Loakes v Logan City Council

[2011] QPEC 144

[2011] QPEC 144

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 700 of 2010 and
P & E Appeal No 4802 of 2011

LISA LOAKES	Appellant
and
LOGAN CITY COUNCIL	Respondent

BRISBANE

..DATE 05/12/2011

JUDGMENT

CATCHWORDS

PLANNING AND ENVIRONMENT – DECLARATION AS TO WHETHER DEVELOPMENT IS SELF ASSESSABLE OR CODE ASSESSABLE - COMMUNITY CARE CENTRE – COMMUNITY PURPOSES DOMAIN – WHETHER DEVELOPMENT COMPLIES WITH ACCEPTABLE SOLUTION AS TO DENSITY - WHETHER THE COURT SHOULD CONSTRUE THE ACCEPTABLE SOLUTION AS IF THE CURRENT WORDING WAS DELETED AND SUBSTITUTED WITH THE WORDS “NO ACCEPTABLE SOLUTION PROVIDED” – WHETHER THE COURT MAY READ WORDS INTO STATUTE

HIS HONOUR:  In this matter the primary issue for determination today is whether a proposal for a community care centre is self-assessable or code assessable.

The land upon which the centre is proposed falls within the Community Purposes domain under the planning scheme for the Gold Coast.  That planning scheme remains of relevance because the land was once part of the Gold Coast before being transferred to Logan City.  It is common ground that the relevant planning instrument remains the planning instrument for the Gold Coast.

In accordance with the provisions applicable to the Community Purposes domain, the proposal will be self-assessable if it complies with the acceptable solutions to the first five performance criteria in the Community Purposes Domain Place Code.  It is common ground that it complies with the acceptable solutions to performance criteria 1, 2, 4 and 5. 

The provision which remains in issue is that dealing with accommodation density in AS3.  That provision and its corresponding performance criteria is as follows; performance criteria 3,

"Accommodation density must be low, to maintain and enhance the community service nature of the land".  AS3, "The dwelling density does not exceed one detached dwelling per Lot".

On its face the acceptable solution is quite straightforward and capable of ready application.  It is common ground that the density of the proposal does not exceed that in AS3, read in a literal way, because the proposal does not contain any detached dwelling.  Rather, it is a use of a different kind.  In contending that the proposal is, nevertheless, code assessable the Council invites the Court to adopt something other than the literal construction of AS3. 

The structure of the performance criteria and acceptable solutions in the relevant planning scheme is such that a particular acceptable solution or solutions are provided with respect to each performance criteria except where the acceptable solution states, "No acceptable solution provided".  Where that occurs, the planning scheme provides as follows: "Where no acceptable solution is provided for performance criterion in the code, development must provide its own solution to meet that particular performance criterion".

Counsel for the Council contended that the provision should be interpreted as if AS3 provided, "No acceptable solution provided" in lieu of the words which are actually used. He frankly acknowledged the difficulty of the task of persuading the Court to depart from the otherwise clear words in the acceptable solution, but relied upon the approach of Lord Diplock in Wentworth Securities Limited v. Jones [1980] AC 74 at 105 to 106 where his Lordship set out the following conditions upon which a Court could read words into a statute:

"First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.  Unless this third condition is fulfilled, any attempt by a Court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.  Such an attempt crosses the boundary between construction and legislation.  It becomes a usurpation of a function which under the constitution of this country is invested in the legislature to the exclusion of the Courts".

This test has been discussed in a number of authorities and was recently cited by Chesterman JA in Metroplex Management Pty Ltd v. Brisbane City Council and Ors [2010] QCA 333. Chesterman JA there also cited passages from the judgment of Spigelman CJ in R v. Young (1999) 46 NSWLR 618 in which Spigelman CJ reiterated that the Court could not read words into an Act. The process, he said, was one of construction of the words actually used, and the reformulation of a provision by the addition of words should be understood as a way of clearly expressing the Court's conclusion.

In R v PLV (2001) 51 NSWLR 736 Spigelman CJ added: "I am unaware of any authority in which the Court has 'introduced' words to or 'deleted' words from an Act, with the effect of expanding the sphere of operation that could be given to the words actually used. This was the actual issue in R v Young. There are many cases in which words have been read down. I know of no case in which words have been read up."

Counsel for the Council also quite properly drew my attention to the Court of Appeal's decision in Witheyman v Simpson [2009] QCA 388, in which the primacy of the language used in the statute for the determination of its meaning was affirmed. He acknowledged the difficulties which these authorities place in the path of his argument, but submitted that it was still possible to consider interpreting AS3 as if the words there used were replaced by entirely different words.

In that regard, he submitted that an approach to construction which inserted new words was left open by Holmes JA in Sevmere Pty Ltd v Cairns Regional Council [2001] 2 QdR 276 at 295. He referred also to the passage from the reasons of McHugh J in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113 where his Honour said, "As a result, on rare occasions a Court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose."

He also referred to the reasons of French CJ and Bell J in Minister v SZJGV (2009) 238 CLR 642 where at 652 their Honours made reference to the approach of Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution [2001] WLR 586 where his Honour referred to the Third Edition of Cross' statutory interpretation, which said: "In omitting or inserting words the Judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role."

While it may well be open to the Court in the context of a particular case to "read out" certain words and "read in" others, the process must be one of construction.  While the Council's approach relies upon the Wentworth Securities test it is difficult to see that it is satisfied in this case.

In so far as the first two tests are concerned, that is the identification of the mischief, and satisfaction that the Parliament has by inadvertence overlooked an eventuality which must be dealt with if the purpose is to be achieved, counsel for the Council referred to the limited scope of the acceptable solution, as formulated, in that it relates only to detached dwellings.  It was submitted that the drafter of the provisions could not have intended the provision to be so limited when most forms of development which fall within the self-assessable category would not involve detached dwellings. 
It may readily be accepted that the acceptable solution is limited by its reference to detached dwellings only.  However, this is hardly surprising when the provision is read in context.

The Community Purposes domain is only one of many domains provided for within the planning scheme.  There are a multiplicity of codes which relate to other domains.  Most of those codes, although not all, contain provisions with respect to accommodation density.  When one looks at those provisions, in all cases the acceptable solutions provide a particular measure of density, rather than simply requiring an applicant to demonstrate its own solution. 

More particularly, however, the most common way of dealing with accommodation density in the planning scheme is by nominating acceptable solutions which relate to either detached dwellings or dwellings and which provide a ratio of such detached dwellings or dwellings per lot or per site area.
The second-most common way is by reference to a particular overlay map.

Accordingly, there is nothing novel about the choice of the mechanism for dealing with accommodation density which appears in AS3.  The approach that has been taken by the drafter is quite a common one in terms of this planning scheme.  That is, a decision has been made to provide for a particular density in order to satisfy an acceptable solution and the density measure is one which is limited to detached dwellings, which is a common way in which density has been dealt with throughout the planning scheme.

Whilst that might mean that not many forms of self-assessable development will fall foul of this particular acceptable solution, since most won't involve any detached dwellings and therefore won't exceed the ceiling of one detached dwelling per lot, that does not mean that the acceptable solution has no work to do.

There may be some forms of self-assessable development which involve a detached dwelling.  In any event it must be recognised that PC1 to PC5 do not apply solely to self-assessable development.  PC1 to PC5 are part of PC1 to PC15 which apply to code as well as impact-assessable development.  These provisions will potentially be applied to a number of forms of development which are impact-assessable and which will potentially involve more than one detached dwelling per lot.

For these reasons it is difficult to see that, as a matter of construction, the context leads to the conclusion that words need to be deleted and other words inserted in order for the provision to accord with the legislative intent.  The provision is quite straightforward.  It is consistent with the triggers used in other domains and whilst the council may see it as not sufficiently robust, it has work to do.

In any event, even if the first two limbs of the approach in Wentworth Securities was to be found to apply then the third comes into focus.  It requires that it be possible to state with certainty the additional words.  If it is assumed, as I think it must, that the drafter wished to have a particular measure stated in the acceptable solution to accommodation density, and if it is also assumed that the drafter would have wished to have one which had greater rigour, in the sense that it applied a ceiling not just to detached dwellings but to other types of accommodation, then one is left at a loss to know what particular alternative measure would have been settled upon. 

As I have already observed the formulation in fact used is similar to the formulations which have otherwise been used in the planning scheme.  The next most common mechanism was a reference to particular overlay maps but it is not suggested that words referring to an overlay map could or should be inferred here.

What mechanism would then have been decided upon?  The council really does not put forward any solution or any answer to this question, rather then being able as a matter of construction, to know what the particular mechanism would have been, the council is thrown back on simply saying that the drafter would have nominated no acceptable solution, thereby giving no specific mechanism for the determination of density which should be taken to satisfy the provision.

It is difficult to determine that this is the approach which the drafter intended or would have intended.  It is not an approach which the drafter took to formulate any acceptable solutions to any other accommodation density provision in the planning scheme and there is no reason to speculate that it would have been the approach taken here.

It was pointed out, on behalf of the council, that this Court has regularly acknowledged that planning schemes are not drawn with the precision of other statutory instruments.  He suggested that this perhaps allows for a somewhat more robust approach to be taken.  However, the process must ultimately be one of construction, not legislation.  Even it if were right to conclude that the acceptable solution chosen by the drafter is not sufficiently robust, because it nominates a ceiling by reference only to detached dwellings, that does not permit the Court to simply make up another test which it thinks would do the job or simply to read the provision as if there were no acceptable solution provided.

To read the provision as if the words currently used in AS3 simply do not exist but were replaced by the words "no acceptable solution provided", in my view, falls over the boundary of construction into legislation.  The assertion is, to adopt the language used by Holmes JA in Sevmere, too far reaching to be too much at variance with the language used by the Legislature.  If the provision is thought by the council not to be sufficiently robust then it is a matter for amendment of the scheme.

I do not consider that the scheme should be construed as if the words appearing in AS3 were replaced with the word "no acceptable solution provided".  It follows that the proposal does meet AS3, because it does not have a dwelling density which exceeds one detached dwelling per lot.  It is common ground that the proposal otherwise complies with the acceptable solutions to PC1 through to 5.  Accordingly I find that it is a self-assessable development.

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HIS HONOUR:  I make a declaration in terms of paragraph 1 of the originating application.

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HIS HONOUR:  In relation to appeal 700 of 2010 that appeal is dismissed on the limited ground that the appellant no longer wishes to pursue that form of development.

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