Kettering Pty Ltd v Noosa Shire Council
[2006] QPEC 24
•23 March 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Kettering Pty Ltd v Noosa Shire Council [2006] QPEC 024
PARTIES:
KETTERING PTY LTD
(ACN 010 014 150)Appellant
NOOSA SHIRE COUNCIL
Respondent
FILE NO/S:
Appeal No 176 of 1995
DIVISION:
Appellate
PROCEEDING:
Application for directions for the conduct of a preliminary issue
ORIGINATING COURT:
Brisbane
DELIVERED ON:
23 March 2006
DELIVERED AT:
Brisbane
HEARING DATE:
17 March 2006
JUDGE:
Robin DCJ
ORDER:
Further and better particulars of Appellant’s Points of Claim ordered
CATCHWORDS:
Local Government (Planning and Environment) Act1990 s3.5(8) – appeal about compensation for injurious affection of land by commencement of the Noosa Hill Development Control Plan – order made for determination of preliminary issue as to the “highest and best use” before and after – whether further and better particulars of the appellant’s points of claim delivered under that order should be produced – Uniform Civil Procedure Rules r149, r157 and r161(4)
COUNSEL:
Mr M Hinson SC and Mr R Litster for the Appellant
Mr C L Hughes SC and Mr T N Trotter for the Respondent
SOLICITORS:
Hopgood Ganim for the Applicant
Wakefield Sykes for the Respondent
The court is asked to order further and better particulars of a document entitled “Appellant’s Points of Claim delivered pursuant to a court order made on 9 December 2005”. The proceeding has been on foot since 27 April 1995. The saga includes the appellant’s successful appeal to the High Court in Kettering Pty Ltd v Noosa Shire Council [2004] 207 ALR 1; the judgment is dated 23 June 2004.
On 18 August 2004, extension of time to 10 September 2004 was sought by the appellant for providing particulars of its claim for compensation for injurious affection attributable to the coming into force of the Noosa Hill Development Control Plan (DCP). There have been no particulars forthcoming. By letter of 13 September 2005, more than a year later, a new approach was suggested:
“4. Instead, we propose to identify:
(a)our client’s “after” case; and
(b)our client’s “before” case.
5. We have adopted this approach to most efficiently
(a)identify our client’s claim;
(b)afford the opportunity either for the parties to reach agreement, or to have the Court make a determination, as to those matters before the relevant valuation exercise is attempted.
6.To resolve those aspects of the matter first would, we believe, significantly reduce the ambit of matters required to be dealt with as part of the relevant valuation exercise.”
There followed a couple of pages of explanation and at par 21:
“21. In summary, our client’s position is that before the NHDCP:
(a)six additional Bayview houses shown in Diagram 1b;
(b)two additional Morwong Villas shown on Diagram 2; and
(c)thirty nine additional Resort units;
(d)six additional Creek-side villas on the western side of the creek;
would have been achievable.”
Judge Wilson SC on 9 December 2005 ordered, among other things:
“1.With regard to the assessment, pursuant to Section 3.5(8) of the Local Government (Planning and Environment) Act, of compensation payable (if any), in terms of the highest and best use of Lot 1 on RP136508 (“the subject land”) relevant to a determination of market values, there will be a preliminary hearing with respect to the following questions:
(a)whether immediately after the time of the coming into operation of the Noosa Hill Development Control Plan on 21 September 1991 the highest and the best use of the appellant’s fee simple interest in Lot 1 on RP136508 (“the subject land”) should be determined by reference to:
(i)the development approved by order of the Planning and Environment Court made on 21 June 2004 in Appeal No. 3651 of 2000; or alternatively
(ii)some other potential development, and if so what potential development;
(b)whether, had the said DCP not come into operation, the highest and best use of the subject land should be determined by reference to:
(i)the “before” development potential relevantly described in the letter of Hopgood Ganim Lawyers to Mr Wakefield Sykes dated 13 September 2005; or alternatively
(ii)some other potential development, and if so what potential development;
2.Any determination in respect of the questions in paragraph 1 does not preclude the subsequent consideration of other relevant valuation issues including the risks associated with achieving such development potential.
3.The appellant is to deliver Points of Claim identifying its contentions with respect to the questions for preliminary determination, and the material facts relied upon in respect of such contentions, on or before 4.00pm Friday 23 December 2005;
4.The respondent is to deliver any request for particulars of the appellant’s points of claim on or before 4.00pm Monday 30 January 2006;
5.The appellant is to respond to any request for particulars delivered by the respondent on or before 4.00pm Monday 13 February 2006.”
Points of defence were to follow. Paragraphs 10 and 11 identify and treat the “points” as pleadings. My understanding is that, although the Council resisted the notion of orders in terms of pars 1 and 2, it was then cooperative in formulating them and in the scheduling of steps to be taken in relation to the preliminary point. His Honour’s brief reasons, which I have consulted, noted he was confronted with “difficult matters for a court at this early stage to reach firm views about”, but was “ultimately persuaded to the view that there is at least the potential for advantage of the kind identified” in re Multiplex Constructions Pty Ltd [1999] 1 Qd R 287, 288 from resolving issues separately. The relevant UCPR provision is r 483.
This is not an appeal from his Honour’s directions; neither party has suggested they require to be reviewed, except in respect of timetabling.
During the argument, I was of the view that the understandable attempt to delay the bringing in of valuers may not be achievable, on the basis that value (a matter of opinion, except perhaps in special cases, such as the value established at auction) lay at the heart of determining “the highest and best use” of land. Mr Hinson SC, for the appellant, disputed that in an exchange at pages 21-22 of the transcript:
“MR HINSON: Highest and best use determines the money … You value land according to its highest and best use. You have to first ask what is its highest and best use.
…
The highest and best use has nothing to do with money.
…
HIS HONOUR: Surely in practical terms it’s got to have something to do with how much money you get depending on what use you make of it.
MR HINSON: No.”
He lived up to his promise of supplying the court with passages from valuation texts by supplying extracts from Hyam, The Law Affecting Valuation of Land in Australia (3rd) 122, which commences discussion of the topic as follows:
“Highest and best use
It is a principle of valuation procedure to value land in accordance with its highest and best use. This principle has received judicial approval on a number of occasions. In Spicer v Valuer-General (1963) 10 LGRA 319 at 320, Else-Mitchell J said:
‘The law is quite plain that under the Valuation of Land Act 1916 (NSW) the unimproved value of land must be based upon the best or most profitable potential use and if the land was legally capable of being subdivided for residential purposes … it was proper to value it on a subdivisional basis.’
In The Minister v Matford Nominees Pty Ltd [1973] 2 NSWLR 58 the Land and Valuation Court of NSW was concerned with the question of the value of a closed road. Else-Mitchell J said at 59-60:
‘A long line of decisions of this court and the High Court of Australia, of which Turner v Minister of Public Instruction (1956) 95 CLR 245 is an outstanding example, establishes that the land at any point of time will reflect its potentiality for the best and highest or most profitable use to which it can be put. This potentially will arise before actual development or redevelopment is undertaken and, in the case of englobo lands or broad acres, must not be regarded as non-existent until approval for development or redevelopment has in fact been granted.
The determination of the highest and best use of land was discussed by Jacobs J in Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410 at 415:
‘In the first place, it is in my view wrong in principle to determine the highest and best use by comparison of the notional market value for commercial development on the one hand, and residential development on the other. Common experience shows that land ideally suited for commercial development will fetch a higher price per unit of area than residential land, but it does not follow that the highest and best use of all land is a commercial use, for the highest and best use means exactly what it says – the most advantageous use of the subject land having regard to planning and all other relevant factors affecting its present and future potential. The first ask of the valuer is to determine what that use is and then to value the land on that basis. It is not appropriate to determine the highest and best use by reference only to value.’”
and the more specialised Douglas Brown, Land Acquisition (5th) 3.17:
“land taken should be valued for its highest and best use. … It is a principle to be found in the common law. … Turner v Minister of Public Instruction (1956) 95 CLR 245 at 264. … Subsequently to Turner in Crisp & Gunn Co-operative Ltd v Hobart City Corporation (1963) 110 CLR 538 the High Court referred to a distinction between ‘present use’ and ‘best economic value’, the latter representing its highest and best use.
…
The principle of highest and best value refers to the market value of the resumed land:
…
The zoning may facilitate the immediate realisation of that highest and best use, or, at the other end of the scale, it may totally prevent such realisation. In between these two, zoning may work to postpone, or defer, full or any realisation of the value of the highest and best use, until some intermediate action is taken and completed. The highest and best use remains throughout …”
The expression “highest and best use” appears nowhere in the relevant legislation. Apropos the passages quoted, it seems to me that since Jacobs J’s time, conditions have so changed that it is no longer possible to assert that commercial use is always more profitable than residential use. Accepting what is stated in the final sentence of his dictum, I remain unpersuaded that considerations of value can be set aside in identifying the highest and best use for a site and would agree with what was said by Else-Mitchell J. All of this may have a bearing on the appropriateness of ordering particulars which may have something to do with value, accepting that particulars are sought in the context of resolving a preliminary issue, as opposed to the whole appeal.
The Points of Claim, dated 29 December 2005 are:
“1.In September 1991 the Appellant was the owner of the land described as Lot 1 on RP136508 having an area of 19.8 hectares (the land).
Under the town planning scheme in force September 1991:-
(a)dwelling houses not exceeding 2 storeys or 10 metres in height were permitted development in the Rural Pursuits zone;
(b)group housing developments on sites of 4 hectares or more were consent development in the Rural Pursuits zone;
(c)the minimum lot size in the Rural Pursuits zone was 40 hectares under the Subdivision of Land Bylaw;
(d)bylaw 4 of Part D of that Bylaw allowed the Respondent to relax the minimum lot size of the land in the Rural Pursuits zone;
(e)The Respondent, prior to September 1991, had regularly allowed subdivision of land in the Rural Pursuits zone to lots as small as 2 hectares, as deposed to by Mr Weychandt in his affidavit in this proceeding sworn on 25 July 2000.
2. In September 1991 the land:
(a)was the largest single landholding on Noosa Hill;
(b)adjoined land on its northern, western and southern boundaries which had been developed for urban residential purposes;
(c)was located proximate to the Hastings Street business district of Noosa;
(d)had an outlook over the beach and the adjoining National Park on its western boundary;
(e)was included in the Rural Pursuits zone under the planning scheme then in force;
(f)was included in the Urban Area preferred dominant land use designation under the 1988 Strategic Plan then in force;
(g)was a Tourist Facility Growth Area under the Strategic Plan.
(h)was intended by the 1988 Strategic Plan to be developed for urban purposes and in particular for both permanent and tourist accommodation.
3.On 21 September 1991 the Noosa Hill Development Control Plan (the DCP) came into force.
4.The DCP applied to an area (the DCP area) which included the land.
5.Under the DCP the land:-
(a)was included in Precinct 2 – Primary Uncommitted;
(b)was included in each of Sub-Precincts A, B, C and D of Precinct 2.
6.On 15 October 1999 a development application for a development permit for making a material change of use of premises, a development permit for reconfiguring a lot, and a preliminary approval for carrying out building work was made to the Respondent for the land and adjoining land described as Lot 1 and 2 on GPT 103170.
7.On 25 August 2000 the Council decided to refuse the development application.
8.An appeal was filed in the Planning and Environment Court against the Council’s decision, being Appeal 3651 of 2000.
9.The appeal was heard over a period of 11 weeks during February, March and April 2001.
10.The appeal was determined by a consent order made on 21 June 2001.
11.The Appellant contends:-
(a)that its interest in the land was injuriously affected by the coming into force of the DCP;
(b)that it is entitled to obtain from the Respondent compensation in respect of that injurious affection.
12.In section 3.5(1) of the Local Government (Planning and Environment) Act 1990 (the Act) the expression ‘injuriously affected’ means ‘reduced in value’.
13.The compensation payable is to be assessed in accordance with s.3.5(8) of the Act.
14.The highest and best use of land is the most advantageous use to which it may be put having regard to the applicable provisions of the planning instruments regulating the development of that land and its physical characteristics.
15.In s.3.5(8)(a) the expression ‘market value’ means the market value assessed by reference to the highest and best use of the relevant land.
16.The highest and best of the land immediately after the coming into operation of the DCP is use for the purposes set out in the consent order made on 21 June 2004 in Appeal 3651 of 2000 in accordance with the conditions of approval contained in that order.
17.The highest and best use of the land on 21 September 1991 if the DCP had not come into operation is use as described in paragraphs 15 to 21 of the letter dated 13 September 2005 for Hopgood Ganim Lawyers to Wakefield Sykes which is Exhibit DLN-1 to the affidavit of David Leslie Nicholls sworn herein on 17 November 2005.”
Apparently within the time allowed by Judge Wilson, the Council sought further and better particulars in eight respects. It has had no more success in getting particulars than before. Perhaps superfluously, each request concludes “so as to ensure the Respondent knows the case it must meet and is not taken by surprise at the hearing of this appeal.” Except for 6, which seeks to elicit the “before and after” values of the land, what is asked for are “the material facts relied upon”, in some cases “particulars” of specific matters as well. The Planning and Environment Court Rules are silent as to particulars, so that Rules 157-163 of the UCPR are applicable. The appellant’s response in each instance has been that there “is not a proper request for particulars”, “at this point” being added in 5 and 6 – save that in 4, which sought particulars of (a) of par 11, the particulars are said to be pars 1-10 and 12-17 and “the letter dated 13 September 2005.” Generally, the material facts are said to be in the paragraphs and in the letter. It would have been preferable to incorporate all particulars to be relied on in the Points of Claim, rather than to compel reference to a third document. The UCPR say nothing on this score, but it might be noted that in circumstances within r 161, particulars are required to be self-explanatory.
Request 1
The allegation to be particularised is that the Council “regularly allowed subdivision of land in the Rural Pursuits Zone to lots as small as 2 hectares” with “any examples to be relied upon” identified. Five grounds of objection to the request were advanced, commencing with:
“(a)that the Respondent ‘regularly allowed subdivision of land in the Rural Pursuits Zone of lots as small as 2 hectares’ is the relevant material fact; and
(b)that paragraph seeks the evidence by which that fact will be proved.”
The annotations in Ryan, Weld & Lee, “Queensland Supreme Court Practice” to the former RSC Order 23 are a useful repository of the jurisprudence about particulars. As to (b), 23.1.17 provides some support, going on:
“However, where the request for particulars is proper, the information must be given even though it discloses some portion of the evidence on which the other party proposes to rely at the trial”.
In nearly every response, there is an objection that evidence is sought. One would conclude that the appellant has been astute not to plead evidence and that the words in 1(e), “as deposed to by Mr Weychandt”, are not intended to refer to evidence. Mr Weychandt, as a Council officer, provided it with an affidavit which was filed long ago, and placed before the court as Exhibit 1. Although Mr Hughes did not raise the matter, I think there are concerns as to whether the affidavit is intended to be relied on as an admission by the Council, or as the basis for an estoppel binding it. This ought to be clarified to inform the Council of the case it has to meet. If the statement were regarded as evidence, presumably it would not have been pleaded.
As to (a) above, while, superficially, the assertion may be seen as the relevant material fact, on analysis, it is doubtful whether it asserts a fact at all, as opposed to a conclusion or summary about the effect of real facts, being the Council’s decisions in particular applications. The meaning of “regularly” is totally mysterious. The Oxford English Dictionary Online illustrates with examples the following meanings of “regularly”:
“In a regular manner.
1.At the proper times; at fixed times or intervals; without interruption of recurrence; constantly.
…
b. Invariably; in all cases. Obsc.rare-1.
…2.In accordance with rule or established principles; in a proper or formally correct manner.
…
b.In the usual or customary manner.
…
3.In a methodical or orderly manner; with observance of due order or method.
…
4.In a symmetrical or harmoniously proportioned manner; with proper correspondence of parts, etc.
…
5.colloq. Thoroughly, completely. Chiefly with participles.”
Mr Weychandt may mean “often”, a use of “regularly” which may not be acknowledged by the lexicographers, but which I think is common in the community. He may mean “always” or “at fixed times or intervals”, which may mean quite infrequently on the basis that, say, Halley’s Comet makes regular appearances, every 76 years, approximately. He may mean “by the book” in the sense of a rare Shakespearean of “regular” to qualify “justice” in Timon of Athens. More to the point might be the success rate of applications to the Council for small subdivisions in the Zone. In what percentage of such applications did the Council agree? The answer may well say little or nothing about the prospects of such an application for the appellant’s site; it may be much more to the point to identify comparable situations. The more one thinks about this allegation, the more obvious is the necessity that it be properly particularised.
The objections continued:
“(i)the subject matter of that paragraph is in any event within the knowledge of the Respondent as is identified in paragraph 1(e) of the Appellant’s Points of Claim;
(ii)the Appellant cannot better identify all evidence supporting the matter deposed to by the Respondent’s Director – Environment & Planning until disclosure is complete (assuming the relevant material fact remains in issue on delivery of the Respondent’s Points of Defence);
(iii)the information sought by that paragraph is not required so as to ensure that the Respondent knows the case it must meet and is not taken by surprise at that preliminary hearing directed by the order made in this Proceeding on 9 December 2005.”
Ryan Weld and Lee at 23.1.13 identifies circumstances such as (i) as ones which may lead to the discretion to order particulars not being exercised, on some basis such as oppressiveness:
“However, the knowledge of the requesting party is not sufficient to refuse an application because the requesting party is entitled to know the case against him or her which may be something very different from the true facts of the case: Palmos v Georgeson [1961] Qd R 186, 193.”
As to (ii), the practicalities are acknowledged at 23.1.11, where it is noted that the giving of complete particulars may be postponed until after discovery or disclosure. It may be appropriate, and I think is here, assuming that a genuine case of difficulty has been made, that “an order is made for the best particulars able to be given with leave to deliver amended particulars”. The standard objection in (iii) is totally inappropriate here. 23.1.22 might be noted:
“An obvious reason for seeking particulars of a claim or defence of the opposite party is to avoid being surprised at a trial. A second reason, and one as important as the first, is to attempt to limit the evidence to be led at trial, and to bind the opposing party to the cause of action on the pleadings as particularised. Unless there is good reason for allowing it, a party is not permitted to adduce evidence on matters not covered in the pleadings as supplemented by the particulars.”
Request 2
This request relates to par 2(g)’s allegation the land “was a Tourist Facility Growth Area under the Strategic Plan”. The same five objections were made, also:
“(c)that the land “was a Tourist Growth Facility Area under the Strategic Plan” is also a matter of law having regard to the proper construction of the provisions of the 1988 Strategic Plan and in particular the Preferred Dominant Land Use categories on the maps that formed part of that Strategic Plan.”
It seems that Mr Weychandt’s affidavit may be relied on here as well. In my opinion, the use of “in particular” sets alarm bells ringing. Under r 149 of the UCPR, if a claim or defence under an Act is relied on, the specific provision must be identified. While, strictly, this applies to State legislation only, the same approach ought to apply to other legislative provisions (cf Butterworths’ Civil Procedure Queensland 149.10). An example of a plaintiff ordered to give particulars of sections of an Act, local government by-laws, and “special orders” relied on is Commissioner of the State Savings Bank of Victoria v Shire of Mulgrave [1936] VLR 367: See 23.1.52. I would take the same approach here. As to the other five objections, although the case is not as stark as for request 1, those deserve to be dealt with in the same way.
Request 3
Request 3 relates to particularising an allegation that the appellant’s land “was intended by the 1988 Strategic Plan to be developed for urban purposes and in particular for both permanent and tourist accommodation”. Six objections to similar effect have been made. They deserve the same fate – assuming that “in particular” reserves manoeuvring room for the appellant to bring in additional provisions.
Request 4
The allegation here is that the land was “injuriously affected by the coming into force of the DCP”. The response identifies the material matters of fact and the law relied on by reference to the other paragraphs of the Points of Claim and the letter of 13 September 2005, mentioned above. It should set out relevant parts of the letter. It does not supply, as I think it should, the requested identification of all provisions of the DCP to be relied on.
Requests 5 and 6
Requests 5 and 6 relate to the amount of compensation referred to in par 11(b) that the appellant says it is entitled to obtain with “particulars of the material facts and figures relied upon to calculate such compensation”, so far as 5 is concerned and particulars of the value of the subject land immediately prior to and immediately after the coming into force or operation of the “provision in question”, in 6. Without more, that last expression quoted is difficult to understand. Apparently it is referring to s.2.5(8) of the Local Government (Planning and Environment) Act 1990, reference to which clarifies the situation, given the reference to “the coming into operation of the provision of the planning scheme by virtue of the operation whereof the claim for compensation arose”, so that the request should be read as referring to the coming into effect of the DCP. The appellant contends that these requests are premature. The court now should be conscious of the decision taken last December to direct a preliminary hearing which would not involve a full-blown contest between valuation experts (assuming, perhaps cynically, that the parties’ valuers will present different opinions about value in at least some aspects). The appellant’s response is not decisive, in my opinion. It can hardly complain, having chosen to make allegations in its Points of Claim, if asked to provide conventional particulars of them. The apparent coyness of the appellant about ascribing dollar amounts to values that pertained in 1991 is odd. The Judges in Multiplex Constructions asserted at 288 that “There are often questions in a dispute the decision of which, whilst it may not necessarily resolve the whole dispute, may nevertheless lead to its resolution, in a way which results in considerable savings of time and cost, often for reasons which are neither strictly legal nor logical.” It may promote resolution of this appeal, or of the preliminary issue, if the Council knows what compensation it is being asked to pay. I would think the “facts and figures” can be easily given in terms of the before and after values asserted. As to 6, I think the request, in context, in referring to “value”, refers to “market value” as mentioned in the section. Being of the view that “highest and best use” cannot be determined in isolation from market value produced by identified uses, I think the particulars ought to be given.
Requests 7 and 8
Requests 7 and 8 want particularised allegations that the highest and best use “after” is in terms of a consent order of the court made on 24 June 2004 by agreement of the Council and a subsequent owner of the land and that the highest and best use “before” is as described in the letter of 13 September 2005. One’s impression is that the appellant is working back from the order to assert that, but for the DCP, larger numbers of houses, units and villas in various categories would have been approved. There may well be complex issues involved - of the physical capacity of the site to accommodate the larger numbers, for example. Requests 7 and 8 seek the material facts relied on to support the allegations of pars 16 and 17. The appellant’s approach appears to be to advance the order as the highest and best use “after” and then assert that “before”, greater numbers of saleable components could have been incorporated. The starting point may or may not be correct. It might command acceptance more readily had the court made some finding, but self-evidently, such was not the case. The parties to the consent orders did not include the present appellant. In the compromise reached by the parties (after weeks of hearing time, the court was assured) the Council would not necessarily concede and the appellant in that proceeding might not necessarily hold out for an outcome representing the highest and best use, for all manner of factors. The present appellant’s interests are served by establishing a more modest “after” highest and best use. In the circumstances, it is difficult to see that the court’s involvement has any relevance at all, as an imprimatur given to the parties’ agreement or otherwise. What is really relied on is the agreement. It is inconceivable that no material facts could be identified as ones which support the allegation in paragraph 16. Given that value is a matter of opinion, as the text passages supplied by Mr Hinson confirm, it may well be that opinion is an aspect of highest and best use. I would expect that facts material to the mix of villas of various kinds, houses and “Resort” units being the most appropriate could be given. As to the objection that these requests involve “a matter of law having regard to the proper construction of the provision of the planning scheme”, it is unnecessary to repeat the comments above regarding identification of all positive law provisions to be relied on.
The draft order proposed by Mr Hughes began with an order that “the appellant is to further respond to the respondent’s request for particulars …”. The broad effect of these reasons is that the request should be responded to, rather than being avoided, as it has been. Some minor refinements may be appropriate, as foreshadowed above. I will leave it to the parties to try to agree on an appropriate form of order giving effect to the views above, and adjusting the timetable set on 9 December 2005 appropriately.
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