression with which it was associated, this
being an error in construction and accordingly of
law."

In that case the expression with which the word "business" was associated was "carrying on". Here the question of construction is more complex. Even if, strictly speaking, it is confined by the notice of appeal to the meaning of clause 6.1, it is the construction of that clause in a context which includes clauses 6.2 and 6.4. And the inter- relationship between those provisions, particularly between clauses 6.1 and 6.2, is vital to the proper construction of clause 6.1, as appears from the construction of those provisions which we have reached.

In our opinion, therefore, the question of the construction
of clause 6.1 by her Honour in the present case was one of
law and consequently there was an error of law made by her
Honour.
The final question in this appeal is what is the
consequence, if any, of that error. The respondents say
that, for any consequence to ensue, the appellant must
establish that the decision below would have been different
if the error had not occurred; whereas the appellant submits
that it is sufficient to show that the decision might have
been different if the error had not occurred. There are
dicta in The Queen v. Tennant & anor. ex parte Woods (1962)
Qd.R. 241 at 261 and Barmuncol Pty Ltd v Maroochy Shire
Council (1983) 50 L.G.R.A. 309 at 315 which appear to
support the respondent's contention. On the other hand, in
Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986)
162 C.L.R. 24 at 40 Mason J. (as he then was), with whose
reasons Gibbs C.J. and Dawson J. agreed, discussing the
consequence, in a review of a decision under the
Administrative Decisions (Judicial Review) Act 1977 (Cth),
of a failure to take into account relevant considerations,
said:-

"Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision."

We think that that is an appropriate test to apply here.
See also Minister for Immigration and Ethnic Affairs v. Haj-
Ismail (H. & N.) (1982) 40 A.L.R. 341 at 346; Shell's Self
Service v. Deputy Commissioner of Taxation (1989) 98 A.L.R.
165. Applying that test here, it could not be said that her
Honour's construction of the strategic plan could not have
materially affected her decision. Indeed that was not
argued by the respondents.

Accordingly, we would allow the appeal and remit the matter to the Planning and Environment Court to determine the appeal according to law on the basis of the evidence already called and such other evidence as the court allows to be called. The appellant should have its costs of the appeal.

The first respondent (Council) applied for an indemnity certificate pursuant to s. 15(1) Appeal Costs Fund Act 1973.

The relevant local authority must be a respondent to an appeal for formal purposes. It is not clear what interest, if any, the Council had in arguing the appeal before this Court. Counsel for the Council formulated its interest as upholding the interpretation which it had placed upon the strategic plan. Given the argument which it must have known would be presented by the second respondent, the Council had no justifiable reason for arguing this appeal. The application is refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 84 of 1992
Before the Court of Appeal
Mr Justice Pincus Mr Justice McPherson Mr Justice Davies
BETWEEN:

H.A. BACHRACH PTY LTD & OTHERS

Appellants

AND:

THE COUNCIL OF THE SHIRE OF CABOOLTURE

First Respondent

AND:

OSTERLEY PTY LTD

Respondent by Election

REASONS FOR JUDGMENT OF THE COURT

Delivered the 12th day of November 1992

MINUTES OF ORDER: The appeal is allowed with costs.

The matter is remitted to the Planning and Environment Court to determine the appeal according to law on the basis of the evidence already called and such other evidence as the court allows to be called.

The application by the first respondent (Council) for an indemnity certificate pursuant to s. 15(1) Appeal Costs Fund Act 1973 is refused.

CATCHWORDS:	LOCAL GOVERNMENT - ERROR OF LAW - Appeal from order of Planning and Environment Court permitting rezoning - whether court misconstrued strategic plan for Shire - whether error of law - whether such error materially affected decision
TOWN PLANNING - ERROR OF LAW - Appeal from order of Planning and Environment Court permitting rezoning - whether court misconstrued strategic plan for Shire - whether error of law - whether such error materially affected decision
ADMINISTRATIVE LAW - ERROR OF LAW - Appeal from order of Planning and Environment Court permitting rezoning - whether court misconstrued strategic plan for Shire - whether error of law - whether such error materially affected decision
Counsel:	Lyons Q.C. and Keim for Appellants Ure for First Respondent Gore Q.C. and Rackemann for Respondent by Election
Solicitors:	Phillips Fox for the Appellant King & Company for the First Respondent Minter Ellison Morris Fletcher for the Respondent by Election

Date(s) of Hearing:16 September 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 84 of 1992
BETWEEN:

H.A. BACHRACH PTY LTD. & OTHERS

Appellants

AND:

THE COUNCIL OF THE SHIRE OF CABOOLTURE

First Respondent

AND:

OSTERLEY PTY LTD

Respondent by Election

__________________________________________________

__

PINCUS JA
MCPHERSON JA

DAVIES JA

__________________________________________________

__

Reasons for Judgment of the Court delivered the

12th day of November 1992

__________________________________________________

__

THE APPEAL IS ALLOWED WITH COSTS.
THE MATTER IS REMITTED TO THE PLANNING AND
ENVIRONMENT COURT TO DETERMINE THE APPEAL
ACCORDING TO LAW ON THE BASIS OF THE EVIDENCE
ALREADY CALLED AND SUCH OTHER EVIDENCE AS THE
COURT ALLOWS TO BE CALLED.
THE APPLICATION BY THE FIRST RESPONDENT (COUNCIL)
FOR AN INDEMNITY CERTIFICATE PURSUANT TO S. 15(1)
APPEAL COSTS FUND ACT 1973 IS REFUSED.