Lamb v Brisbane City Council & Anor
[2006] QPEC 124
•14 December 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Lamb v Brisbane City Council & Anor [2006] QPEC 124
PARTIES:
joy lamb
Applicant
v
BRISBANE CITY COUNCIL
First Respondent
and
JANIS STEPHENS
Second Respondent
FILE NO:
1399 of 2006
PROCEEDING:
Application
DELIVERED ON:
14 December 2006
DELIVERED AT:
Brisbane
HEARING DATE:
30 November 2006
JUDGE:
Judge Brabazon QC
ORDER:
Declare listing in Heritage Register Planning Scheme Policy to be invalid
CATCHWORDS:
PLANNING AND ENVIRONMENT - HERITAGE CONSERVATION - validity of Heritage Register – retrospectivity of amended act – extension of time for development application
Statutes:
Integrated Planning Act 1997 ss 2.1.16; 2.1.21; 2.1.23(4); 4.1.5ACases considered:
Collier & Anor v Brisbane City Council & Anor; Sexton & Anor v Brisbane City Council & Anor [2006] QPEC 090
Kartinyeri v The Commonwealth (1998) 195 CLR 337
R v Gardener (1938) SASR 6
Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410
Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 QdR 530
Grant v Pine Rivers Shire Council & Anor [2005] QPELR 701
Riethmuller v Brisbane City Council [2005] QPELR 249
Chang v Laidley Shire Council [2006] QCA 172COUNSEL:
Mr P Lyons QC, with him Mr Cochrane for the Applicant
Mr M Hinson QC for the First Respondent
SOLICITORS:
Freehills for the Applicant
Brisbane City Legal Practice for the First Respondent
The Issues
Mrs Lamb and Mrs Stephens are sisters. They are the daughters of Mrs Rose Topham who died on 24 July 1998. They are executors for her estate, and are beneficial owners of their mother’s house, at 81 Dornoch Terrace, Highgate Hill, Brisbane. The house is in the Medium Density Residential Area.
On 4 June 2002 Council decided to include 81 Dornoch Terrace in its Heritage Register. Mrs Lamb has opposed that listing. Several issues are raised here.
(a) Was the listing a valid exercise of Council’s powers?
(b) If it was, then was Mrs Lamb’s lodging of a Development Application for its demolition, on 28 June 2004 within time, and
(c) In the event she was out of time, might that failure be excused under s 4.1.5A of the Integrated Planning Act?
The Heritage Listing
On 2 November 2001 the Council wrote to Mrs Topham (her name, no doubt, still appearing in its records) and advised that Council was proposing to include the property at 81 Dornoch Terrace on the Heritage Register. The letter went on to explain the implications of being listed as a heritage place:
“The purpose of listing of properties on the Heritage Register is to ensure development (either on the site or adjoining the property) does not detract from the identified cultural heritage significance. Such development would trigger a planning application. The type of application depends on the extent of development proposed on your property, for example
• minor building work or minor demolition would require a planning application with no public advertising. The definitions of minor building work and minor demolition are attached.
• building extensions or subdivision of land would require a town planning approval involving public advertising.
Demolition or removal of a heritage place would be unlikely to be approved. Such an application lodged with Council would require public advertising. Any proposed development would be assessed against performance criteria set out in the Heritage Place Code, which is enclosed for your information …”
Mrs Lamb replied on 17 December 2001, setting out various observations and complaints about Council’s proposal. Then, on 19 July 2002, a letter advised that Council had decided to proceed with the placing of the house onto its Heritage Register. The amendments had been presented to Council on 4 June 2002. The letter went on to advise that the amendment to the City Plan to include the above property into the Heritage Register became effective as of 1 July 2002.
A Planning Scheme Policy
At the time, s 2.1.23 of IPA was in this form:
“2.1.23 Local planning instruments have force of law
(1) A local planning instrument is a statutory instrument under the Statutory Instruments Act 1992 and has the force of law.
(2) A local planning instrument may not prohibit development on, or the use of, premises.
(3) A planning scheme or a temporary local planning instrument can regulate a use of premises, but only –
(a)by applying to the use a code identified in the planning scheme or temporary local planning instrument; and
(b)if –
(i) the use is a natural and ordinary consequence of making a material change of use of the premises happening after the code took effect; and
(ii) the making of the material change of use is assessable or self-assessable development.
(4)A planning scheme policy can not regulate development on, or the use of, premises. (emphasis added)
(5)…”
It is helpful to note the explanation in the Explanatory Guide, based on the draft Explanatory Notes which accompanied the Bill presented to Parliament.
“Subsection (4) makes it clear that a planning scheme policy can neither regulate not prohibit the development or use of premises. Planning scheme policies are polices that support the local dimension of a planning scheme. It is not appropriate that they be a further regulatory instrument. This could potentially lead to conflict with the planning scheme.”
Section 2.1.23(4) is the focus to the present dispute. A planning scheme policy cannot regulate development. As defined in s 2.1.16 of IPA, a “planning scheme policy is an instrument which supports the local dimension of a planning scheme and is made by a local government under division 5 of IPA.”
It is necessary to turn to City Plan to see how such a policy is involved in this case.
The Heritage Place Code applies in assessing building work (including demolition) reconfiguring a lot or operational work on a heritage place. The Code goes on to deal with instances of impact assessment (such as demolition) or code assessment. It is enough to observe that the level of assessment and the constraints upon building work and development are more severe than would normally be the case in the Medium Density Residential Area. That difference is also reflected in the levels of assessment – the Heritage Place Code is an additional code that has to be applied if land is a Heritage Place.
The Heritage Place Code says that “the register of heritage place sites is included in the Heritage Register Planning Scheme Policy”. That is consistent with the definition in City Plan of “Heritage Place” “premises identified in the Heritage Register of the Heritage Register Planning Scheme Policy”.
It is necessary to turn to the Policy. See City Plan vol 2 Appendix 2 p 93. It says, in part:
“1. Heritage Register
This planning scheme policy is used in applying the Heritage Place Code. It contains a register of heritage places to which the code applies.
Places of cultural or natural heritage significance will be identified on the Heritage Register in accordance with the criteria for entry into the Register.
...
2.Criteria for entry in the Heritage Register
2.1 Places of Cultural Heritage Significance
A place may be entered in Schedule 1 if it meets one of the following cultural heritage values ...
3.Process for entry in the Heritage Register
The process for entry in the Heritage Register will be in accordance with the planning scheme policy amendment process outlined in the Act.”
Then follows Schedule 1, which includes heritage places of cultural heritage significance. The last entry on page 109 is the house at 81 Dornoch Terrace, Highgate Hill.
Is the Heritage Register Planning Scheme Policy regulating development at 81 Dornoch Terrace? If so, it is contrary to IPCA, and will be invalid. On the other hand, if the Heritage Place Code is regulating development, then it may be valid.
An Earlier Decision
It is necessary to say that exactly the same issue has been considered in this Court already. See Collier & Anor v Brisbane City Council & Anor; Sexton & Anor v Brisbane City Council & Anor [2006] QPEC 090, (judgment 31 August 2006). After mention of counsel’s submissions, the learned judge reached this conclusion:
“Indisputably, it is the case that the inclusion of a property by name in the Heritage Register (a function of the policy) is what brings it within the operation of a particular system of regulation. But for being included in the Heritage Register as first published, or pursuant to some amendment, a property would be unaffected by the regulatory regime established by the Heritage Place Code. There is force in both sides of the argument. In the end, I think that section 2.1.18 tips the balance against the contention of (a co-respondent denying the validity of the listing). What has been done may be seen as an instance of permissible incorporation by reference as recognised by the High Court in another context in Dainford Limited v Smith (1985) 155 CLR 342 at 348. In my opinion, it is a correct analysis to regard the planning scheme as the sole source of regulation. It applies, adopts or incorporates (in part) the policy rather than the other way round.”
There is need to mention some of the arguments that lay behind the judge’s conclusion, which were repeated in this case.
The reference to s 2.1.18 of IPA needs explanation. It refers to s 23 the Statutory Instruments Act 1992, which allows a statutory instrument to apply, adopt or incorporate the provisions of an Act, statutory instrument, other law, or another document. It allows a local government to choose whether or not to “call up” a local planning policy or other document into its planning scheme. “Calling up” a policy or other document effectively makes it part of the Planning Scheme. The section limits the generality of s 23 by stating that the only document made by a local government which can be applied, adopted or incorporated into its planning scheme, is a planning scheme policy. The purpose of the section is to ensure that a planning scheme can only “call up” local documents that have gone through an appropriate public consultation process. (Taken from the Explanatory Guide at p 27).
City Plan does call up numerous policies, of which the Heritage Register Planning Scheme Policy is one. See City Plan vol 2 Appendix 2 p 3:
“These planning scheme policies provide guidance to assist in the submission of development proposals and material to support the codes contained in the plan.
Additional Council documents called up in the plan that are adopted as planning scheme policies for the purpose of this plan are listed below: ...”
Counsel supporting the validity of the heritage listing in this case made a submission:
“... IPA expressly authorises a local government’s planning scheme to apply, adopt or incorporate a planning scheme policy under section 23 of the Statutory Instruments Act 1992. City Plan does ‘apply’ or ‘adopt’ the provisions of the policy, to the extent that the code applies to premises which are identified by reference to the policy. The role of the policy is confined to the identification of premises to which the code applies. The code does not apply to those premises by force of the operation of the policy: it is the code itself that applies its provisions to the premises so identified.
So, the regulation of development on, or the use of, premises listed in the Heritage Register under the policy is affected by relevant provisions of City Plan, not the policy, as City Plan is authorised to do by IPA section 2.1.18. The validity of that conclusion is not affected by the fact that the Heritage Code applies only to premises listed in the Heritage Register under the policy. It is not to the point that development on, or the use of premises is relevantly unaffected unless those premises are included in the Heritage Register. The fact remains that the operative provisions – the provisions that affect that regulation, are contained in the code, not the policy ...”
It is difficult to accept the submission, that the adoption of the policy under s 23, can have an impact on the question here – does it regulate development on listed premises. Section 2.1.8 is intended to do no more than allow duly adopted policies to be “called up” or physically incorporated into the planning scheme documents. The status of the policy is not affected in any way. It remains something which cannot regulate development.
The submissions made here for Mrs Lamb were similar to those in Collier v Sexton & BCC. They can be encapsulated this way:
“The policy seeks to impermissibly regulate development, on or use of premises, contrary to section 2.1.23(4) of IPA.
‘Regulate’ in section 2.1.23 generally has the ordinary meaning of that term, when used in relation to statutory instruments. ‘Regulate’ means to subject to restrictions, or to control by rule, subject to restrictions, or to control or direct by rule, principle or method. The effect of the policy is clear. It seeks to regulate development on, or use of, premises by determining the level of assessment.
... By changing the level of assessment, the policy has the effect of altering the way in which a person is able to develop or use the premises. By raising the level of assessment for building to ‘impact assessable’ for example, an applicant can no longer seek to develop land without complying with the public notification requirements ... .
In determining the validity of the policy, it is not to be looked at in isolation; rather it must be read with the provisions of City Plan, whose operation it alters.
The change in the level of assessment has the consequence that the ability to develop land is controlled or subjected to restrictions ... In that sense determining the level of assessment regulates a development or use of a premises.
... Section 2.1.3 of IPA relevantly provides, that key elements of planning schemes (include self assessable development, and assessable development requiring code or impact assessment). Determining the level of assessment is something that falls within the purview of planning schemes as contemplated by s 2.1.3 of IPA. It does not fall within the scope of planning scheme policies which are intended to support the local dimension of a planning scheme (section 2.1.16) nor control development or use of premises.
In such circumstances, the only way that the policy could comply with IPA would be if it could be categorised as an amendment to City Plan, an amendment to a planning scheme. That process has not been followed. It is clear that non-compliance with provisions such as 2.1.3, 2.1.23 and 2.1.5 of IPA renders the policy and the amendments invalid and of no effect.”
It is, no doubt, necessary to look at the substance of these things, rather than their form. Reference was made to the High Court’s decision Kartinyeri v The Commonwealth (1998) 195 CLR 337 at paras 7-10, 58, 68-69 and 174. That being so, in my respectful opinion, it is difficult to regard the planning scheme and the code as the sole source of regulation. There can be no application, adoption or incorporation in any way of the policy until the listing is made. That is the vital step. Without the listing, the code is nothing. To refer to and incorporate a policy is one thing. To use a policy as the vehicle for naming the properties which will be on the register, and therefore subject to the code, is another thing. It is that active step which means that the listing with respect to No 81 Dornoch Terrace regulates development of property. The Council’s letter (above) frankly describes what the policy is doing – “the purpose of listing is to ensure development … such development would trigger a planning application ….
The Council meeting of 4 June 2002 also illustrates the reality of what was proposed:
112On 28 August 2001, Council proposed to introduce the West End – Woolloongabba Local Plan. As part of the Local Plan, a number of Heritage Places … were proposed for inclusion in their respective registries.
117 Forty-six submissions were received … The grounds of objection were:
●The listing would restrict the development potential of the property.
●Current use of the property would be restricted.
●The listing would cause financial disadvantage through increased maintenance costs and lost development potential.
●…
This dynamic use of a policy, to incorporate different properties from time to time goes beyond the concept of a policy which is meant to “support the local dimension of a planning scheme.” The policy is being used to do a lot of work. It is a significant part of a system of regulation. For these reasons, I feel compelled to reach a different conclusion. The listing is invalid, being contrary to s 2.1.23(4) of IPA.
It is appropriate to consider the other issues.
A Time Limit
At the meeting of Council on 4 June 2002, various amendments to the Heritage Register were considered. The changes included 53 heritage places in the West End-Woolloongabba area. They included the property at Dornoch Terrace. Council adopted the proposed amendments to the policy. It also resolved that the adoption of those amendments had effect on and from Monday, 1 July 2002. The resolution directed that a public notice of the amendments be published.
The amendments were duly published in the Government Gazette and The Courier-Mail of 14 June 2002.
Mrs Lamb made a development application on 28 June 2004. That is, it was a little more than two years after the adoption of the amendment, and its notification in the newspaper. However, it was within two years of 1 July 2002, when the resolution said that it would take effect. There is an issue here about the time limit. Was the application inside or outside the two year period?
It is important because of the provisions of IPA about claims for compensation. Where there is a change to a planning scheme, or any planning scheme affecting land, the owner may be able to claim compensation. Compensation can be paid if a change reduces the value of the interest in the land. See ss 5.4.1 and 5.4.2 of IPA.
It is a necessary condition of a claim for compensation, that “a development application (superseded planning scheme)” for a development permit relating to the land be made. The application is assessed having regard to the planning scheme and planning scheme’s policy in effect when the application was made.
After the Heritage Register Policy was amended, there was a change which meant that there was a “superseded planning scheme”. That depends on the definition in Schedule 10:
“A superseded planning scheme, for a planning scheme area, means the planning scheme, or any related planning scheme policies, in force immediately before –
(a) the planning scheme or policies, under which a development application is made or adopted; or
(b) the amendment, creating the superseded planning scheme, was adopted.
It is helpful to note the definition of a related term. “Development application (superseded planning scheme)” means
“(a)…
(i)…
(ii)…
(iii)made within two years after the day the planning scheme or planning scheme policy creating the superseded planning scheme was adopted or the amendment creating the superseded planning scheme was adopted …” (emphasis added)
It is also necessary to note the machinery for amending a policy. It is found in Schedule 3 to IPA. Section 5 of part 3 may adopt a proposed policy, or amendment to a policy, as notified. As soon as practicable after a local government decides to adopt a policy, or an amendment to the policy, it must publish a notice in a newspaper in the area. The notice must include “the day the resolution was made” (s 7(1)(c)).
Section 2.1.21 of IPA deals with the effects of planning scheme policies –
“(1)A planning scheme policy made under this division for a planning scheme area –
(a)…
(b)…
(c)has effect on and from
(i) the day the adoption of the policy is first notified in a newspaper circulating generally in the local government’s area …
(2)If a planning scheme policy is amended under this division, the amendment has effect on and from –
(a)the day the adoption of the amendment is first notified in a newspaper circulating generally in the local government area; or
(b)if a later day for the commencement of the amendment is stated in the amendment – the later day.”(emphasis added)
Mrs Lamb’s solicitors gave her advice. This is a summary of the key points:
“On 1st July 2002, the Council amended City Plan by including the property in the Heritage Register. … A development application (superseded planning scheme) must be lodged within two years after the amendment to the planning scheme. The application must ask the Council to assess the application under the planning scheme as it was before the amendment … It appears to us that the above steps provide the opportunity to recover or minimise the loss in market value of the property due to its heritage listing under City Plan which occurred on 1st July 2002. … It appears to us that if the trustees accept the above analysis then an application (superseded planning scheme) will need to be prepared and made to the Council for the demolition of the house on the property prior to 1st July 2004. There is no prospect of being able to extend this timeframe under IPA. … Could you urgently consider the above and kindly advise of a proposed course of action of the trustees given any action must be taken by 1st July 2004. …”
Attention was directed to the time limits in s 5.4.6(b). That is a time limit for claiming compensation, in a different situation, where land can only be used for a public purpose. If such compensation is claimed, it must be given to the local government within two years after the day the change came into effect. See s 5.4.6(b).
It was submitted for Mrs Lamb that the word “adopted” ought to be read as meaning “came into effect”. If Council agreed that the amendment would take effect on later date (this case) then that is the effective date of adoption. Her solicitors were right, in seeing 1 July 2004 as the critical date.
It is difficult to see that the plain meaning of the words can be departed from. For example, in s 2.1.21(1)(c), a distinction is made between the day of adoption, and the day it comes into effect. If the Act did not contain those differences then the submission could be accepted. The deliberate distinction between “adopt” and “take effect” points the other way. Her application was late.
Retrospectivity
In March 2006, the Schedule 10 definition of “development application (SPS)” was amended. The time limit within the definition was changed to:
“(iii)made within two years after the day the planning scheme or planning scheme policy creating the superseded planning scheme took effect or the amendment creating the superseded planning took effect …” (emphasis added)
The explanatory note, in cl 82, said this:
“The definition of ‘development application (superseded planning scheme)’ has been amended to clarify that the two year period to lodge a development application (superseded planning scheme) starts the time the planning scheme, policy or amendment giving rise to the superseded planning scheme commences, not when it is adopted (as the notice of adoption can specify a later date for commencement).” (emphasis added)
Here, it was submitted that the substitution of “took effect” for “adopted” should be given retrospective effect. It was submitted that the amendments were of a declaratory nature, and therefore retrospective. See ReGardener (1938) SASR 6. It was also submitted that retrospective effect would have no adverse effect on the potential rights of third parties, but would simply work to protect the rights of those, like Mrs Lamb, who had not made an application in time. As it would be expected that there would usually be not much delay between the adoption of a change, and the date at which it takes effect, the impact would not be great.
For the Council, it was submitted that there was nothing to show that the amendment was retrospective. It was pointed out that retrospectivity would normally be contrary to the fundamental legislative principles adopted in this State. This change was not treated in that way. The explanatory notes do say that the Local Government and Other Legislation Amendment Bill 2000 did contain a number of provisions intended for retrospective commencement. This change was not flagged as one in that category.
An Act may be retrospective in effect if it is merely meant to declare the meaning of a statute. As it is put in Statutory Interpretation in Australia, (4th Ed) by Pearce and Geddes:
“(10.10) Acts that declare or interpret the meaning of earlier Acts are regarded by the courts as forming an exception to the presumption against retrospectivity. They are treated as if they came into operation on the date in which the Act that they are interpreting came into operation. The reasoning behind this presumably is that such Acts are not altering the law in any way but are only making its meaning clearer. Persons affected by the law are therefore not subject to any greater liability than previously existed and thus the rationale of the retrospectivity rule is negated.
However, the incidence of such Acts is very rare. The normal pattern is that amending Acts add to or subtract something from an existing Act; they do not merely make the meaning of the Act a little clearer. … To constitute a declaratory Act and hence come within the operation of the exception, it is necessary for the Act to do more than simply use the word ‘declare’. On the other hand, an Act need not state that it is declaratory – if that is its effect, the Court will apply it retrospectively. …”
In this case, the 2006 amending Act does not say that it is declaratory. The Explanatory Note (above) does say that it was to clarify the definition. That is consistent with the Policy Objectives of the Legislation. Among other things, it is to “clarify a number of IPA provisions and address certain operational matters”. Under Achieving the Objectives, it says that: “The objectives of the Bill are achieved primarily by … improving and clarifying IPA through removing any irregularities and resolving operational issues.”
It is for the court to assess the true nature of the legislation. There is support to be found in the expression, “clarify”. However that looks like a diplomatic term for “change”. On balance, it should be decided that the amendment is not merely declaratory and is not retrospective.
Extending the Time
It was submitted for Mrs Lamb that, if her application were found to be late, then that lateness could be excused, under s 4.1.5A of the IPA:
“How Court may deal with matters involving substantial compliance
(1)Subsection (2) applies if in a proceeding before the Court, the Court –
(a)finds a requirement of this Act … has not been complied with, or has not been fully complied with; but
(b)is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.
(2)The Court may deal with the matter in the way the Court considers appropriate.”
It was submitted that the relatively short delay, the fact that the delay had been caused by a mistake by Mrs Lamb’s solicitors, and because the rights of the Council were not prejudiced in any way, that the application should be allowed, by ordering that the time for lodging the application be extended to include 28 June 2004.
For the Council, it was submitted that there had been no identification of a “requirement of the IPA” had not been complied with. It was submitted that an order under the section could not prevail against the specific provisions of the definition of “development application (superseded planning scheme)”. (It will be recalled that the definition in Schedule 10 says that such an application means one that is made within two years after the adoption of the new policy.)
It does not matter that an element of the definition is missing in this case. In substance, the definition contains a time limit for the application to be made. It is appropriate to see that as a “requirement” of the Act.
The Court of Appeal has recently affirmed the extent of the power to excuse a failure to obey a requirement of the Act. In Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410 it confirmed that the section should be construed to give a power to make orders putting a party who was non-compliant, in the same position as if there had been compliance. See par 32 of the judgment of Jerrard JA. The earlier decision of the Court of Appeal in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 QdR 539 at 543; 2002 QCA 470 had extended time so that a failure to make a “properly made application” on time was excused. See also, in particular, the decision of Judge Wilson SC in Grant v Pine Rivers Shire Council & Anor [2005] QPELR 701, and the decision of Judge Robin QC in Riethmuller v Brisbane City Council [2005] QPELR 249 at 251. It was decisions of that kind which the Court of Appeal confirmed in Metrostar, where the facts were different from these here. There, the developer was in breach of the conditions of an approval, and any change to the conditions required further assessment. For that reason, and for what appear to be other discretionary reasons, the Court of Appeal said that the developer’s failures could not be excused. This situation is quite different.
Mention was also made of the decision of Court of Appeal in Chang v Laidley Shire Council [2006] QCA 172. There, as in this case, there was a wish to make an application during the two year period following a change to a planning scheme. Before the application was lodged, the South East Queensland Regional Plan came into effect, according to the IPOLA legislation. It was held that the general provisions of s 4.1.5A could not prevail against the specific provisions of IPOLA, which were concerned to ensure that an application for a development permit for development which is contrary to the SEQ Regional Plan should not even be received by the assessment manager. See par 77. That decision does not assist the Council, in this case.
It is appropriate to exercise the discretion in favour of extending the time for this application to be made.
Conclusion
Subject to any further submissions, this will be the order: declare that the inclusion of 81 Dornoch Terrace. in the Heritage Register Planning Scheme Policy, on 4 June 2002, is invalid.
3
1