Mackay v Miriam Vale Shire Council
[2008] QPEC 65
•18 September 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Mackay & Anor v Miriam Vale Shire Council [2008] QPEC 65
PARTIES:
ROBERT JOHN MACKAY
and
NOLA IRENE OFFORD
(Appellants)
V
MIRIAM VALE SHIRE COUNCIL
(Respondent)
And
MINISTER FOR INFRASTRUCTURE AND PLANNING
(Co-Respondent)
FILE NO/S:
1466 of 2007 and 1467 of 2007
DIVISION:
Planning and environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
18 September 2008
DELIVERED AT:
Southport
HEARING DATE:
1 February 2008
JUDGE:
Rackemann DCJ
ORDER:
CATCHWORDS:
COUNSEL:
Mr G Allen for the appellants
Mr S Fynes-Clinton for the respondent
Mr M Hinson for the co-respondent
SOLICITORS:
Deacons for the appellants
MRH Lawyers for the respondent
Crown Law for the co-respondent
Introduction
The appellants are the owners and occupiers of a caravan park situated at 1384 Coast Road, Baffle Creek. At all material times the land has been included in the Rural zone under the respondent’s transitional planning scheme. On 14 December 1998, the Council gave a development approval for a material change of use for a 24 site caravan park, subject to conditions (the first approval). In February 2005 this court gave a judgment, by which it was ordered that another development application for a material change of use (for shop, take-away, golf course, bowls club, and an additional 16 caravan sites to the existing 24 site caravan park) be approved, subject to conditions (the second approval). On 24 April 2007 the appellants received enforcement notices, dated 20 April 2007, requiring compliance with certain conditions of the first approval and the second approval. These appeals are against the issue of those enforcement notices.
The issues
The appellants’ points of claim in appeal 1466 of 2007 (which relates to the second approval) set out what were described as three preliminary points raising the following issues:
(i)Whether the enforcement notice was invalid, by reason of being given by the Chief Executive Officer;
(ii)Whether the approval was invalid or of no effect, by reason of the transitional planning scheme having lapsed on 30 June 2004; and
(iii)Whether the development approval was invalid by reason of the first condition attached to it.
The appellants’ points of claim in appeal 1467 of 2007 (which relates to the first approval) also raised the first of those points.
The points would, if resolved in the appellants’ favour, be decisive and were said to be capable of determination without further factual enquiry.[1] They were set down for determination in advance of any final hearing.
[1]Although that was a matter of debate in relation to the third issue.
Were the Enforcement Notices given by the Chief Executive Officer without lawful authority?
Section 4.3.11(1) of the Integrated Planning Act (IPA) provides as follows:
“4.3.11 Giving enforcement notice
(1)If an assessing authority reasonably believes a person has committed, or is committing, a development offence, the authority may give a notice (an enforcement notice) to the person requiring the person to do either or both of the following -
(a)To refrain from committing the offence;
(b)To remedy the commission of the offence in the way stated in the notice.”
The expression “assessing authority” as defined in Schedule 10 to the IPA and, for present purposes, is the local government.
It is common ground that, in this case, the local government resolved, at its ordinary meeting on 17 April 2007, “that Council acts in accordance with legal advice received and issues enforcement notices” but that the notices themselves were not before the Council and it was the Chief Executive Officer of the local government who subsequently signed the notices and caused them to be served.
It was submitted on behalf of the appellants that:
(i)The power given by the statute is a power to “give” an enforcement notice, that is, to deliver, hand over or otherwise serve it.[2]
(ii)It is only the “assessing authority”, in this case the local government, which has the power to “give” a notice.
(iii)Power may be delegated to the Chief Executive Officer under s 472 of the Local Government Act 1993 (LGA), but it is common ground that there was no delegation in this case.
(iv)It follows that the enforcement notices were not validly given by the local government.
[2]See section 39 of the Acts Interpretation Act as to modes of service.
Generally speaking, a statutory power given to an entity cannot be exercised by another, even by a purported delegation. That is however, no more than a prima facie rule of construction. Where the relevant function is purely routine and non-discretionary, there is a positive presumption in favour of allowing the repository of power to act through servants or agents.[3] Whether a power conferred upon an entity may be exercised, on that entity’s authority, by another is always a question of the proper construction of the statute. The appellants contend not that delegation was impermissible, but that delegation was required in order to authorise what the Chief Executive Officer did.
[3]Judicial review of Administrative Action: Aronson and Dyer: 2nd ed pp 257-258.
A local government, like any other corporate body, acts through the agency of those who undertake actions in its name, and on its behalf. In order to deliver an enforcement notice, or to serve it by post or in some other way, it must rely upon someone to carry out those physical actions on its behalf. The issue is whether a delegation is necessary in order to authorise the Chief Executive Officer to do that, or to cause it to be done on the local government’s behalf. That, in turn, depends upon the proper construction of provisions of both the IPA and the LGA.
When the appellants first took issue with the notices being issued under the hand of the Chief Executive Officer, the council’s solicitors asserted that the notices were signed as a means to authenticate them pursuant to s 1106 of the LGA. That was not however, pursued in the preliminary hearing. As was submitted for the respondent, the IPA does not require an enforcement notice to be signed by anyone.
It was submitted, on behalf of the Council, that the appellants’ contentions confuse the role of a person in exercising a local government’s powers, under s 4.3.11(1) of the IPA, as delegate and the role of a person who merely implements a decision taken by the local government. The distinction between delegated authority and the power to implement a decision of the local government is reflected in the LGA.
Subject to some exceptions, the local government may, by virtue of s 472(1) of the LGA, delegate its powers, including by delegation to the Chief Executive Officer.[4] The exceptions, identified in s 472(3), are the power to take disciplinary action against an employee appointed by the local government or where an Act provides that the power must be exercised by resolution. Section 1131(4)(b) of the LGA expressly provides that the Chief Executive Officer has the powers the local government specifically delegates to the Chief Executive Officer.
[4]See s 472(2)(d).
Those are not however, the only powers which the Chief Executive Officer has. Section 1131(4)(a) of the IPA provides that the Chief Executive Officer also has “all the powers necessary for performing the Chief Executive Officer’s role”. That role is described in s 1131(1) as including “the role of implementing the local government’s … decisions”.
Accordingly, the Chief Executive Officer has, by virtue of s 1131(4) of the LGA, both:
(a)All of the powers necessary to implement the local government’s decisions; and
(b)The powers specifically delegated to the Chief Executive Officer.
Section 1136 of the LGA provides that the employees of a local government, under the Chief Executive Officer’s direction, may help the Chief Executive Officer to implement the local government’s policies and decisions. By virtue of s 1132, the Chief Executive may (subject to some exceptions) also delegate powers to another employee of the local government.
The respondent’s written outline of argument elaborates as follows (footnotes deleted):
“9The corporation’s own decision making about the exercise of executive powers is undertaken by the mayor and other councillors of which it is composed. They do so by making decisions, by majority resolution, on questions brought before the meeting.
…
11However, once decisions are taken in the exercise of executive power, they must be implemented, that is, put into effect. Implementation involves no exercise or further exercise of executive power. It is not a deliberative process. The deliberation has been done. It is a process of converting the executive decision of the Council into something which actually physically occurs as required by that decision.”
It was submitted, on behalf of the respondent, that the chief executive officer acted not as an unauthorised delegate of the power of the local government, as assessing authority under s 4.3.11(1) of the IPA, but rather on behalf of the local government as implementer of the council’s decision and, in particular, the decision taken at its ordinary meeting on 17 April 2007. It was submitted that, in these circumstances, the enforcement notices were duly given by the local government.
While the exercise of power under s 4.3.11 of the IPA culminates in a person being served with a notice, that is the result of a deliberative process and the exercise of discretion. In particular:
(i)The power to give an enforcement notice only arises where the assessing authority forms a reasonable belief that a person has committed, or is committing, a development offence (which involves a deliberative process); and
(ii)Even where such a belief is formed, the giving of a notice is discretionary rather than mandatory (as indicated by the word “may” in s 4.3.11(1)).
Since the Chief Executive Officer was not the delegate of the Council for the purpose of exercising the power under s 4.3.11, it was for the Council, in meeting, to address those matters. It is not suggested, at least for present purposes, that the Chief Executive Officer took it upon himself to form a reasonable belief as to whether the appellants had committed or were committing a development offence or purported to exercise a discretion about whether the notices should be given or otherwise purported to act in accordance with a judgment of his own, rather than that of the Council. Rather, the appellants take issue with the Chief Executive Officer assuming responsibility for preparing and serving the enforcement notices. In doing so however, the Chief Executive Officer appears to have been implementing the Council’s decision, in accordance with the power under s 1131 of the LGA, provided the content of the notices prepared and served in order to implement the decision correspond with the true content and effect of the Council’s decision, so that the notices can be said to be those which the Council decided to give[5].
[5]I do not intend to preclude the appellants from litigating any issue as to whether the subject enforcement notices were those which the local government had resolved to issue. That however, was not the focus of the present argument and is more conveniently and appropriately determined in the context of the final hearing. Similarly I do not purport to decide whether the local government in truth duly undertook the deliberative process and properly exercised its discretion.
It was also submitted on behalf of the appellants that, to the extent that the Chief Executive Officer’s actions otherwise fall within s 1131(1) and (4)(a) of the LGA, there is a level of inconsistency with s 4.3.11(1) of the IPA, which the court should resolve in favour of the more specific provision in the IPA. I do not consider that the provisions are inconsistent.
Both the appellants and the respondent sought to reinforce their submissions by reference to s 4.3.11(5) of the IPA, which provides as follows:
“If the assessing authority is the private certifier or the local government, the assessing authority may not delegate its power to give an enforcement notice ordering the demolition of a building”.
Counsel for the appellants submitted that the prohibition on delegation in sub-section 5 supports the conclusion that the power in sub-section 1 is otherwise to be exercised pursuant to delegated authority in the subject circumstances. Sub-section 5 does not lead to that conclusion.
Although sub-section 5 prohibits the delegation of the “power to give an enforcement notice” ordering the demolition of a building, the provision is not simply concerned with who physically delivers a notice or puts it in the post. Rather, the evident purpose of the provision is to ensure that the assessing authority itself carries out the deliberative process and exercises the discretion as to whether or not to give an enforcement notice, where that notice would have the serious consequences of requiring the demolition of a building. Provided it does so, the provisions of the LGA would appear to give the Chief Executive Officer power to implement the local government’s decision. That is not inconsistent with the evident purpose of the legislation.
On the appellant’s approach, it is difficult to see how an enforcement notice could be given by a local government in a case to which sub-section (5) applies. In such circumstances the local authority would be prevented, by that sub-section, from delegating its power to give an enforcement notice and, on the appellant’s approach otherwise, an enforcement notice could not be delivered in the absence of a delegation.
I do not consider that there is a necessary inconsistency between s 4.3.11(1) of the IPA and s 1131(4)(a) of the LGA or that s 4.3.11(1) of the IPA is a proviso to the power of the Chief Executive Officer under s 1131, as was submitted on behalf of the appellants. It is unlikely that parliament intended for the assessing authority itself to personally deliver or otherwise serve an enforcement notice, since the assessing authority will often be a local government, which cannot physically undertake that task, other than through individuals acting on its behalf. In this context, the provisions sit comfortably together, permitting a local government to exercise its statutory powers under s 4.3.11(1) in circumstances where it either does not wish to delegate them or (in the case of s 4.3.11(5)) is prohibited from doing so. The appellant’s approach, which would effectively mandate delegation by a local government, and render it impractical for a local government to exercise the power in the circumstances described in sub-section (5), ought not be accepted.
Did the Transitional Planning Scheme lapse?
The appellants contend that, as and from 30 June 2004, the respondent’s transitional planning scheme lapsed and ceased to have effect. The consequence, it was submitted, is that the development which was the subject of the second approval (on 10 February 2005) was exempt development (rather than assessable development) in respect of which no development permit was necessary and the appellants were not required to comply with the conditions of that approval.
The Council’s 1997 planning scheme came into force on 20 June 1997, under s 2.15(9) of the Local Government (Planning and Environment) Act (the P & E Act). When the IPA commenced, on 30 March 1998, the 1997 scheme was continued in effect as a former planning scheme under s 6.1.2 of the IPA and became a transitional planning scheme under s 6.1.3. As a transitional planning scheme, the 1997 scheme was taken to be an IPA planning scheme until replacement by or conversion to an IPA planning scheme.[6]
[6]Section 6.1.4(1).
As the name suggests, transitional planning schemes are not intended to last forever. They have effect pending replacement by, or conversion to, IPA planning schemes. This is reinforced by s 6.1.11, which places a postponable temporal limit on the operation of such planning schemes. It provides as follows:
“6.1.11 Transitional planning schemes lapse after 5 years
(1)All transitional planning schemes lapse 5 years after the commencement of this section
(2)If the Minister, by gazette notice, nominates a later day for a particular transitional planning scheme to lapse, sub-section (1) does not have effect until the later day.”
By gazette notice given on 20 December 2002, the minister nominated 30 June 2004 as the day for the transitional planning scheme to lapse. There were however, a series of later gazette notices which nominated new and later lapsing days[7].
[7]See Ex 5.
The appellant’s contention is that the minister may only nominate a “later day” under s 6.1.11(2) on one occasion, so that the gazette notice given on 20 December 2002 (nominating 30 June 2004 as the lapsing day) was effectual, but the later gazette notices were not. It was contended that consequently, the transitional planning scheme lapsed on 30 June 2004 and the respondent was thereafter left without an effectual planning scheme. It is this contention which resulted in the Minister for Infrastructure and Planning becoming a co-respondent. The respondent and co-respondent submit that, properly construed, s 6.1.11(2) authorises the minister to give more than one notice.
Section 6.1.11(2) of the IPA does not expressly authorise the minister to exercise the power to nominate a later day on more than one occasion in respect of a particular transitional planning scheme. Subject to a contrary intention however, the provisions of s 6.1.11 ought to be read and understood in light of the Acts Interpretation Act 1954 (AIA). As Gleeson CJ said in Attorney General (Qld) v Australian Industrial Relations Commission[8]:
“Acts of parliament are drafted and are intended to be read and understood, in the light of the Acts Interpretation Act. A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.”
[8](2002) 213 CLR 485 at 492 – 493 para 8.
Section 23(1) of the AIA provides:
“(1)If an Act confers a function or power on a person or body, the function may be performed, or the power may be exercised, as occasion requires.”
Section 32(C) of the AIA provides:
“In an Act –
(a) Words in the singular include the plural; and
(b) Words in the plural include the singular.”
The application of the AIA may be displaced, wholly or partly, by a contrary intention appearing in any Act.[9] However, as senior counsel for the co-respondents submitted:
“Unless such a contrary intention is found in the IPA, s 6.1.11(2) is to be construed on the basis that ss 23(1) and 32(C) of the AIA are directly relevant, that s 6.1.11(2) was enacted in the light of s 23(1), and accordingly the power is exercisable more than once: see Pfeiffer v Stevens (2001) 209 CLR 57 at 63-64 [20] and 65 [25] per Gleeson CJ and Hayne J.”
[9]Section 4 of the AIA.
A contrary intention may appear from the express terms of a legislative provision, or by necessary implication from the provision or from the general character of the legislation[10]. There is nothing in the express terms of s 6.1.11(2) which reveals a contrary intention. An express limitation on the number of times the power could be exercised could easily have been formulated, had the legislature been minded to limit s 6.1.11(2) in that way. Indeed there are other provisions of the IPA which contain such a limitation in relation to other matters[11].
[10]See Pfeiffer v Stevens (supra) at 73 [56] per McHugh J.
[11]See ss 3.3.6(7), 3.5.7(3) and 3.5.18(2).
A contrary intention does not arise by necessary implication from s 6.1.11. It was contended, on behalf of the appellants, that the language of the section suggests that the power in s 6.1.11(2) once exercised, is exhausted. It was submitted that, by purporting to exercise the power on multiple occasions, the Minister attempted to change the date for lapsing in sub-section (2), whereas the power is to alter the date upon which s 6.1.11(1) takes effect.
The power which the Minister may exercise under s 6.1.11(2) is the power to nominate a later day for a particular transitional planning scheme to lapse. Where a later day is nominated it is the statute which provides (in sub-section (2)) that sub-section (1) does not have effect until the later day. Each nomination is an exercise of the same power under s 6.1.11(2) and the effect of nominating a revised “later day”, even on a number of occasions, remains the same, that is to postpone, or further postpone,[12] the effect of s 6.1.11(1) until the later day. The language of the provision does not necessarily imply that the effect of sub-section (1) may not be postponed by more than one nomination under sub-section (2).
[12]Where sub-section (1) has not taken effect, by reason of the nomination of a “later day”, the transitional planning scheme remains in force and there is no impediment to the effect of sub-section (1) being further postponed by a subsequent nomination. That is so even if the subsequent nomination occurs after the five years referred to in sub-section (1), provided the subsequent nomination occurs before sub-section (1) has come into effect pursuant to the earlier nomination.
Counsel for the appellants also pointed to differences in language between s 6.1.11 of the IPA and s 860(2) of the LGA, which was considered in Pfeiffer v Stevens, and which required an interim local law to include a sunset provision stating the law will expire:
(a) six months after its implementation; or
(b) at the end of a longer period gazetted by the Minister.
Some reliance was placed, in the oral submissions of counsel for the appellants, on the absence of the disjunctive “or” at the end of s 6.1.11(1), as supporting a conclusion that the power in s 6.1.11(2) cannot be exercised on more that one occasion without changing the nature of the power to be exercised. It might be noted that, as Gleeson CJ and Hayne J observed in Pfeiffer v Stevens[13], paragraphs (a) and (b) of s 860(2) of the LGA are not strictly disjunctive.
[13]At pg 63.
I do not consider however, that the exercise of the power on multiple occasions changes the nature of the power so exercised. I accept the submissions of senior counsel for the co-respondent, to the effect that the difference in language does not lead to a different conclusion and, in particular, does not lead to the conclusion of a necessary implication that the Minister may only exercise the power to nominate a later day once.
Counsel for the appellants also relied upon the context in which s 6.1.11(2) appears in the IPA. It was submitted that a construction of s 6.1.11(2) which limits the operation of the Minister’s power, so that it can be exercised only once, conforms with the “transitional” nature and purpose of chapter 6 of the IPA and provides a clear “end date” for transitional planning schemes. It was submitted that otherwise there would be nothing to prevent an open-ended, uncertain and indefinite series of extensions resulting in transitional arrangements becoming de facto permanent ones. It was further submitted that if s 32C of the AIA were applied to the construction of s 6.1.11(2) of the IPA, the character of the legislation would be fundamentally changed, since “an open-ended and uncertain duration for the continuation of planning schemes made under the repealed P&E Act would not advance the purposes of the IPA and does not give effect to the “transitional” nature of this provision”.
Somewhat similar arguments were advanced unsuccessfully in Pfeiffer v Stevens (supra), which counsel for the appellants sought to distinguish, on the basis that the relevant statutory provision contemplated that an interim local law would only operate against the background of progress towards the making of a local law. It was pointed out that the IPA does not have an express requirement to that effect. It does not follow however, that the IPA evinces a “contrary intention” for the purposes of the AIA.
It has already been observed that transitional planning schemes are, as the name suggests, intended to operate in the interim period pending their replacement or conversion into an IPA planning scheme. The explanatory notes, to which reference was made in the appellants’ submissions, confirm that the five year period referred to in sub-section (1) was included to provide local governments and the State with adequate time to transition to the new system and that five years was considered to be an acceptable time, given the cost and complexity of preparing planning schemes.
The IPA:
(a) Gives continuing effect to former planning schemes as transitional planning schemes[14];
[14]Sections 6.1.2 to 6.1.4.
(b) Provides for the lapse of transitional planning schemes on 30 March 2003[15];
[15]Section 6.1.11(1).
(c) Gives power to make an IPA planning scheme[16] or to amend a transitional planning scheme and convert it to an IPA planning scheme[17];
[16]Section 2.1.5 and Schedule 1.
[17]Section 6.1.8.
(d) Gives power to the Minister (where satisfied that it is necessary in order to protect or give effect to a State interest) to direct a local government to make or amend a planning scheme[18] and, in default of compliance, gives power to the Minister to make or amend a planning scheme[19];
(e) Gives power to the Minister to nominate a later day for a particular planning scheme to lapse.
[18]Section 2.3.2(3).
[19]Section 2.3.3(1).
The power to nominate a later lapsing day for a particular transitional planning scheme is an integral (and desirable) aspect of the IPA regime. The creation of a new IPA planning scheme or the amendment of a transitional planning scheme to convert it to an IPA planning scheme is not an uncomplicated or straightforward exercise and includes public consultation and consideration of State interests[20]. There is obvious potential for any fixed “deadline” to be passed. As is evident from a perusal of the gazette notices in exhibit 5, Miriam Vale Shire’s transitional planning scheme was not the only one in relation to which the Minister nominated a later day or did so on more than one occasion. The nominations published in the gazettes of 20 December 2002 and 18 June 2004 related to the transitional planning schemes of more than one hundred local governments, although the nominations published in later gazettes were fewer in number.[21]
[20]See Schedule 1 of the IPA.
[21]See also the annotations to s 6.1.11 in “Planning and Development Queensland” by Fogg, Meurling and Hodgetts.
In the absence of an appropriate power to nominate a later lapsing day, a particular local government may see its transitional planning scheme lapse in circumstances where there is not yet an IPA planning scheme to replace it, leading to a “vacuum” in planning at the local level. That would be a serious consequence which is difficult to reconcile with the Act’s purpose of seeking to achieve ecological sustainability by, amongst other things, co-ordinating and integrating planning at the local, regional and State levels[22]. As was submitted on behalf of the co-respondent, the transition which the IPA provides for is a transition to a regime of coordinated and integrated planning, not to a regime where local planning is non-existent.
[22]Section 1.2.1.
The evident purpose of s 6.1.11(1) is to encourage proper expedition, while sub-section (2) allows for cases where the five year period proves inadequate. The appellants’ submissions fail to demonstrate why the exercise of power under s 6.1.11(2) is consistent with the statutory regime, while its exercise on more than one occasion would necessarily be inimical to it.
The submission that multiple notification of later days for the lapsing of a particular transitional planning scheme may result in transitional arrangements becoming de facto permanent ones, fails to recognise that, as with any statutory power, that granted by s 6.1.11(2) is only exercisable, on each occasion, for the purposes and objects for which it is conferred.[23]
[23]Pfeiffer v Stevens (supra) at 71.
It is not difficult to imagine reasons why the Minister may have seen fit, in a particular case, to notify a further (and later) lapsing day. The most likely reason is that the process of preparing a new IPA planning scheme or converting a transitional planning scheme to an IPA planning scheme was taking longer than expected. It would be surprising if the legislature had overlooked such an obvious possibility or not intended to make provision for it.[24]
[24]See Pfeiffer v Stevens (supra) per Gummow CJ and Hayne J at pg 64.
As Mr Hinson SC submitted, if the argument for the appellants were correct then a possible way to guard against such contingencies would be, on the first and only occasion for nominating a “later day”, to nominate a day which postponed the effect of sub-section (1) for a lengthy period. That would not necessarily encourage expedition or do so as effectively as the exercise of the power on multiple occasions, each of which has the effect of postponing the effect of sub-section (1) for a shorter period.[25]
[25]See Pfeiffer s Stevens per Gleeson CJ and Hayne J at pg 64-65, per McHugh J at 73.
I do not consider that the construction of s 6.1.11(2) consistently with sections 23(1) and 32C of the AIA would fundamentally change the character of the legislation. I also do not consider that a “contrary intention” appears, either expressly or by necessary implication, so as to justify construing s 6.1.11(2) otherwise than in accordance with those provisions of the AIA. It follows that the power under s 6.1.11(2) may be exercised on more than one occasion with respect to a particular transitional planning scheme.
It was not suggested that the Minister’s decision to nominate a later day was invalid on any basis other than the fact that it had already been exercised.
Was the 2005 approval invalid?
The second approval, which authorised, amongst other things, the addition of 16 caravan sites to the then existing 24 site caravan park, was subject to conditions. The first provided:
“The development is to be completed generally in accordance with plan no. 13-115 prepared by Levi Sergiacomi & Associates Pty Ltd except where varied by the following conditions.”
That is one of the conditions which the Council asserts has not been complied with. In particular, the Council asserts that the matters which have not been constructed or carried out are the construction of an access road shown on the plan, including entrance works, the construction of other internal roads (to the extent not already constructed) and the provision of vegetative buffers. The appellants’ argument does not however, focus on any of those aspects of the plan.
In addition to the above matters, the plan shows an “existing caravan park area” and a “proposed extension”. Numbered boxes appear within each of those areas. Within the “existing caravan park area” there are 12 numbered boxes together with two other boxes which are labelled “F” and “M”, which might be thought to relate to male and female amenities. Eight numbered boxes appear in the “proposed extension” area. The appellants contend that condition (1) rendered the entire development approval unlawful and invalid (and hence incapable of supporting an enforcement notice based upon the failure to comply with conditions) because:
(i) It was not relevant or reasonably required in respect of the proposal to which the application related;
(ii) It had the effect of significantly altering the development in respect of which DA189/03 was made;
(iii) The condition is patently inconsistent with the proposed development of an additional 16 sites to the existing 24 caravan sites whereupon the caravan park ought to have a total of 40 caravan sites whereas Plan 13-115 permitted development of only 20 sites and ignored the existence of the 24 caravan sites previously approved in December 1998;
(iv) The said condition was impossible for the appellants to comply with given the existing development of 24 caravan sites in the caravan park;
(v) The entire approval dated 10 February 2005 was rendered meaningless and of no effect because:
(a) The second condition was fundamental to the entire approval;
(b) A condition cannot be severed from the approval whilst leaving the balance of the approval intact.
The construction of development approvals is an objective exercise generally carried out with reference to no or limited extrinsic evidence.[26] The appellants’ contentions however, raise factual issues which would be more appropriately and conveniently determined upon a substantive hearing. For example, the appellants’ contention that it is impossible to comply with condition (1) is premised on the assumption that each of the numbered boxes on the plan accommodates only one caravan site. Given that 12 numbered boxes appear in the area depicted as the existing (24 site) caravan park area and eight numbered boxes appear in the area for the proposed 16 site extension, an obvious possibility, on the face of the approval, is that each numbered box accommodates two caravan sites. Counsel for the appellants ultimately acknowledged that an enquiry as to whether development could occur “generally in accordance” with the plan may involve factual matters beyond the scope of the preliminary hearing[27]. I would not be prepared to resolve this issue in the appellants’ favour upon this preliminary hearing.
[26]See Hawkins and Izzard v Permarig Pty Ltd v BCC (No 1) [2001] QPELR 414; but see also Brisville v Brisbane City Council [2007] QPEC 63 at [7]-[9].
[27]T49.
It was submitted on behalf of the Council, that the issue could nevertheless be resolved in its favour at this stage on the basis that, in any event, it is not open to the appellants, in the context of these proceedings, to challenge the validity of the development approval.
The development approval was the subject of a judgment given by this court, constituted by Senior Judge Skoien, on 10 February 2005. By that judgment it was ordered that the appeal to this court be allowed and the development application approved, subject to specified conditions, including condition (1). The parties to that proceeding were Robert Mackay and Nola Offord as appellants and the Miriam Vale Shire Council as respondent. The judgment was not the subject of any appeal. It was submitted, on behalf of the Council, that the determination of condition (1) as a valid and operative condition is res judicata. [28]
[28]The plea of res judicata applies, except in special circumstances, not only to points upon which a court was actually required by the parties to form an opinion and produce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR at 598, citing Henderson v Henderson.
The doctrine extends to any tribunal which has jurisdiction to finally decide a question arising between the parties. It must however, be under a duty to act judicially in the exercise of the power to decide. It does not apply to a determination that is purely administrative in character. It was submitted on behalf of the appellants that this court’s judgment could not stand in the way of a collateral challenge to the validity of condition (1) in these proceedings, because the court’s previous judgment was of an administrative, rather than a judicial character.
By reason of s 4.1.1 of the IPA, the Planning and Environment Court, as formally established, was continued in existence. The court is a court of record[29], is constituted by judges[30], conducts hearings in accordance with rules of court and judicial directions[31], generally in open court[32], where evidence is taken and recorded[33]. It has the power to punish for contempt[34] and its decisions are final, in the relevant sense. By reason of s 4.1.2(3):
“Subject to Division 13, every decision of the court is final and conclusive and is not to be impeached for any informality or want of form or be appealed against, reviewed, quashed or in any way called in question in any court.”
Division 13 provides for appeals from this court to the Court of Appeal.
[29]Section 4.1.1(2).
[30]Section 4.1.8.
[31]Section 4.1.49.
[32]Section 4.1.3.
[33]Section 4.1.7.
[34]Section 4.1.5.
The appellants’ contention is not that all decisions of this court are administrative in character but that its decision on an appeal with respect to a development application has that character, where the court’s decision has the effect of changing the Council’s decision on the application at first instance. Reliance was placed on s 4.1.54 which provides, in part, as follows:
“4.1.54 Appeal decision
(1)In deciding an appeal the court may make the orders and directions it considers appropriate;
(2) Without limiting sub-section (1), the court may:
(a) confirm the decision appealed against; or
(b) change the decision appealed against; or
(c)set aside the decision appealed against and make a decision replacing the decision set aside.
(3)If the court acts under sub-section (2)(b) or (c), the court’s decision is taken, for this Act (other than this decision[35]) to be the decision of the entity making the appealed decision.
…”
[35]The word “decision” may be a typographical error which was intended to read “division”.
The appeal which was before Senior Judge Skoien was an appeal by the appellants against the Council’s refusal of a development application. The judgment of this court, by allowing the appeal and ordering that the application be approved subject to conditions had the effect described in s 4.1.54(2)(c). Accordingly, the decision is one which “is taken” for the purposes of the IPA, to be the decision of the local government.
I do not consider however, that it follows that the judgment of the court is subject to challenge in these proceedings. Section 4.1.54(3) does not equate proceedings in the court with the local government’s administrative function in assessing and deciding a development application. It simply provides that the court’s decision is “taken” for the purposes of the IPA to be the decision of the local government. That does not mean that the decision ceases to be a judgment of the court nor does it convert the character of the court proceedings and judgment from judicial to administrative. The appellants’ submission confuses the characterisation of a judicial determination of a controversy brought to the court, as a court, by the parties, with the effect which the judgment is “taken” to have, in superseding the decision from which the appeal was brought. Section 4.1.54(3) does not avoid s 4.1.2(3) or otherwise permit the validity of this Court’s previous judgment to be challenged in these proceedings.
Conclusions
I conclude that:
1. Service of the enforcement notices upon the appellants was not invalid by reason of there being no delegation by the local government to the Chief Executive Officer of its powers under s 4.3.11(1) of the IPA.
2. The Minister had the power, under s 6.1.11(2) of the IPA to nominate a “later day” for the respondent’s transitional planning scheme to lapse and had the power to do so on more than one occasion.
3. This court’s judgment, whereby the second development approval was granted, was final and conclusive and is not, by reason of s 4.1.54(3), subject to challenge in this proceeding.
I will give the parties the opportunity to be heard in relation to the appropriate minutes of order.
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