Kamerunga Villa Pty Ltd v Council of the Shire of Mulgrave
[1994] QCA 322
•26 August 1994
IN THE COURT OF APPEAL [1994] QCA 322
SUPREME COURT OF QUEENSLAND
Appeal No. 1 of 1994
Appeal No. 2 of 1994
Before Fitzgerald P.
Pincus JA.
McPherson JA.
[Kamerunga Villa Pty. Ltd. v. Council of the Shire of Mulgrave]
BETWEEN:
KAMERUNGA VILLA PTY. LTD. Respondent
AND:
COUNCIL OF THE SHIRE OF MULGRAVE Appellant
REASONS FOR JUDGMENT - FITZGERALD P. and McPHERSON J.A.
Judgment delivered 26/08/94
These two appeals are brought from orders made in the Planning and Environment Court on 14 December 1993.
One appeal, No.1 of 1994, concerns an order made by the Planning and Environment Court allowing "on [a] limited basis" an appeal by the respondent to that Court (No.4 of 1993, Cairns Registry) from a decision of the appellant Council. Before this Court, the respondent did not dispute that its appeal to the Planning and Environment Court should have been dismissed. Accordingly, appeal No.1 of 1994 is allowed with costs to be taxed. The orders made below are set aside and, in lieu thereof, it is ordered that the respondent's appeal to the Planning and Environment Court is dismissed.
The appellant's other appeal to this Court, No.2 of 1994, can be disposed of almost as briefly.
By letter dated 23 April 1986, the appellant conditionally approved an application by the respondent for the subdivision of land at Lake Placid Road, Lake Placid. Conditions 24 and 25 provided:
"24.No stage development approval is implied by this approval. If the land is to be subdivided in stages, separate approval is required and Council reserves the right to amend these conditions or add new conditions at the time of assessment of the stage development application.
25.This approval, granted under the provisions of Chapter 52 of the Council's By-laws, shall cease and determine two (2) years from the date of this decision if these conditions and the By-Laws have not been fully complied with and a survey plan submitted for Council endorsement."
By a letter dated 18 May 1988, the appellant wrote to the respondent notifying it of the appellant's decision "that the subdivisional application ... be extended to expire on 23rd April, 1989". It is not clear that the appellant had the power to make that decision at that time, but nothing now turns on that.
On 16 January 1989, the respondent applied to the appellant to subdivide the land in two stages: see condition 24 of the approval dated 23 April 1986.
On 24 July 1989, the appellant approved the application for a two-stage development "subject to the current conditions set by Council."
The issue raised by appeal No.2 of 1994 is whether it was a condition of that approval that it "cease and determine two (2) years from the date of [that] decision." The other view is that the operation of clause 25 had ceased, at the latest, on 23 April 1989, and was no longer one of the "current conditions" as at 24 July, 1989.
There is little basis for choosing between the two contentions. On balance, I incline to the view that, at the time of its decision of 24 July 1989, the appellant knew of its extension (or purported extension) of the period for which condition 25 initially provided only to 23 April 1989, and did not intend to impose a condition limiting the future operation of its approval.
That was the decision of the Planning and Environment Court. I would accordingly dismiss appeal No. 2 of 1994, with costs to be taxed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 1 of 1994
Appeal No. 2 of 1994
Brisbane
[Kamerunga Villa Pty. Ltd. v. Council of the Shire of Mulgrave]
BETWEEN:
KAMERUNGA VILLA PTY. LTD. Respondent
AND:
COUNCIL OF THE SHIRE OF MULGRAVE Appellant
Fitzgerald P.
Pincus JA.
McPherson JA.
Judgment delivered 26/08/94
Reasons for judgment of the President and McPherson JA, Pincus JA separately. All agreeing as to the orders made.
Appeal No 1 of 1994 allowed with costs to be taxed. Orders made below set aside and in lieu thereof order that the respondent's appeal to the Planning and Environment Court is dismissed.
Appeal No 2 of 1994 dismissed with costs to be taxed.
CATCHWORDS: TOWN PLANNING - application for subdivision - additional application for stage development - approved upon "current conditions" of original application - whether time limit in original approval a current condition
Counsel:Mr. Haydon for the appellant
Mr. P. Lyons, with him Mr. Cochrane for the respondent
Solicitors:MacDonnells for the appellant
Marino and Smith for the respondent
Hearing Date: 19/08/94
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 1 of 1994.
Appeal No. 2 of 1994.
Brisbane
[Kamerunga v. Shire of Mulgrave]
BeforeFitzgerald P.
Pincus J.A.
McPherson J.A.
BETWEEN:
KAMERUNGA VILLAGE PTY LTD
Respondent
AND:
COUNCIL OF THE SHIRE OF
MULGRAVE
Appellant
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment Delivered 26/08/1994
I have read and agree with the reasons for judgment of the President and McPherson J.A.
The expression "current conditions" is perhaps capable of an interpretation such as to incorporate the provision for lapse in two years included in the approval of 23 April 1986, or perhaps that condition as purporting to have been amended on 18 May 1988.
But it does not clearly do so; the word "current" is not very appropriate to describe a condition whose effect is spent. For the appeal to succeed, it would have to be held that by "current conditions" was meant all the conditions imposed in the approval of 23 April 1986, or else those conditions as purporting to have been varied on 18 May 1988. Since the word "current" in this context conveys the idea that what is spoken of is presently in force, it appears to me that the construction put forward by the appellant should be rejected. It may well be that had the appellant specifically considered the point it would have expressly imposed either a two year or three year time limitation when it gave the new approval; but in my view the language used did not impose any time limit.
I agree with the orders proposed by the President and McPherson J.A.
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