KCY Investments (No. 2) Pty Ltd v Redland City Council and Anor
[2012] QPEC 17
•22 February 2012
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
KCY Investments (No. 2) Pty Ltd v Redland City Council & Anor [2012] QPEC 17
PARTIES:
KCY INVESTMENTS (NO. 2) PTY LTD
(Appellant)
-and-
REDLAND CITY COUNCIL
(Respondent)
-and-
FRIENDS OF STRADBROKE ISLAND INCORPORATED AND STRADBROKE ISLAND MANAGEMENT ORGANISATION INCORPORATED
(Co-Respondents)
FILE NO/S:
1740 of 2008
DIVISION:
Planning & Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court at Brisbane
DELIVERED ON:
22 February 2012
DELIVERED AT:
Townsville
HEARING DATE:
26 October 2011.
By leave, supplementary Reply and Rejoinders filed 30 October, 2011 and 02 November, 2011.
JUDGE:
Durward SC DCJ
ORDERS:
1. Appeal dismissed.
2. Development Application approved subject to further condition that the appellant take the necessary steps to free the land of the material 1994 conditions.
3. The parties have liberty to apply for an order perfecting the approval of the development application as expressed in Order 2.
4. Originating Application dismissed.
CATCHWORDS:
ENVIRONMENT & PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – CONDITIONS – where the Council imposed conditions reflecting earlier conditions of an earlier approval – whether the conditions attached to the land and bound the appellant – whether the development would contravene those conditions – whether a development offence would thereby be committed – whether proposed development able to be approved.
ENVIRONMENT & PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – INTERPRETATION & CONSTRUCTION – construction of instrument – whether conditions of earlier approval attach to the land and bind the appellant as owner and successor in title – whether earlier conditions mean that no development of any kind is permitted in the area where the land is situated.
ENVIRONMENT & PLANNING – DETERMINATION OF PRELIMINARY ISSUE – whether approval and conditions made pursuant to the Local Government (Planning and Environment) Act 1990 have continuing effect under the Sustainable Planning Act 2009.
LEGISLATION:
PLANNING SCHEME:
Local Government (Planning and Environment) Act 1990 s4.13; Integrated Planning Act 1996 ss 3.5.13, 3.5.28, 4.3.3, 6.1.23, 6.1.24, 3.5.28; Sustainable Planning Act 2009 ss 369, 580, 801 & 819.
Redland City Council Planning Scheme 2006.
CASES:
Heydon's case (1584) 76 FR 637; Mills v Meeking (1990) 169 CLR 214; Mimehaven Pty Ltd v Cairns City Council (2002) 121 LGERA 216; Genamson Holdings Pty Ltd v Caboolture Shire Council (2008) 163 LGERA 386; Cummerlong v Dalcross (2011) 279 ALR 248; Bowden v Brisbane City Council (1991) QPLR 271; Barro Group Pty Ltd v Redland Shire Council [2010] 2 Qd R 206; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; Weston Aluminium Pty Ltd v EPA (2007) 82 ALJR 74; Friends of Stradbroke Island Association Inc v Sandunes Pty Ltd & Redland Shire Council (1998) 101 LGERA 161; Reservilt Pty Ltd v Maroochy Shire Council [2002] QCA 367; Liquorland (Australia) Pty Ltd v Gold Coast City Council [2002] QCA 248; Rofail v Wells (2011) QPEC 125; Sunshine Coast Regional Council v Sugarbag Road Pty Ltd [2011] QPEC 124; Hawkins & Izzard v Permarig Pty Ltd & BCC [2001] QPELR 423; Reef Resort 1770 Pty Ltd v Miriam Shire Council [2006] QPELR 597; Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005]QPELR 318; Collector of Customs v Agfa Gaveart Limited [1995-1996] 186 CLR 389; Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334; Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works (1972) VR 781; Dorrestijn v South Australia Planning Commission (1984) 59 ALJR 105.
COUNSEL:
D R Gore QC and M K Conrick for the Appellant
M F Johnston for the Respondent
S P Fynes-Clinton for the Co-Respondents
SOLICITORS:
Praeger Ellem Solicitors for the Appellant
Norton Rose Australia for the Respondent
Carew Lawyers for the Co-Respondent
The appellant has appealed a decision by the Redland City Council refusing a development application made on 05 March 2007, for a material change of use for the construction of a dwelling house ("the proposed development") on land situated at 7 Samarinda Drive, Point Lookout, Stradbroke Island in the State of Queensland, described as lot 4 on Plan SP 120301 (an area of 4,119m2), County of Stanley, Parish of Stradbroke (“the land”).
The proposed development is code assessable and is a consistent use in the Conservation Zone under the Redland City Council Planning Scheme 2006 (“the planning scheme”).
The appeal is about whether 1994 development conditions that required protection and retention of vegetation and dunal topography on the land, as previously constituted, continued to attach to the land as presently constituted and bind the appellants as owners of the land.
The history of the reconfiguration of the land
The original land had an area of 1.4693ha. The land had formerly been part of lots 1 and 2 on Registered Plan 154330. As at 21 February 1994, lots 1 and 2 were included in the Tourist Business and Residential Zone under the 1988 Town Plan.
Under the 1988 Town Plan multiple dwelling units were a permissible use. On 16 February 1994, a Consent Order was made by the Court pursuant to the Local Government (Planning and Environment) Act 1990 approving the development of 59 units on part of lots 1 and 2, subject to conditions which included requirements for protection and retention of vegetation in the environmentally sensitive south-east area of the development site (“the protected area”).
The Conditions of Approval for the development in Town Planning Consent Permit C2307, dated 07 April 1994, included a requirement for agreement of proposed measures to protect existing vegetation and trees; and to protect and retain dunal topography and existing vegetation. They relevantly provided as follows:
"30. In association with Condition 29 the following additional details shall be submitted, agreed in writing by the Manager, Planning and Environmental Services and implemented:-
…
xiii) Full details of proposed measures to protect existing vegetation and trees. In association with the construction of the first eighteen (18) units, the large Norfolk Pines shall be adequately protected during the whole period of site preparation and construction.
NB. None of the existing trees on the site or adjoining road reserves shall at any stage be felled, lopped, topped or have their roots cut without the prior written consent of Council. The said trees shall be adequately protected during the whole period of site preparation and construction.
31. The dunal topography and existing vegetation indicated on Plan No. SK9306 HAB93A shall be protected and retained. In association with the above, a Management Plan shall be submitted for this environmentally sensitive area designated on Plan SK9306 HAB93A (nominated vegetation retention area). The following details shall be indicated:
i) A revegetation and stabilization programme for the area. Advanced indigenous species should be utilized.
ii) Hedge treatment details of the transition zone between the area of vegetation retention and proposed unit blocks designated as D, E and F on Plan No. SK9411.
iii) Access to the vegetated area shall be restricted to the provision of an elevated low impact timber boardwalk. The boardwalk shall be designed to minimise impact on the existing vegetation and dunal structure.
iv) Proposed methods of restricting pedestrian access to the vegetated area away from the proposed boardwalk.
The Management Plan shall be submitted at the time of Building Application and shall require the approval of the Director, Environment Planning and Development and Beach Protection Authority."
By letter dated 19 May 1994, the Redland Shire Council advised an approval of an application to subdivide the original site into three Tourist Business Residential lots subject to conditions, including:
"1. The existing vegetation and associated dunal topography located within the south-eastern corner of proposed Lot 2 indicated on Plan Ref SL9306 HAV93A shall be protected and retained with no further development being permitted within this area.”
By letter dated 21 June 1994 the Redland Shire Council advised that the Consent Order dated 16 February 1994 had issued with approval for the construction of multiple dwellings of 59 units, subject to conditions. Specific reference was made to Conditions 2.38 and 2.39 with respect to the "environmentally sensitive" part of the site.
The land subsequently became part of lot 3 (the largest lot) on RP 850885 pursuant to a sub-division approval dated 20 July 1994 (an area of 8,479m2).
On 08 February 1996, the Point Lookout Development Control Plan was incorporated into the 1988 Town Plan and the land was designated as a Landscape Preservation Precinct, which permitted buildings and structures only for recreational, public utility or special use.
On 06 May 1998, the Court amended its 1994 order by modifying the plans of development and approving it subject to amended conditions. The amendments did not directly affect the material conditions (but the layout plans referred to in the amended condition 1 were apparently consistent with them). They were retained and renumbered 31, 37, 38 and 39. Two of the conditions of the February 1994 approval (2.31 and 2.38) were incorporated into the modified approval. The amendments to Consent Permit C.2307 were contained in Town Planning Consent Permit CT 230700, issued by the Council on 26 May 1998. However, whilst part of the factual matrix of the case these amendments are not relevant to the determination of the issues on this appeal.
By this time it seems that 30 units (18 on lot 1 and 12 on lot 2) had been completed to the east of the protected area.
Lot 4 was created pursuant to a second subdivision approval dated 04 October 1999, (an area of 8,479m2). The subdivision in Plan SP120301 created two lots, lots 4 and 5. The land is now part of lot 4 (an area of 4,119m2) which largely comprises the protected area. Lot 5 (an area of 4,359m2), which contains 41 units known as the Whale Watch resort, is west of the protected area.
The site for the proposed development on the new lot 4 is located in the protected area: that is, the area marked “existing vegetation to be retained” on Plan SK 9306 and Plan SK 9306 HAB93A.
The ‘area’ in which lot 4 is situated is within the blue lines and the vegetated portion of the aerial photograph depicted above.
In Friends of Stradbroke Island Association Inc v Sandunes Pty Ltd and Redland Shire Council (1998) 101 LGERA 161, an appeal at an earlier stage of the history of the land, the issue concerned Town Planning Consent Permit C2307 and whether it should be construed as a single indivisible permit or as two distinct permits contained within or conferred by the one document, in the context of an allegation by the applicants for leave to appeal that there were two distinct permits in that one of them, relating to stage 2 of the proposed development on the land, the subject of this appeal, had lapsed because the use or building construction had not commenced within four years of the date of the permit. The Court held that the development permit related to the "site" and was "one permission for a development of land subject of the permit in two stages".
The 1994 conditions
There are four relevant conditions in the 16 February 1994 Consent Order. So far as is material, they provide as follows:
“2.31 The dunal topography and existing vegetation indicated on Plan No SK 9306 HAB93A shall be protected and retained.
(i) A revegetation and stabilization programme for the area…
(ii) Edge treatment details of the transition zone between the area of vegetation retention and proposed unit blocks ….
(iii) Access to the vegetated area shall be restricted to the provision of an elevated low impact timber boardwalk. The boardwalk shall be designed to minimize impact on the existing vegetation and dunal structure.
(iv) Proposed methods of restricting pedestrian access to the vegetated area away from the proposed boardwalk.
The management Plan shall be submitted at the time of Building Application….
2.37 All parties recognize the approval of the development is based on the premise of maximising development in the western portion of site to provide protection/retention of vegetation in middle portion of site as depicted on Plan No. SK 9306 HAB93A.
2.38 All parties recognise the environmental sensitivity of the existing dune system and associated vegetation indicated for retention on approved Plan Ref. SK9306 HAB93A. The area shall remain undeveloped with the implementation of a re-vegetation and stabilization program. It is further acknowledged that this recognition shall be incorporated into the proposed Development Control Plan currently being prepared for the Point Lookout Township.
2.39 It is acknowledged that Council would favour the proposed boundary realignment as indicated on Plan Ref. (Plan A Drawing No. 93075-L1) on the basis that it is recognized and agreed that the existing vegetation and associated dunal topography located within the south eastern corner of the proposed allotment and indicated on Plan Ref. SK9306 HAB93A shall be protected and retained with no further development being permitted within this area. It is further acknowledged that this requirement shall be imposed as a condition of any subsequent subdivision application for the creation of the proposed parcel.
Any future application for Town Planning Consent for the development of the balance area of the proposed allotment indicated as Lot 2 on Plan A Drawing No. 93705-L1 shall ensure that due regard is given to the protection of viewing corridors from the proposed dwelling units to the north.”
The appeal
The respondent conceded in the appeal process that the proposed development, with the proposed conditions, can be conditioned to comply with the applicable codes and ought to be approved with those conditions.
The land is not subject to any specific relevant conditions. The issue in the appeal is whether the unaltered 1994 conditions (specifically 2.31 and 2.38) that were incorporated into the modified 1998 approval continue to apply to the land and whether the proposed development contravenes those conditions: that is, whether the proposed development is precluded by reason of a continued application of the material conditions; and the proposed conditions of approval of the development (3 and C. (a)).
The conditions in dispute for the appeal are limited to Conditions 3 and C. (a) of the proposed conditions of approval of the proposed development as amended by way of ‘minor change’, namely:
"Change to Existing Approval
3. Do not start the development until such time as a request for a permissible change, pursuant to S 369 of the Sustainable Planning Act 2009, has been lodged to, and approved by, the relevant responsible entity, which amends or deletes all conditions of the Planning and Environment Court Order given in respect of Appeal No. 313 of 1993 dated 16 February 1994 (and Consent Permit C2307 as relevant), which otherwise prevent the use of the site for the development the subject of this development approval.
…
C. ADDITIONAL PERMITS/APPROVALS REQUIRED
a) Request a Permissible Change, pursuant to S 369 of the Sustainable Planning Act 2009, to the Planning and Environment Court Order for Appeal No.…313 of 1993 dated 16 February 1994 (and Consent Permit C2307 as relevant)."
The co-respondents (interveners in the appeal who were parties to the proceeding in 1994 that was resolved by the 1994 consent order) were joined by leave as parties to this appeal on 19 October 2011. The Court also ordered that an originating application made by them be heard and determined with the appeal. The issues raised by the originating application are the same as raised by the respondent’s proposed condition ‘3’.
The Originating Application of the co-respondent seeks orders and declarations to the effect that the land may not be lawfully used for a dwelling house given the existence of conditions of an earlier planning consent (“the 1994 conditions”).
Legislation
The revelation statutory provisions are those that deal with continuing approvals and the binding effect of conditions attached to those approvals, in the Integrated Planning Act 1996 ("IPA") and the Sustainable Planning Act 2009 ("SPA").
The appeal was commenced under IPA. It must be heard and determined under IPA as if SPA had not commenced: s 819 SPA.
Statutory Provisions
The relevant statutory provisions for the purposes of this matter are contained in the Local Government (Planning and Environment Act) 1990 (to which I have briefly referred elsewhere), the Integrated Planning Act 1996 and the Sustainable Planning Act 2009.
Integrated Planning Act 1996
"3.5.13 Decision if Application requires code assessment
…
(2) The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.
3.5.28 Approval attaches to land
(1) The development approval attaches to the land, the subject of the application, and binds the owner, the owner's successors entitle and any occupier of the land.
(2) To remove any doubt, it is declared that subsection (1) applies even if later development (including reconfiguring a lot) is approved for the land (or the land has reconfigured)."
"4.3.3 Compliance with development approval
(1) A person must not contravene a development approval, including any condition in the approval.
…
(4) In subsection (1) development approval includes an approval under s 4.4 (5) or 4.7(5) of the repealed Act."
6.1.23 Continuing effect of approvals issued before commencement
(1) This section applies to -
(a) …(continuing approvals) issued … in relation to an application mentioned in s 4.1(5) of the repealed Act and enforce immediately before the commencement of this section; and
(b) Permits (continuing approvals) issued under s 4.13(12) of the repealed Act, including modifications of the permits under s 4.15 of the repealed Act, enforce immediately before the commencement of this section; and
(c) approvals (continuing approvals) including modifications of the approvals under s 4.15 of the repealed Act, enforce immediately before the commencement of this section and made in relation to applications made under the following sections of the repealed Act …; and
(d) approvals (continuing approvals), by whatever name called, given under a former planning scheme but not included in paragraphs (a) to (c) enforce immediately before the commencement of this section; and
……….
(2) Despite the repeal of the repealed Act each continuing approval and any conditions attached to a continuing approval have effect as if the approval and the conditions were a development approval in the form of a preliminary approval or development permit as the case may be.
…
6.1.24 Certain conditions attached to land
(1) If a local government has set conditions in relation to a continuing approval, the conditions attached to the land on and from the commencement of this section and are binding on successors and title.
…
(3) Subsections (1) and (2) apply, despite -
(a) A later amendment of the transitional planning scheme; and
(b) The later introduction or amendment of an IPA planning scheme.
(4) In this section -
former planning scheme includes any planning scheme made under the repealed Act or an Act repealed by the repealed Act."
Sustainable Planning Act 2009
"245 Development approval attaches to land
(1) A development approval -
(a) attaches to the land the subject of the application to which the approval relates; and
(b) binds the owner, the owner's successors and title and any occupier of the land.
(2) To remove any doubt, it is declared that subsection (1) applies even if later development, including reconfiguring a lot, is approved for the land or the land as reconfigured.
369(1)Request to change development approval
If a person wants to make a permissible change to a development approval, the person must by written notice ask the following entity (the responsible entity) stated for the change of approval to make the change -
….
(d) if the approval was given by the Court - the Court.
580Compliance with development approval
(1) A person must not contravene a development approval, including any condition in the approval.
….
801 Continuing effect of development approvals
(1) A development approval under repealed IPA that is in force immediately before the commencement continues as a development approval under this Act.
(2) For this Act, a development approval continued in force under subsection (1) is taken to have had effect on the day it had effect under the repealed IPA.
819Appeals to Court - Generally
(1) Subsection (2) applies if -
(a) a person has appealed to the Court under repealed IPA … before the commencement; and
(b) the appeal has not been decided before the commencement.
(2) The Court must hear, or continue to hear, and decide the appeal under repealed IPA or … as if this Act had not commenced."
850Conditions attaching to land
(1) This section applies to a condition mentioned in repealed IPA, s 6.1.24(2) that, under that section, attaches to land is binding on successors and title.
(2) On and from the commencement, the condition remains attached to the land and is binding on successors and title."
Development in the Conservation Zone is assessed against criteria in a Table of Assessment for Material Change of Use of Premises. The Table relevantly provides that a dwelling house is Code Assessable Development. The applicable code is the Conservation Zone Code.
Pleadings
Appellant
The appellant’s pleading, so far as may be relevant, referred to the Order of the Court of 06 May 1998 and continued as follows:
"32. … the requirement to protect and retain vegetation did not impose a requirement that there be no development of any kind on the land, rather that development maximise the protection and retention of vegetation in such manner as may be achieved by future town planning controls.
33. On a date to be determined following disclosure, Redland Shire Council consented to the reconfiguration of Lots 1 and 2 on RP 154330 by registration of Registered Plan 850885 and no condition was attached to the reconfiguration limiting the development that could occur on the land beyond such limits as the planning scheme created.
34. On a date to be determined following disclosure, Redland Shire Council consented to the reconfiguration of Lot 3 on RP 850885 by registration of Survey Plan 120301 and no condition was attached to the reconfiguration limiting the development that could occur on the land beyond such limits as the planning scheme created.
35. On 1 October 1999, Lot 3 on RP 850885 was cancelled by registration of SP 120301. The SP 120301 created the land and Lot 5 on SP 120301.
36. SP120301 created the land and Lot 4 on SP 120301.
37. No condition was attached to the reconfiguration limiting the development that could occur on the land beyond such limits as the planning scheme created."
Respondent
The respondent’s pleading, so far as is relevant, provided as follows:
11. The respondent admits the allegations contained in paragraphs 34, 35 and 36 of the Appellant's Grounds, but says further that:
….
(2) For the reasons set out in paragraph 15(5) below, the conditions in Town Planning Consent Permit C2307 and the conditions imposed in the First Subdivision continue to attach to the subject land and bind the appellant as the owner of the Subject Land.
…..
15. As to paragraph 9 of the Appellant's Grounds, the respondent:
…..
(5) Says that:
(a) Town Planning Consent Permit C2307 was issued by the respondent on 7 April 1994 ('consent permit') reflecting the terms of the Order;
(b) the Consent Permit applied to the Original Parcel; the Consent Permit was granted under the Local Government (Planning & Environment) Act 1990;
…
(d) the Consent Permit and the conditions contained therein, is a continuing approval pursuant to section 6.1.23 of the IPA and sections 801 and 850 of the SPA;
(e) pursuant to section 3.5.28 of the IPA, the consent permit, and the conditions contained therein, attaches to the subject land and binds the appellant as the owner of the subject land, despite the first subdivision and the second subdivision;
(f) if the appellant's proposed development is approved without conditions 3 and C(a) then acting on that approval will constitute a development offence by way of the contravention of the conditions of the Consent Permit;
(g) proposed conditions 3 and C(a) are relevant to, and reasonably required in respect of the use of the Subject Land as a consequence of the appellant's proposed development."
Submissions
The appellant submitted that the 1994 conditions no longer apply and hence the proposed development does not contravene any condition. The 1994 conditions "did not impose a requirement that there be no development of any kind on the land."
Alternatively, the appellant submitted that the proposed development, being code assessable under the planning scheme, is not affected by the 1994 conditions, which relate to different development, different land and a different planning scheme.
The appellant submitted that the two material conditions - 2.31 and 2.38 - cannot be interpreted literally; and the proposed management measures would not be contravened by the proposed development because it was a lawful code assessable development, it complied with the planning scheme and - subject to other non-contentious conditions - "respects the degree of environmental protection intended by the 1994 conditions."
Alternatively, the appellant submitted that the material conditions did not apply to the proposed development because they related to a different development - multiple unit development.
Mr Gore QC, inter alia, referred to the supremacy of “proprietary rights” of landowners, in what he referred to as a 'tension' between sections 3.5.28 and 3.5.13 of IPA and the decision of the High Court in Cummerlong v Dalcross (2011) 279 ALR 248; and the use of "speculative hypotheses" to test the validity of a construction of an instrument. He submitted that such "hypotheses" were contrary to a proper construction of s 3.5.28 and the binding effect of conditions, even if later development is approved for the land.
The respondent submitted that the proper construction of IPA and the proposed conditions did not interfere with any relevant “proprietary right” and that the requirement for owner consent to a development application satisfied any question about “proprietary rights”: that is, an owner's consent admits of the imposition of restrictions on “proprietary rights” arising from a planning scheme application.
The respondent submitted that the 1994 conditions created obligations that continue, bind the appellant as owner of lot 4, required retention of vegetation and no development in the protected area. The respondent relies on the literal words contained in 2.38, namely the reference to "the area" as distinct from any reference to "lot"; the proposed development is within "the area"; and the 1994 conditions do not relate to a particular development, such as multiple dwelling units. The conditions per se require the area to remain undeveloped. Hence it submitted that the 1994 conditions remain attached to the new lot 4 and bind the appellant.
The respondent submitted that a condition be imposed on the approval of the proposed development that required the appellant to take the necessary steps to free the land of the material 1994 conditions. The submission reflects it’s assertion that whilst the proposed development complies with applicable codes, the carrying out of the proposed development, in contravention of the 1994 conditions, would amount to a development offence: IPA s 4.3.3 and SPA s 580.
The co-respondents supported the respondent's submissions. Further, they submitted that the conditions were not about any particular development but about development generally and that the conditions created rights, in respect of the parties to the 1994 conditions, as well as obligations and they could not be taken away merely by a reconfiguration of lot.
The co-respondent's submission was that the 1994 conditions had continuing effect because the approval given for the whole parcel of land has been exercised by development on part of the original Lots 1 and 2 (to the East and West of the protected area); and that it would only have been in the circumstance of no exercise of the approval and hence no development on the original Lots 1 and 2, that there would be no obligation to comply with the 1994 conditions. In any event, the approval would have lapsed after four years, or have been overtaken by a later approval or all or part of the same land (the original use not having been commenced by development), or by cancellation by the owner. None of that happened.
The co-respondents submitted that no development permit can lawfully issue because the proposed development cannot lawfully be started while the 1994 conditions continue.
The co-respondents and the respondent differed as to the orders that should be made in the appeal. The co-respondents submitted that the development permit should be refused on the ground that it would otherwise authorise development that is unlawful. They sought a dismissal of the appeal and the making of the declarations in its separate originating application proceeding. The respondent submitted that a condition (as described above) should be imposed on the development approval.
Discussion
The construction point
Mr Gore QC contended that an enduring approval must be construed liberally: that is, as he described that expression, ‘sensibly rather than legalistically’; that words should be construed in context and upon the language of the "instrument viewed as a whole"; and that if there is any ambiguity, the approval is to be interpreted in favour of the person entitled to act upon it.
There is a plethora of case authority as to the proper approach to construction of an instrument. In Weston Aluminium Pty Ltd v EPA (2000) 82 ALJR 74 the Court wrote, in the planning context, that “development consents are to be liberally construed. The issue was "what use of the land did the development consent permit?" The development permit was for a "can reclamation plant" and "aluminium re-smelting facility". The Court held that even on a liberal construction, those consents did not authorise the processing of imported dross.
The approach to the construction of an instrument is analogous the construction of a statute. Various approaches to statutory construction have held favour in the past. The literal rule requires one to ascertain the intent of Parliament in the statute by determining the ordinary and natural meaning of the words in the context of the statute as a whole. If the construction leads to, for example, an absurd or inconsistent or mistaken result in the context of the statute, then the construction can be varied so as to avoid that result.
The purposive approach had its origins in Heydon's case (1584) 76 FR 637 at 638. When the literal approach produced ambiguity or inconsistency, that is it created a doubt, it required a determination of the purpose of the Act or provision to be made, in the context of the whole statute - including the legislative and amendment history - and the adoption of an interpretation that was consistent with that purpose.
The High Court in Mills v Meeking (1990) 169 CLR 214 wrote that the preferable approach to statutory construction was to construe the Act or provision in a way that promoted the purpose of an Act. That approach might require a determination as to whether more than one possible construction of the provision can be made and whether more than one was open. Dawson J at page 235 wrote:
"The approach …(required by s 15AA and its State equivalents) … needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction (…) or purpose."
By way of example, the phrase "in accordance with", or variations of it, have been held by this Court to reflect an allowance for deviation from drawings or plans, in the context of allowing some latitude that reflected the practical difficulties that might accompany the particular type of works being undertaken. Hawkins & Izzard v Permarig Pty Ltd & Brisbane City Council (No. 3) [2001] QPELR 423 and Reef Resorts 1770 Pty Ltd v Miriam Shire Council [2006] QPELR 597. A liberal approach to construction in that context is simply a matter of common sense.
See, however, by way of analogy Barro Group Pty Ltd v Redland Shire Council [2010] 2 Qd R 206 per Keane JA at [64] - [65], in respect of the discretion to excuse non-compliance with statutory provisions.
Of course, the responsibility to ensure approvals of development are clear and unambiguous rests with the approving authority, generally speaking the local authority: Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318, where Dodds DCJ in this Court referred to that principle and cited authorities in support of it. With respect to the construction of an instrument, see also Collector of Customs v Agfa-Gevaert Limited [1995]-[1996] 186 CLR 389; Marina Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334; and Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works (1972) VR 781.
Where a condition is imposed so as to restrict the operation of a development permit it should be expressed clearly. A construction of the condition should adopt an approach which makes sense and not a strictly legalistic approach, provided the result is not absurd in the sense that it is unworkable, impracticable, futile or artificial, for example. It should also acknowledge the principle that statutory provisions design to protect and preserve existing rights should be as liberally construed as the language in its context allows: Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105, per Mason ACJ, Deane & Dawson JJ at 108.
The appellant relied on Liquorland (Australia) Pty Ltd v Gold Coast City Council [2002] QCA 248, which involved issues of the continuation of an earlier development permit. The earlier development permit in that case was for a quite different development (a hotel) and it did not continue to have effect in respect of a development approval for the conduct of gaming machines in association with an approved hotel. An approval "for the development" meant "for the same development", not "with respect to the land the subject of the development", as the respondent Council had argued. I do not consider that this case assists the appellant in the particular circumstances of this appeal.
In this case it seems to me that the proper approach is to determine the ordinary and natural meaning of the words in the relevant provisions in IPA, in the context of the Act as a whole including the purpose of the Act. Insofar as the words in the 1994 conditions are concerned, I consider them to be unequivocal and clear in their meaning. They should be read literally and are capable of being read that way. There is no ambiguity or inconsistency. The words mean what they say. I cannot conceive, for example, a difficulty in construing a clear meaning from expressions such as “shall be protected and retained” or “no further development being permitted in within this area”.
The continued attachment of the 1994 conditions
The appellant submitted that the scope of the proposed conditions was confined to compliance with the codes. I do not agree. In this case the 1994 conditions go further, attach to the land and bind the appellant as the owner of Lot 4: s.5.28 IPA.
Mr Gore QC referred to Cummerlong v Dalcross (2011) 279 ALR 248, where there was a dispute between neighbouring land owners, one of whom - the respondent - wanted to extend a private hospital onto the subject land which had a common boundary with the land of the other - the appellant. The subject land was encumbered by a statutory restrictive covenant (which benefited the appellant) and would have prevented its use by the respondent for a private hospital. The restrictive covenant was a proprietary right - which the relevant NSW statutory affected adversely - and could not be suspended in the circumstances of that case so as to enable the hospital development to be extended onto the subject land.
His submission was that the decision in Cummerlong, in which the principle in Marshall v Department of Transport (2001) 205 CLR 603 was applied in the context of there being a new planning scheme, was relevant on this appeal. However, I do not consider the case to be of any relevance. The consent of the owner of the land to the development application in this appeal distinguishes it from the NSW case. That consent, by implication at least, is equally consent to the imposition of conditions, which may restrict the owner’s rights in one or more ways. Cummerlong was concerned with the proper construction of s 28 of the Environment, Planning & Assessment Act (NSW) and the failure to follow a prescribed and express approval process in respect of restrictive covenants on the subject land. The distinguishing feature here is that the appellant is bound by the provisions of IPA with respect to the 1994 conditions. Cummerlong is a quite different case in my view. See also: Bowden v Brisbane City Council (1991) QPLR 271.
Mr Gore QC relied on Mimehaven Pty Ltd v Cairns City Council (2002) 121 LGERA 216 and Genamson Holdings Pty Ltd v Caboolture Shire Council (2008) 163 LGERA 386 for the proposition, in effect, that if there is no exercise of rights under a conditional approval granted under an earlier planning scheme, the latter does not preclude a proposed development that is governed by a current planning scheme.
In Genamson the applicant had proposed a supermarket development on land zoned Special Rural under a 1988 planning scheme. Such a development was a prohibited use. In 1993 the land was rezoned which then permitted such a development and it was approved subject to conditions, including a condition that the development was to be "generally and in accordance with" the existing layout. The development in fact was materially different.
The applicant contended that the development was self-assessable and did not require a development permit. The respondent council contended that the development was impact assessable. It argued, inter alia, that the condition under the 1993 approval attached to the land and bound successors in title including the applicant.
In this Court it was held that the applicant was obliged to comply with the condition because it attached to the land. The applicant was unsuccessful on appeal. Keane JA wrote (at paragraph 16):
"The applicant's argument seeks to take the benefit of the 1993 rezoning without the burden of the conditions to which that rezoning approval was subject. The applicant would have it that, by some legal miracle, it now enjoys more extensive development rights in respect of the land than were at any stage attached to the land under the superseded planning scheme. In this respect at least, the age of miracles has passed. Condition 2(1), which confined the entitlement created by the rezoning to develop the land for 'shops' to the plan referred to therein, was attached to the land by virtue of s 4.4(13) and s 4.5(12) of the P & E Act, and s 6.1.24 of the IPA. To argue otherwise is to seek to deny the plain effect of these legislative provisions."
In Mimehaven a development was approved subject to a condition that the "applicant shall at all times during development of the subject land carry out the development and construction of any buildings thereon in accordance with the facts and circumstances of the application as modified by these conditions". A new planning scheme came into force in 1996. The previous approval was specifically in relation to multiple dwelling units. A successor in title to the land sought to develop town houses on the land. In this Court it was held that the prior rezoning approval had been rendered ineffective, along with the conditions of the approval, by the introduction of the new planning scheme. The proposed development was not an exercise of rights accruing from the superseded planning scheme.
It was common ground that the development that was proceeded with was not the development in respect of which rezoning approval had been given.
On appeal the applicant contended that the earlier conditions continue to attach to the land and therefore bind the respondent council. Phillipiades JA wrote (at paragraph 22):
"In my view, that submission reveals a fundamental difficulty with the applicant's case. That is that, even assuming as contended by the applicant that the 1994 conditions continue to attach to the land and therefore to bind the respondent, those conditions, by their terms, only apply to a particular development, that is, a development 'in accordance with the facts and circumstances of the [1994] application'. So much is apparent from condition 1 …".
My discussion of Hawkins & Izzard (supra) refers to the expressions such as ‘in accordance with’).
The judgment in Mimehaven was explained by Keane JA in (at paragraph 21) in the following terms:
"… Each member of the Court in Mimehaven v Cairns City Council accepted that the primary judge in that case was correct in taking the view that, if the development in question was authorised only by the 1994 rezoning approval (pursuant to s 3.4(3) of the P & E Act), then the conditions of that approval would have applied to restrict the proposed development. This Court's decision in Mimehaven v Cairns City Council should not be understood as supporting the proposition that the operation of s 4.4(13) and s 4.1(12) of the P & E Act and s 6.1.24 of the IPA can be defeated by pursuing a development which is contrary to the conditions attaching to the land. The point of the decision in Mimehaven v Cairns City Council is that the entitlement to pursue the proposed development was established by a charter of rights which was in no way confined by an earlier superseded charter of rights and obligations relating to a different development."
Both cases primarily involved rezoning. That is not the case in this appeal. There is nothing in this appeal that is analogous to a charter of rights. I do not consider that either case assists me in determining this appeal.
The 1994 conditions were made pursuant to s 4.13 of the Local Government (Planning and Environment) Act 1990. By virtue of that section they "attached to the land" (the original Lots 1 and 2 and the new lot 4) and were "binding on successors in title." It is common ground that none of the exceptions provided in the section are applicable.
Section 6.1.23(2) IPA provided that despite the repeal (of the Local Government (Planning and Environment) Act 1990), each continuing approval and any conditions attached to a continuing approval have effect as if the approval and the conditions were a development approval.
The 1994 approval became a "continuing approval" and became a "development approval" for the purposes of IPA: s 6.1.23(1).
The status of a ‘development approval’ and the continuing nature of the approval is confirmed by s 6.1.24 IPA which provided that local government conditions "attach to the land" and are "binding on successors and title". That status continues despite a later amendment of the transitional planning scheme or the later introduction or amendment of an IPA planning scheme. Hence the earlier approval became a ‘continuing approval’ with ‘continuing conditions’.
Further and by virtue of s 3.5.28 IPA the development approval (which by schedule 10 of IPA includes conditions attached to an approval) "attaches to the land" and "binds the owner, the owners' successor in title and any occupier of the land", "even if later development (including reconfiguring a lot) is approved for the land (or the land as reconfigured)."
The completion of the unit development subject to the 1994 approval also has the effect that the 1994 conditions remain in force and effect and are binding on the owner and occupiers of the land: SPA s 245.
Finally, a development proposal that was in force immediately before the commencement of SPA continues as a development approval: s 801(1) SPA. A condition referred to in s 6.1.24(2) of IPA remains "attached to the land" and "is binding on successors in title": cf Rofail v Wells [2011] QPEC 125; and see Sunshine Coast Regional Council v Sugar Bag Road Pty Ltd [2011] QPEC 124.
In Rofail v Wells [2011] QPEC 125, a case about whether completed operational works under a development approval have any continuing operation, particularly after subsequent sale following subdivision registration, Judge Dorney QC wrote at [25]:
"…where, as here, the relevant subdivision operational works and conditions attaching to them had been completed prior to the respondent's "development", it is unlikely, in the absence of a very clear legislative provision, that the development approval should be interpreted to have continuing effects. That is, even if the "new development" has somehow "related" to such completed operational works, the mere fact of relationship does not engage s 245 and thence the relevant contravention provision. It is helpful in resolving ambiguity or obscurity that the concept of "development", introduced in the IPA and carried through to the SPA, has been the subject of an Explanatory Note,: see s 14B(1)(a) and 14(B)(3)(e) of the Acts Interpretation Act 1954.
However, Rofail dealt with circumstances quite different from those in this appeal and whilst it was contended that it had application I do not consider that it is on point in the issues in this appeal
There is also a connection between the appellant and the new Lot 4, and the developer of the multi-dwelling units ("Sandunes") and the former Lot 3: namely, the director and secretary of both corporations, a Mr Chee. The reconfiguration of a Lot and the transfer of ownership of the land cannot, in my view, defeat or avoid the 1994 conditions. There is in my view some merit in the submission of the co-respondent that the appellant is endeavouring to defeat the continuing application of the 1994 conditions by the means of a ‘circuitous route’.
In House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498, the appellant sought to rely on a consent given some 46 years earlier for a use of a "church and office." A Presbyterian church had used a building on the land for some 40 years and then it was used as a Muslim mosque for about 5 years. The issue was whether the earlier consent continued and covered the use as a Muslim mosque. The Court of Appeal of New South Wales held that it did: ‘a consent’ operated "in rem" and was not concerned with the identity of the user. It was ‘a consent’ “to the world at large in relation to the land which is its subject": Mason P at paragraphs 22 to 24 wrote the following:
"22. Planning law 'is concerned with the use of land - not with the identity of the user': per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82.
23. Emphasis upon the use as distinct from the person using the land reminds that a consent operates in rem. In an oft-cited dictum, Else-Mitchell J described a development consent as 'not personal to the applicant but enur[ing] for the benefit of subsequent owners and occupiers, and in some respects … equivalent to a document of title': '[case citations omitted]. Stephen J described a consent as 'essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it make lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor'.
24. Cripps J's statement that planning law is concerned with the use of the land, not with the identity of the user also focuses attention upon the functions of environmental planning instruments and consents. They are concerned with physical use, environmental impact and amenity."
As I have observed, the appellant contended in its pleading that the 1994 conditions "did not impose a requirement that there be no development of any kind on the land." That contention is contrary to what I consider is clearly and unequivocally expressed in the 1994 conditions: that is, that the "area" marked as "existing vegetation to be retained" on plan SK9306 is to "remain undeveloped"; and the dunal topography and vegetation in the "area" marked as "existing vegetation to be retained" on plan SK9306 HAV93A is to be "protected and retained."
The site of the proposed development and the building footprint is clearly within the "area" to remain undeveloped. The proposed development thus contravenes the 1994 conditions.
There is no tension between the provisions of IPA referred to by Mr Gore QC. Section 3.5.13 is given effect by the approval of the proposed development, but the appellant is bound by the 1994 conditions pursuant to s 3.5.28. The sections are not at odds one with the other. They are each directed to matters that do not give rise to any conflict, on any reasonable – literal or purposive - construction of them. The respondent's proposed conditions satisfy s 3.5.13 but have the effect of ensuring the appellant is not committing a development offence and provides an opportunity for the appellant to seek to free itself from the continuing application of the 1994 conditions.
The co-respondent's answer to the appellant's "hypothetical testing" of the construction of an instrument was that it was misconceived. I agree. It is of little assistance to the court to deal in hypothetical speculation. A hypothetical "rezoning" argument is irrelevant and unhelpful. This was not ever a rezoning case.
Conclusion
The Court in Reservilt Pty Ltd v Maroochy Shire Council [2002] QCA 367 considered the assessment process and the clear statutory requirement that the assessment manager must approve the application unless it is satisfied that compliance with the code could not be achieved by imposing conditions. In my view, that is what would have ordinarily been done in this appeal, save for the continued attachment of the 1994 conditions.
If the appeal was allowed and conditions 3 and C (a) were not applied to the development approval, I consider that the appellant would commit a development offence if it commenced the development, by contravention of the conditions of the earlier approval. I agree with the reasoning submitted by the respondent in that respect.
The resolution of this appeal contended for by the co-respondent might eventually be the final outcome, upon further proceedings, of the appellant’s application. However, it is premature in my view in the circumstances of this case.
I consider that the outcome contended for by the respondent is more appropriate and sensible even though it means that there may be at this point no finalisation of this litigation. The development application should be approved subject to the appellant taking the necessary steps to free the land of the conditions of the earlier approval. This approach follows the helpful and relevant discussion by Keane JA in Genamson, at [26] – [27].
The appellant took issue in the appeal only with the conditions relating to the earlier approval, namely conditions 3 and C (a). Unless and until the conditions of the earlier approval are disposed of – if that be the case – they continue to attach to the land and the appellant is bound by them. It follows that the appeal should be dismissed.
Orders
1. Appeal dismissed.
2. Development Application approved subject to further condition that the appellant take the necessary steps to free the land of the material 1994 conditions.
3. The parties have liberty to apply for an order perfecting the approval of the development application as expressed in Order 2.
4. Originating Application dismissed.
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