Lewiac v. Gold Coast C.C

[1993] QCA 264

THE COURT OF APPEAL	[1993] QCA 264
SUPREME COURT OF QUEENSLAND

Appeal No. 24 of 1993

Brisbane

Before The Chief Justice
Mr Justice McPherson
Mr Justice Dowsett

[Lewiac v. Gold Coast C.C.]

BETWEEN

LEWIAC PTY LTD

(Applicant) Appellant

AND

COUNCIL OF THE CITY OF GOLD COAST

First Respondent

AND

ERRENMORE PTY LTD

Second Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 19/07/1993

In November 1986, which now is a long time ago, Haltiffin Pty Ltd applied to the Gold Coast City Council, which is the first respondent to this appeal, to amend its town planning scheme by rezoning certain land at Southport. It is sufficient here to describe the land as Lot 3. Haltiffin is predecessor in title to Errenmore Pty Ltd, which is the second respondent to the appeal. The land was in the Residential A zone, from which it was desired to exclude it. The zone under the planning scheme in which Haltiffin wished to include that land was Special Facilities (Hotel and Commercial Complex). The appellant Lewiac Pty Ltd has an obvious interest in preventing use of that land for such a purpose. It conducts in the neighbourhood a business that competes, or with which the business to be conducted on Lots 3 and 4 will compete if the project that is proposed for that site proceeds.

The submissions on behalf of the appellant were presented at length and occupied by far the greater part of the hearing in the Court running over two days. The questions they raise are, however, not complex, and it is possible to dispose of them with relative brevity.

The first question concerns the validity in law of the process by which the town planning scheme was amended and the rezoning of Lot 3 was carried through. The first step was for Haltiffin to apply under s.33(6A) of the Local Government Act 1936 for the land to be rezoned. The application was lodged in November 1986. Following a report from the Planning and Development Committee, the Council on 10 April 1987 resolved to approve the application. Section 33(18)(n)(ii) of the Act provides that, in the event of an objection being made, the application shall not if an appeal is instituted be decided until the appeal is determined. In deference to that restriction, the Council expressed its decision in the form that notice of its intention to approve the application be served on the applicant and the objectors, and that "approval as herein proposed shall come into force, and the application be forwarded to the Minister for approval" if, after the time for appealing had expired, no appeal was instituted by the objector.

The appellant Lewiac and another company objected to the application, and both of them appealed. The appeals were later dismissed by consent, that of Lewiac on 17 July 1987. However, according to the appellant's submission, the operation of the suspensive condition embodied in the Council resolution of 10 April 1987 had already been triggered by the institution of the appeals; in consequence, or so it was contended, the Council ought under s.33(18)(p) then to have made a decision on the application and notified the applicant within the time specified in that provision.

After the appeals were dismissed the Council did not
formally again resolve to approve the application for rezoning.
The Town Clerk nevertheless forwarded the application to the
Minister. In accordance with the procedure being followed in
this instance, the application to amend the town planning
scheme is made to the Minister by the local authority acting
under s.33(5) of the Act. Section 33(5)(k) of the Act provides
that, after examining the application, the Minister is to
submit it, together with his recommendation, to the Governor in
Council, who may reject or approve it wholly or in part. The
relevant alteration in the zoning is ultimately effected by
publication of an Order in Council notifying the approval of
the Governor in Council to the appropriate amendment in the
town planning scheme : see s.33(5)(l). In this instance

approval was so notified by Order in Council dated 8 October

1987 that was published in the Gazette on 17 October 1987.

The appellant's submission is that the Council's omission, after the objector appeals had been dismissed, to decide the application by confirming its earlier resolution to grant approval had the effect of invalidating the amendment to the town planning scheme notified in the Gazette. In answer to this, the respondents advance two alternative arguments.

First, they say that, whether or not there was a subsequent formal resolution deciding the application, the Council plainly approved the application by its acts and conduct after the appeals were dismissed; secondly, that any ensuing defects in the rezoning process were in any event, cured by the operation of the statutory provisions contained in ss.4(4)(v) and 4(4)(vi) of the Act, and in s.4 of the Constitution (Executive Actions Validity) Act 1988.

With respect to the first of these matters, it was submitted by the appellant that there was no resolution of the first respondent Council finally approving the application, and that, as a statutory corporation, the Council was not capable in law of acting except by resolution : see Russell v. Brisbane City Council [1955] St.R.Qd. 419, 431. In view of what was said by Windeyer J. in Brickworks Ltd. v. Warringah Corporation (1963) 108 C.L.R. 568, 576, it may be more accurate to say that a decision of a body corporate like the Council is ordinarily to be given by resolution at a duly convened meeting.

Here, however, the respondents are able to point to a rezoning deed dated 16 September 1987 (ex. 24) that was executed by both the Council and Haltiffin. It recites various facts and events including the original resolution of the Council dated 10 April 1987 to approve the rezoning application, and the request of Haltiffin as owner that the Council forward the application for appropriate amendment of the town planning scheme to the Minister for approval by the Governor in Council. By cl.1 of the deed the Council covenanted to proceed to make the relevant application to the Minister. There were other covenants including one in cl.3, by which Haltiffin agreed to provide security in the amount of some $20,963 to cover payment of sewerage headworks charges in relation to the proposed development.

The deed embodies the usual testimonium clause reciting it to have been sealed by the parties, followed by a declaration attesting that it was given under the corporate seal of the Council under the hands of the Mayor and Town Clerk. By virtue of s.46 of the Property Law Act 1974 (cf. s.19(i)(ii) of the Local Government Act 1936) a deed in that form is deemed to have been duly executed. See also Norton on Deeds, 2nd ed., at 25. According to Grant : The Law of Corporations (1850), at 55:

"A corporation aggregate expresses its will, wherever strangers are concerned, by its common seal; and in general nothing of importance can be done by a corporation except under its seal".

Although the second limb of this proposition has now been largely eroded by statute, the first limb continues to represent the law. The deed of 16 September 1987 is thus a formal expression of the will of the Gold Coast City Council approving the application for rezoning of Lot 3 and agreeing to make application to the Minister for an amendment to the town planning scheme. If it were necessary to do so, it would be possible to view the deed as stating the grounds of the decision, and its delivery as notification in terms of s.33(18)(p).

This would serve to dispose of the question raised by the appellant; but it is convenient also to consider the second argument advanced by the respondents in answer to the appellant's submission. Section 4(4) of the Local Government Act provides:

"(v) No Proclamation or Order in Council purporting to be made under this Act, and being within the powers conferred on the Governor in Council, shall be deemed invalid on account of any non-compliance with any of the matters required by this Act as preliminary to the same."

Section 4(4)(vi) is as follows:

"(vi) All Proclamations and Orders in Council made or purporting to be made under this Act when published in the Gazette shall have the same force and effect as if they were enacted in this Act and shall be judicially noticed, and shall not be questioned in any proceedings whatsoever, and such publication shall be conclusive evidence of the power and authority to make the Proclamation or Order in Council so published and of all matters contained therein."

It is not immediately evident why, whatever deficiency there might have been in the steps leading to it, the Order in Council of 8 October 1987 by which the town planning scheme was amended should not be protected from invalidity by either or both of paras.(v) and (vi) of s.4(4) of the Act. As to para.(v), the Governor in Council is by s.33(5)(k) and s.33(5)(l) invested with a power, exercisable on the recommendation of the Minister, to approve of an amendment to a town planning scheme. As to para.(vi), even an Order in Council merely "purporting to be made" under the Act is, when published in the Gazette, declared to have the same force and effect as if enacted in the Act itself; in particular, it is not to be questioned in any proceedings, and its publication is to be conclusive evidence of the power to make it.

The appellant's response is, first, to rely on the line of authorities considered in A-G v. City of Geelong [1989] V.R. 641, 655-658, to the effect that provisions in the form of s.4(4)(v) protect from invalidity only against defects that are "preliminary" and not those that are essential to the exercise of the power conferred; and, secondly, to say that, since the particular matter of procedural defects preceding town planning scheme amendments is addressed in s.33(18C), the broader provisions found in s.4(4) of the Act are not to be construed as also extending to that subject.

It seems to us that what is critical to the exercise of the statutory power of the Governor in Council to approve an amendment of a town planning scheme is the recommendation of the Minister identified in s.33(5)(k). It may be going too far to say that all else is merely "preliminary"; but, to regard the defect (if any) in the Council's approval of the rezoning application here as a matter that is essential to the validity of the Order in Council is, in the events as we now know them to have been, surely to elevate form above substance. The Order in Council purported to be made under the Act and was within the powers conferred on the Governor in Council by s.33(5)(k) : cf. Parramatta City Council v. Brickworks Ltd. (1972) 128 C.L.R. 1, 11. The Council plainly intended to approve the rezoning application that was made to it; if in the event it failed to do so, it was only because of the institution of the two appeals that were shortly afterwards dismissed by consent. That is scarcely a basis for saying, as the appellant does here, that the application forwarded to the Minister under s.33(5)(a) was, in consequence, not an application made by the Council. It was, as the primary judge found, forwarded to the Minister by the Town Clerk acting within the scope of his authority. That was done on 18 September 1987, which was also the day on which the rezoning deed was executed.

The appellant's other response to s.4(4)(v) and (vi) is, if anything, less persuasive. The effect of s.33(18C) is to authorise the Governor in Council to direct that it be taken that any provision of s.33 has been complied with. Such a direction may be given if the Minister considers (i) that there has been substantial compliance with that provision, and (ii) that no person has been adversely affected by such non- compliance. Subsection (18C)(1)(b) refers, among other matters, to an application under s.33(5) for amendment of a planning scheme. To that extent it may be said that it caters specifically for a subject that is, at most, addressed only generally in s.4(4)(v) and (vi). What, however, detracts from the appellant's argument on this point is that the terms of s.33(18C) make it plain that that provision is concerned with forms of non-compliance that are detected at a time before the Governor in Council has exercised his or her power under s.33(5)(k) to approve the planning scheme amendment. Subject to the safeguards in (i) and (ii) being satisfied, the application or recommendation may thereupon be considered by the Governor in Council "as if there had been full compliance with this section". The field in which s.33(18C) is designed to operate is therefore quite separate from that of the other two paragraphs considered here.

Nothing submitted in reference to paras.(v) and (vi) of s.4(4) demonstrates that either of those paragraphs is inapplicable to the circumstances that are here said to result in the invalidity of the Order in Council amending the planning scheme. In the court below, his Honour applied the observations of Dixon J. in R. v. Hickman, ex parte Fox & Clinton (1945) 70 C.L.R. 598, 615, in relation to a similar clause in Commonwealth regulations:

"Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body."

The Order in Council of 8 October 1987 purported to be made under the Act and, by s.4(4)(vi) its publication in the Gazette on 17 October 1987 is consequently conclusive of the power and authority of the Governor in Council to make it. Any other result would directly contradict the obvious legislative intention, which was that publication of the Order in Council in the Gazette limited the inquiry into the validity of its antecedents.

These conclusions render it unnecessary to deal with the independent curative properties of the Constitution (Executive Actions Validity) Act 1988. The appellant's submissions with respect to that legislation can therefore be considered only briefly. Section 4(1) of the Act declares that an "executive action" (which by s.3 includes the making of an Order in Council, and the granting of any approval) shall not be taken to be invalid by reason only that any procedure prescribed by any Act for the performance of that action has been contravened or not observed. The interpretation advanced by the applicant, would limit the operation of s.4(1) to curing invalidity only where the procedure that has not been observed is one prescribing some act for performance by the Governor in Council. This seems, with respect, to confuse the executive action itself with the procedure to be followed in order for executive action to be performed. It is against the possibly invalidating consequences of deficiencies in the procedure that the protective operation of s.4(1) is directed. In the present case it is readily capable of comprehending not only the Minister's recommendation, but also the need to forward to the Minister the application for rezoning with respect to which the recommendation is made. Each may fairly be described as a procedure prescribed by an Act (as they are by ss.33(5)(k) and 33(5)(l)) for the making and publication of the Order in Council amending the planning scheme. However, as already mentioned, it is unnecessary to express a final conclusion upon this point.

The other major ground of appeal concerns the validity of the development consent given by the Council in respect of the subject land. As previously mentioned, Lot 3 was originally in a Residential A zone. The adjoining parcel Lot 4 was zoned "general commercial". By an application dated 23 February 1989 the second respondent or its predecessor sought the consent of the Council to use Lot 3 for shops by extending the existing shopping centre known as the Runaway Town Shopping Village.

The development application, or the letter accompanying it, recounted that Lot 3 was occupied by a tavern and that a separate application was being made to relocate it to Lot 4.

The separate application, also dated 23 February 1989, sought consent to use Lots 3 and 4 for a tavern, liquor barn, and caretaker's residence, and was accompanied by a plan. The proposal envisaged demolition of the existing residence and the existing tavern on Lot 3, and their replacement on that Lot by a car parking area.

Neither of the development applications attracted objection, and they were both approved by the Council on 2 June 1989. The development consent was subject to conditions, against some of which the second respondent appealed. On 20 October 1989 the appeal was by consent allowed by an order that approved the substitution of other conditions. After the court order had been made, the Council issued a town planning permit in relation to the shopping centre extension on Lot 3.

The appellant contends that the Council resolutions dated 2 June 1989 approving the development applications, together with various consequential resolutions and the town planning permit, are invalid. Essentially the complaint is that the proposed development does not conform to the use permitted in the Special Facilities (Hotel and Commercial Complex) zone to which Lot 3 is subject. It seizes on the fact that the proposal shown on the plan accompanying the development application approved in 1989 departs from the proposal that appeared on the plan accompanying the rezoning application in 1986 that was approved by the Council and the Governor in Council in 1987. In substance, the difference is that, whereas the 1986 plan provided for a hotel on Lot 3, the 1989 plan envisages a car parking area on Lot 3, with the hotel being relocated on Lot 4. That, according to the appellant, means that the land forming Lot 3 will, if developed as proposed, be used for a purpose, namely car parking, that is not the use permitted in that Special Facilities (Hotel and Commercial Complex) zone.

There are several answers to the appellant's contention.

One is that the foregoing account of the second respondent's development is too narrowly expressed and, as such, unduly favours the appellant's contention. Although, in relation to Lot 3, reference has been made only to a hotel and its relocation from that Lot, there will under the 1989 plan continue to be a shopping complex, or a substantial portion of it, on that Lot. The importance of this is that even if there is only a shopping complex or portion of it, but no hotel, on the site, the land is capable of being viewed as used or intended to be used for the purpose permitted in the Special Facilities (Hotel and Commercial Complex) zone. That is because cl.5 of Division II of Part II of the Council's town planning scheme provides that:

"Where ... any land is used or intended for use for more than one purpose, it shall be deemed ... to be used or intended for use for each of those purposes."

The practical effect here is that, because the intended use in that zone is hotel and commercial complex, Lot 3 may lawfully be used for either purpose.

A further answer to the appellant's contention is provided by the definition of "use" in Part 1 of the town planning scheme. It includes "(b) Any use which is ancillary to the lawful use of the premises". The premises may thus be lawfully used for a hotel and for a commercial complex (or for either purpose), or for any use ancillary to such purpose. A car park is a use of land capable of being considered ancillary to the use of land for the purpose of a hotel, or of a commercial complex, or of both of those purposes; and that remains true even if the hotel or commercial complex is not located on the particular parcel of land itself. It is the purpose for which the site is used rather than its actual use, or the presence on it or absence from it of the hotel or complex, that is definitive. See Warringah Shire Council v. Raffles [1979] 2 N.S.W.L.R. 299, 301-302; Argyroponlis v. Canterbury Municipal Council (1988) 66 L.G.R.A. 202, 206; Webb v. Warringah Shire Council (1989) 68 L.G.R.A. 105. Hence, it was open to the primary judge to find as he did that car parking on Lot 3 would be a permissible use of that Lot for a purpose that was ancillary to the hotel proposed for Lot 4.

More broadly his Honour found that the proposal for the 1989 application and plan was an integrated development of Lots 3 and 4 for the purposes of a hotel and shopping complex. On appeal the appellant did not challenge this finding, and there is a substantial body of evidence to support it. Viewing the two parcels of land as constituting a single integrated development has the result that each parcel shares in the purpose or purposes for which the integrated whole is used.

The appellant nevertheless insists that use of Lot 3 as a car parking area was not something to which it was open to the Council to consent having regard to the terms on which approval was granted to the rezoning in 1987.

The Council's original approval dated 10 April 1987 for the rezoning of Lot 3 was expressed in terms that the development was to be "generally in accordance with" plans to be submitted (the "approved plans"). The divergence between the plans submitted with the rezoning application and approved by the Council in 1987, and the plans submitted with the development application in 1989, has been noticed. In the case of a Special Facilities Zone like this, the course of decisions given in the Court below has tended to emphasise that the function of that zone is to accommodate a particular form of development of a particular site. It follows, so the appellant submitted, that it was beyond the power of the Council to authorise departures from the particular form of development associated with the rezoning approval.

Whatever validity might conceivably attach to the appellant's submission in other cases, the question in the present case is governed by the express provisions of cl.13(a) of Part V of the Council's town planning scheme. It provides:

"Where land has been included in the Special Facilities Zone by a rezoning application and where any condition of such rezoning approval referred to approved plans, any development thereon which is not generally in accordance with such approved plans to the satisfaction of the Council, but would otherwise be for a permitted purpose, shall be deemed to be not for a permitted purpose but for a purpose requiring the consent of Council".

The effect is that a development on land included in the Special Facilities zone is not for a permitted purpose under the planning scheme, unless either (i) it is generally in accordance with the approved plans, or (ii) the Council's consent to it is obtained. Here the development proposed in 1989 was admittedly "not generally in accordance with such approved plans ...". Council consent was therefore needed and was given by means of the development approvals granted on 2 June 1989. The reason advanced by the appellant for saying it was beyond the power of the Council so to give that approval is that the 1989 development proposal did not envisage a hotel "on" the land. The argument is based on a literal reading of the word "on", found in cl.13(a) as part of the expression "any development thereon ...", which relates back to the word "land" in the first line of the clause.

However, to insist that the proposed development in the form of a hotel and commercial complex be "on" the land before the power conferred by cl.13(a) can be exercised is to ascribe to the word "development" in that clause an extremely literal and narrow meaning. The "development" that was approved by the Council on 2 June 1989 was the integrated development proposed for both Lots 3 and 4, involving tavern, liquor barn, caretaker's residence, extended shopping area, and car park.

Viewed as an integrated whole this development was "on" Lot 3 as well as on Lot 4 even if the whole of it was not on either Lot. The Council dealt with it as possessing that character, and required as one of the conditions of its consent that title to the two lots be amalgamated in the Register. It is not possible to construe cl.13(a) as precluding the Council from approving such a development, and that remains so even though, as the appellant before us was disposed to persist in repeating, the zone applicable to Lot 3, has what are said to be the particular features apposite the Special Facilities (Hotel and Commercial) zone.

The appellant's challenge to the development approval given by the Council on 2 June 1989 cannot be sustained.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 24 of 1993

Brisbane
[Lewiac v. Gold Coast C.C.]

BETWEEN

LEWIAC PTY LTD

(Applicant) Appellant

AND

COUNCIL OF THE CITY OF GOLD COAST

First Respondent

AND

ERRENMORE PTY LTD

Second Respondent

The Chief Justice
Mr Justice McPherson

Mr Justice Dowsett

Judgment delivered 19/07/93
Reasons for judgment by the Court
APPEAL DISMISSED WITH COSTS.

CATCHWORDSLOCAL GOVERNMENT -

Rezoning application - Whether correct procedures complied with - Whether privative clauses cure alleged defects in procedure - Sections 4(4)(V) & (VI), s.33 Local Government Act (Qld) 1936 - Section 4 Constitution (Executive Actions) Validity Act (Qld) 1988

LOCAL GOVERNMENT - Development application - Whether development conforms with approved use "hotel" and commercial complex.

Counsel:	J. Muir Q.C., with him Mr Stewart for the Appellant
W. Sofronoff Q.C., with him R. Litster for the First Respondent
Solicitors:	Feez Ruthning for the Appellant
Witheriff Nyst for the First Respondent
Minter Ellison Morris Fletcher for the Second Respondent

Hearing Dates: 6th and 7th May 1993