Makucha v Albert Shire Council

[1992] QCA 94

IN THE COURT OF APPEAL	[1992] QCA 094
SUPREME COURT OF QUEENSLAND	No. 101 of 1991
Before the Court of Appeal
Mr Justice Pincus Mr Justice Davies Mr Justice Williams
BETWEEN:

PAUL MAKUCHA

Appellant

AND:

THE COUNCIL OF THE SHIRE OF ALBERT

First Respondent

AND:

AOSCO PTY LTD

Second Respondent

REASONS FOR JUDGMENT - PINCUS J.A. and DAVIES J.A.

Delivered the 13th day of May 1992

The appellant was the unsuccessful applicant in the Planning
and Environment Court for declarations pursuant to section
2.24 of the Local Government (Planning and Environment) Act
1990-1991. The declarations sought were in the following
terms:

1.    that rezoning applications Nos. 2445 and 2446 lodged by Aosco Pty Ltd with the Shire for the Council of Albert were not duly made.

2.    that such applications are incapable of being cured by amendment.

Both applications for rezoning were lodged with the Albert
Shire Council on 11 September 1991. Both were to rezone
land in that Shire from the Special Facilities/Ski Lake,
Roller Skating & Associated Administration, Club Facilities,
Restaurant & Take Away Food Outlets Zone to the Special
Facilities/Signage and Sightline Zone, and were made
pursuant to Part 4 of the Act which came into force on 15
April 1991.

The learned Planning and Environment Court Judge held that that Court did not have jurisdiction to hear and determine the application for the above declarations. Its jurisdiction is derived from s. 2.24 of the Act which provides in sub-s. (3):-

"The Court has jurisdiction to hear and determine
proceedings for a declaration in respect of -
...

(b) any act, matter or thing to be undertaken in
respect of the planning scheme or the use of
land;
... "

The relevant question was whether the applications for rezoning were acts, matters or things to be undertaken in respect of the planning scheme for the Albert Shire. The learned judge held that they were not because they "are governed by the Act".

The proposed rezoning is an act, matter or thing to be
undertaken in respect of a planning scheme, as well as being
in respect of the use of land. It is true, as the judge
said, that the points taken in the application for
declarations depended on the Act, but the judge's
jurisdiction to grant a declaration did not depend upon the
ground of the attack on the validity of the applications.
In our view, the declarations sought plainly had to do with
the proposed rezonings which were, equally plainly, within
the description in sub-s.(3)(b) quoted above. In our
opinion therefore, the Planning and Environment Court had,
and of course still has, jurisdiction to hear and determine
the application for declarations.
It was common ground before us that the determination of the
application for the declarations involved decisions upon
questions of fact upon which the court below has not
expressed any conclusion. The correct course for us,
therefore, is to remit the matter to the Planning and
Environment Court to determine that application. However,
in the course of determining the question of jurisdiction,
the learned judge decided a question of law which determined
an issue between the parties. As that may result in an
issue estoppel between the parties we propose to express our
view upon that question now in the hope that the parties may
thereby avoid coming back to this Court.

The question arises because of an apparent inconsistency between Division I of Part 2 of by-law 24 of the bylaws of the Albert Shire ("Division I"), which was in existence at the time the Act came into force, and Part 4 of the Act ("Part 4"). Each purports to deal comprehensively with applications for rezoning of land. Division I is headed "Applications for Rezoning"; Part 4 is headed "REZONING AND LAND USE APPLICATIONS". A comparison of the clauses of Division I with sections in Part 4 shows the intention of each to cover the same field.

Clause 1(1) of Division I provides that an application for rezoning shall be made in the form required by the Council and shall be accompanied by an application fee in accordance

with the scale determined by the Council; s. 4.3(3) provides
that such an application shall be on a form determined by
the local authority and be accompanied by the appropriate
fee. Clause 1(2)(a) and (b) provide that the application
shall be in writing signed by the applicant; there is no
similar provision in s. 4. Clause 1(2)(c) also provides
that the application shall be accompanied by the consent in
writing of the registered proprietor if made by a person who
is not the registered proprietor; s. 4.1(2)(d) provides that
the application is to be authorised in writing by the owner
where the application is made by a person other than the
owner. Clause 1(2)(d) also provides that the application
shall set forth twelve specified particulars; s. 4.3(3)(b)
provides that the application shall contain prescribed
information and regulation 7 prescribes twelve categories of
such information. However, neither in form nor in substance
are the particulars and categories identical. The facts
that the particulars required by paragraphs (v), (viii) and
(ix) of clause 1(2)(d) are not required by regulation 7 and
that regulation 7 does not, as paragraph (xii) of clause
1(2)(d) does, allow an officer of the Council to require
further information, gave rise to the question which the
learned judge decided.
Clause 2 provides that an application shall be deemed not to
have been made unless the requirements of clause 1 have been
complied with in full; s. 4.1(2)(b) provides that an
application is to be taken not to be duly made until all the
particulars required by the Act and the planning scheme have
been provided to the local authority together with the
appropriate fee. Clause 3 provides for advertisement as

does s. 4.3(4).

Clause 4 provides that upon the application the Council may
approve it, refuse it or approve it subject to conditions;
so does s. 4.4(5). Clause 5, the last clause in Division I,
sets out a number of specific matters which the Council is
required to take into account in considering the
application; so does s. 4.4(3). The matters are not
identical either in form or substance. Clause 5 concludes
with a provision allowing the Council to consider any other
matters considered by it to be relevant; s. 4.4(3) concludes
with one allowing the Council to consider such other matters
as are relevant.
Thus each of Division I and Part 4 states comprehensively
the requirements of an application for rezoning and the
obligations of a Council in considering and determining that
application; and all of the matters dealt with in Division I
are now dealt with in Part 4, in some cases differently.
Putting aside for the moment some specific provisions of the
Act and regulations which bear on this question, the
intention of Part 4 appears to be to replace Division I.

Section 8.10 of the Act provides in sub-s.(6)(a):-

"Where a town planning scheme is in force in an
area, each town planning by-law and subdivision of
land by-law which is in force immediately prior to
the commencement of this Act in respect of that
area, is, to the extent that it conforms with this
Act, to continue to have force and effect as if it
were part of a planning scheme that had force and

effect under this Act."

Prima facie Division I does not conform with Part 4. The
learned judge determined that clause 1(2) did not conform
with the Act. The argument advanced for the appellant was
that, because particulars required by paragraph (vi), (viii)
and (ix) were not contained in the matters prescribed by
regulation 7 pursuant to s. 4.3(3)(b), to that extent clause
1(2) conformed with the Act. The appellant derived some
support for this submission from regulation 7(1) which,
after setting out in paragraphs (a) to (l) specific

information prescribed pursuant to s. 4.3(3)(b), provided:-

"(m) such other information as may be required by

the Act or by the local authority pursuant to

its planning scheme."

However, in our opinion, because Part 4 indicates an
intention to cover the field formerly covered by Division I
it cannot be said that any part of Division I, to the extent
that it adds to the requirements of Part 4, conforms with
that Part. Nor do we think that regulation 7(1)(m) can be
used to assist in determining that question of conformity.
The question is, in this respect, whether, once s.
4.3(3)(b), as part of a comprehensive scheme, provides for
what information should be supplied, a bylaw, forming part
of a prior comprehensive scheme, providing for information
in that situation continues to have force and effect. In
our opinion it does not. The information formerly required
by clause 1(2)(d), not specifically prescribed pursuant to
s. 4.3(3)(b), is not "other information as may be required
... by the Local Authority pursuant to its planning scheme"
within the meaning of regulation 7(1)(m). That provision,
in our view, relevantly envisages that a local authority
may, pursuant to its planning scheme, require additional
information to that prescribed; clause 1(2)(d) does not
purport to do that.

Section 4.1(2)(b) may be similarly disposed of. It provides:

"An application to which this section applies -
...

(b)  is to be taken not to be duly made until all the particulars required by ... the planning scheme ... have been provided to the Local

Authority ..."

It should not be construed so as to revive part of a comprehensive scheme replaced by Part 4.

In summary, our view on the substantive point is that the provisions in the by-law setting out the details of what is to be contained in rezoning applications are no longer in force, having been replaced by the requirements of Part 4 of the Act; an application which does not in any respect comply with Division 1 of the by-laws headed "Applications for Rezoning" is not for that reason invalid.

In our opinion, therefore, the learned judge correctly decided that clause 1(2) did not conform with the Act and consequently had no force and effect.

The appeal should be allowed and the matter remitted to the
Planning and Environment Court to be dealt with according to
law. The respondents should pay the appellant's costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 101 of 1991
Before the Court of Appeal
Mr. Justice Pincus Mr Justice Davies Mr Justice Williams
BETWEEN:

PAUL MAKUCHA

Appellant

AND:

THE COUNCIL OF THE SHIRE OF ALBERT

First Respondent

AND:

AOSCO PTY LTD

Second Respondent

REASONS FOR JUDGMENT - PINCUS J.A. and DAVIES J.A.

Delivered the 13th day of May 1992

MINUTE OF ORDER:	Appeal allowed. Matter remitted to the Planning and Environment Court to be dealt with according to law. Respondents ordered to pay appellant's taxed costs of and incidental to the appeal.
CATCHWORDS:	LOCAL GOVERNMENT - TOWN PLANNING - appeal from decision of Planning and Environment Court refusing declaration that rezoning applications not duly made - whether applications were matters to be undertaken in respect of planning scheme - whether requirements of scheme existed when Act came into force - Local Government (Planning & Environment) Act 1990, ss. 2.24(3), 4, 8.10(3), (6)(a), regulation 7
Counsel:	R.R. Douglas Q.C. and M.M. Stewart for Appellant W.L. Cochrane for First Respndent J.J. Haydon for Second Respondent
Solicitors:	Feez Ruthning for Appellant King & Co. for First Respondent Porter Clayton & Co. for Second Respondent
Hearing Date(s):	15 April 1992
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND	No. 101 of 1991
BETWEEN:

PAUL MAKUCHA

Appellant

AND:

THE COUNCIL OF THE SHIRE OF ALBERT

First Respondent

AND:

AOSCO PTY LTD

Second Respondent

__________________________________________________

__

PINCUS JA
DAVIES JA
WILLIAMS J
__________________________________________________

__

Joint reasons for judgment of Pincus J.A. and
Davies J.A. and reasons for judgment of Williams
J., concurring as to the order made, delivered on
the 13th day of May 1992
__________________________________________________

__

"APPEAL ALLOWED. MATTER REMITTED TO THE PLANNING
AND ENVIRONMENT COURT TO BE DEALT WITH ACCORDING
TO LAW.
RESPONDENTS ORDERED TO PAY APPELLANT'S TAXED COSTS
OF AND INCIDENTAL TO THE APPEAL."
__________________________________________________
__

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 101 of 1991

Mr. Justice Pincus Mr. Justice Davies Mr. Justice Williams

BETWEEN:

PAUL MAKUCHA

(Applicant) Appellant

AND:

THE COUNCIL OF THE SHIRE OF ALBERT

(First Respondent)

AND:

AOSCO PTY. LTD.

(Second Respondent)

JUDGMENT - G.N. WILLIAMS J.

Delivered the 13th day of May 1992.

The appellant made application to the Planning and Environment Court for a declaration pursuant to s. 2.24 of the Local Government (Planning and Environment) Act 1990-91 that Rezoning Applications numbers 2445 and 2446 lodged by the second respondent with the first respondent "were not duly made". By the same application a further declaration was sought in terms that those applications were "incapable of being cured by amendment". The learned Judge constituting that court held that the court had no jurisdiction to make the declarations sought, and in consequence the application was dismissed. The principal submission on behalf of the appellant was that on the proper construction of the legislation the court had jurisdiction to determine the application.

Relevant jurisdiction is conferred on the Planning and Environment Court by ss. 7.4 and 2.24 of the Act; sub-s. (3) of the latter is in the following terms:

"The Court has jurisdiction to hear and determine
proceedings for a declaration in respect of -

(a)  any question of construction arising under a planning scheme;

(b) any act, matter or thing to be undertaken in
respect of the planning scheme or the use of
land;
or

(c) any offence defined in section 2.23(1)."
Applications 2445 and 2446 sought rezoning of the land

described therein. Each was brought pursuant to Part 4 of the Act which is headed: "Rezoning and Land Use Applications". It is clear from s. 4.3 that each application was one "to amend a planning scheme". Such an application must comply with the requirements of s. 4.1(2).

So far as the merits of the appellant's proceeding are concerned it is sufficient to say that he was seeking a declaration that neither application was duly made because it did not comply with the relevant formal requirements of the Act, of the Regulations made thereunder, and of the first respondent as set out in the applicable "planning scheme".

The question of jurisdiction comes down to whether or not this is a proceeding for a declaration in respect of any act, matter or thing to be undertaken in respect of the planning scheme or the use of land. The expression "in respect of" has an extremely wide meaning and catches any connection or relation between the two stated concepts (cf. Trustees Executors and Agency Co. Ltd. v. Reilly (1941) V.L.R. 110 at 111). Put in that way it is immediately obvious that a declaration as to the validity of an application to amend a planning scheme or for the rezoning of a particular parcel of land to permit a particular use enlivens the jurisdiction conferred by s. 2.24(3) of the Act. The argument to the contrary advanced by counsel for each of the respondents was that the application was made pursuant to the Act and that the matters going to the merits of the application relied on by the appellant were governed by the Act; in consequence it was said that the question did not arise under or in respect of a planning scheme. It was that argument which found favour in the court below.

Given the wide meaning which must be attributed to the expression "in respect of" and also having regard to the words "the use of land" the conclusion is inevitable that the Planning and Environment Court had jurisdiction. It matters not that the application in question was of a type envisaged by the Act.

This Court cannot, because factual issues are involved, determine the application on the merits. As the Planning and Environment Court has jurisdiction to determine the matter on the merits the appeal should be allowed and the matter remitted to that court to be dealt with according to law.

However, counsel for the appellant submitted that in addition to finding that it had no jurisdiction the learned Judge constituting the Planning and Environment Court made a further ruling on a point of law adverse to the appellant. It was submitted that if this Court did not deal with that aspect of the matter an estoppel would be created at the adjourned hearing. In consequence this Court ought to entertain the appeal with respect to that matter.

It is necessary to refer to some provisions of the Act and Regulations which are rather complicated in order to define the question. As already noted the applications lodged were of the type governed by Part 4 of the Act. It was agreed that each was an application seeking an amendment of a planning scheme and was therefore caught by s. 4.3.

The terms of sub-s. (3) thereof are important:

"An application made under sub-section (1) is to -

(a)  be on a form determined by the Local Authority;

(b) contain the prescribed information;
(c) be accompanied by the appropriate fee."

One finds the "prescribed information" in Regulation 7 of the Local Government (Planning and Environment) Regulations 1991. There are therein prescribed twelve particulars of information which are to be included in such an application; they are followed by a provision in more general terms to the following effect:

"(m) Such other information as may be required by the Act or by the Local Authority pursuant to its planning scheme."

The critical question for present purposes is what is meant by "planning scheme" in that paragraph (m). It was submitted that in accordance with the definition of that phrase found in s. 1.4 of the Act it was to be considered as prospective, and therefore meant a planning scheme approved pursuant to the Act. There is certainly some support for that approach if the paragraph is looked at in isolation, but regard must be had to s. 8.10(3) and (6)(a) of the legislation. Those sub-sections are in the following terms:

"(3)	Each town planning scheme approved by the Governor in Council prior to the commencement of this Act, and which is in force immediately prior to the commencement of this Act is, to the extent it conforms with this Act, to continue to have force and effect as if it were a planning scheme that had force and effect under this Act.
(6)(a)	Where a town planning scheme is in force in an area, each town planning by-law and subdivision of land by-law which is in force immediately prior to the commencement of this Act in respect of that area, is, to the extent it conforms with this Act, to continue to have force and effect as if it were part of a planning scheme that had force and effect under this Act."

In each sub-section the words "to the extent it conforms with this Act" were inserted by the amendment of 1991, but both Acts came into force on the same date.

One obvious intention of the legislature in so providing was to make it clear that local authorities did not have to re-enact all town planning by-laws in order to make them operative as a town planning scheme under the new Act.

It follows that "planning scheme" in Regulation 7(1)(m) includes a town planning by-law which was in force prior to the Act coming into force with the qualification that such is so only to the extent that the by-law "conforms with this Act".

There was, immediately prior to the Act commencing, a by-law of the first respondent, By-law 24, which dealt with town planning. In Part 2 it made provision for applications for rezoning and By-law 1(2) of that Part detailed the contents of such an application. Much of it is in similar terms to Regulation 7 but there are four material paragraphs which, in the submission of counsel for the appellant, went beyond the contents of Regulation 7 and survived the coming into force of the new legislation because they were in "conformity" with it. The relevant paragraphs in the by-law are to the following effect:

"(vi) The grounds upon which the applicant

requests that the land be rezoned;
. . .

(viii)	The name of the occupier of the land; . . .
(xi)	A site and layout plan including the location of any services and when requested by the Clerk or the Council, an elevation of any building or other structures proposed;
(xii)	Such other information relative to the application as may be requested by the Clerk or the Council including where necessary a metes and bounds description of the land proposed to be rezoned such description to be certified as correct by a license surveyor."

In the course of giving reasons the learned Judge constituting the Planning and Environment Court concluded that By-law 24.1(2) was at variance with Regulation 7 because the latter did not contain reference to the matters specified in the paragraphs quoted above from the by-law, and therefore that "By-law 24.1(2) does not conform with the Act and to the extent of non-conformity has no force and effect." The conclusion was also reached that Regulation 7(m) did not have the effect of incorporating By-law 24.

As already pointed out the By-law was in force immediately before the commencement of the Act and by operation of s. 8.10(3) and (6)(a) it would continue to have force and effect under the legislation "to the extent it conforms with this Act". It seems clear that the local authority is entitled to make additional requirements to those prescribed by the Act; s. 4.3(3) permitting the local authority to determine the form of the application and para. (m) of Regulation 7 are sufficient indication of that. If the local authority could now pass a by-law requiring such additional information to accompany an application it is difficult to arrive at a conclusion that a pre-existing requirement that such information be furnished is not in conformity with the Act; the mere fact that a town planning by-law requires additional particulars to be furnished in support of an application does not mean that to that extent it does not conform with the Act. In essence a provision would not conform with the Act only if it was inconsistent with it. Given the provisions of s. 4.3(3) of the Act and Reg. 7(m) the legislation does not evidence an intention to "cover the field" to the exclusion of matters found in a town planning scheme either subsisting pursuant to s. 8.10(3) and (6)(a) or enacted by a local authority in the future. That is the construction which should be placed on the statutory provisions in question. It follows that the learned Judge below erred in concluding that By-law 24 did not conform with the Act because it required an applicant to furnish some additional particulars.

When the Planning and Environment Court is giving further consideration to this matter it should therefore proceed on the basis that By-law 24 is a relevant town planning scheme to the extent that it conforms with the Act, and that means to the extent that it is not inconsistent with a provision found in the Act.

The appeal should be allowed and the matter remitted to the Planning and Environment Court to be dealt with according to law. The respondents should pay the appellant's taxed costs of and incidental to the appeal.