Maxen Developments Pty Ltd & Anor v. Burnett Shire Council

[2007] QPEC 60

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Maxen Developments Pty Ltd & Anor  v Burnett Shire Council [2007] QPEC 060

PARTIES:

MAXEN DEVELOPMENTS PTY LTD and

BARGARA BEACH ESTATE PTY LTD
Applicants

V

BURNETT SHIRE COUNCIL
Respondent

FILE NO/S:

P&E Appeal No 1537 of 2007

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2007

JUDGE:

Rackemann DCJ

ORDER:

CATCHWORDS:

Conditions – Reconfigure a lot – Operational works – Residential subdivision – provision of electricity – whether condition required undergrounding of existing external electricity infrastructure – declaration as to proper construction s 4.1.21 Integrated Planning Act 1997 (Qld)

COUNSEL:

Mr Williamson for the Applicant

Mr Connor, solicitor, for the Respondent

SOLICITORS:

IPA Law Planning Lawyers for the Applicant

Connor O’Meara Solicitors for the Respondent

1. The applicants are the owner (Bargara Beach Estate Pty Ltd) and the sole shareholder of the owner (Maxen Developments Pty Ltd) of land at Watsons Road and Moodies Road, Bargara. The land is the subject of development permits to reconfigure a lot (ROL) and to undertake operational works (OW) for a residential subdivision.  Each approval is subject to conditions, including as to the provision of electricity.  In this proceeding, the applicants seek declarations to resolve a dispute with the Council as to whether those conditions require existing overhead power lines, external to the site, in Watsons Road and Moodies Road to be replaced with underground power for the full length of the site frontage.

1. The ROL permit was obtained prior to the OW permit.  The ROL permit is subject to conditions as to works, which are, in turn, subject to the OW permit. The ROL conditions include conditions with respect to external works.  The external works include road works and pedestrian pathways which are expressly required in relation to the full frontage of the site to Moodies Road and Watsons Road.  As to underground electricity supply however, Condition 32 of the ROL provides:

“Underground electricity supply shall be provided to all lots in accordance with Ergon Energy’s “Urban Residential Development Specifications” and Burnett Shire Council’s Standard Drawing No. R131.”

1. The “lots” referred to are the proposed new lots in the subdivision.  It is those lots, within the development site, to which underground electricity must be provided.  That would involve connection to the existing electricity supply, but there was no suggestion that, absent some requirement to do so, it would necessarily involve undergrounding the existing overhead lines external to the site.  The condition, on its face, makes no reference to the external overhead powerlines and, unlike other conditions, does not expressly stipulate any works to be conducted external to the site along the site frontages.  It was not suggested that either of the two documents referred to in the condition would require the existing overhead powerlines to be relocated underground.

1. There is no sufficient basis for reading into Condition 32 a requirement to alter the existing external electricity infrastructure in the way suggested by the Council.  The solicitor who appeared for the Council did not have instructions to concede the point, but did not seek to persuade the court to a different conclusion.

1. The focus of the argument was Condition 40 of the OW permit which provides:

“Electrical reticulation shall be to the requirements of Ergon Energy for Urban Residential Developments (URD).  Underground power supply shall be provided to the development.”

1. The solicitor for the respondent focused on the change in language between Condition 32 of the ROL permit, which requires underground supply “to all lots”, and Condition 40 of the OW permit, which requires underground supply “to the development”[1].  He submitted that Condition 40 extended to provision of an underground supply to the development site, rather than just to the lots within it.

   [1] The expression “the development” was rightly assumed by each of the parties to be a reference to the proposed residential subdivision rather than the operational works themselves

1. Some caution needs to be exercised in reading too much into subtle changes of language in planning permits.  It is well settled that such permits should not be scrutinised in the same way as words used by parliamentary draftspersons[2].  Counsel for the applicants did not, however, cavil with the proposition that the provision of supply “to the development” would involve works external to the site, at least so as to provide a point of connection between the existing electricity infrastructure and the development site.  As he rightly pointed out however, the Council’s construction relies on construing Condition 40 not simply as relating to that which must be done to bring the electricity from the existing network to the development site but also as requiring the replacement of part of the existing external overhead network.

   [2] See Weigall Constructions Pty Ltd v Melbourne Metropolitan Board of Works (1972) VR 781 at 796, Esk Shire Council v John Jackson & Ors [2001] QPELR 253 at 258, Hawkins and Izzard v Brisbane City Council (No 1) [2001] QPELR 414 at 416 and Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5 at para 6

1. The solicitor for the Council conceded that the condition is unclear as to the exact extent of external works required, but submitted that the condition should be construed, in context, as requiring underground supply along the full road frontages of the site.  He submitted that was a sensible construction given that other external works, such as roadworks and footpaths, extend to the length of the site frontage.  He drew an analogy with Condition 41, which requires street lighting to be in accordance with a certain standard, and the requirements of Ergon Energy, without specifying the location of street lighting.

1. I do not consider that the extent of external works otherwise, leads to the conclusion that Condition 40 should be construed as the Council contends.  The conditions of the ROL approval expressly required works such as roadworks and footpaths to be provided for the full street frontage but neither the ROL permit or the OW permit contained any similar express requirement for electricity supply.  While there is a more obvious connection between the extent of street lighting and the roads and pedestrian-ways intended to be lit, there would not appear to be a necessary connection between the carrying out of the operational works otherwise and a need to underground the existing external electricity infrastructure.

1. Counsel for the applicants contended that, in so far as external works are concerned, Condition 40 should not be construed as going beyond the provision of electricity from the existing network to the development.  That is consistent with the Ergon Energy requirements referred to in the first sentence of the condition.

1. The relevant Ergon Energy document requires that “all electrical reticulation in new developments … shall be underground unless agreed otherwise with the local government authority”.  It also contemplates “upstream works” which are those required to extend or continue the existing network to or from a point of connection in the subdivision or stage.  These works include “tie-in” works, being those works required to connect the electrical reticulation to the existing network.  Upstream works are “non-contestable” works for which Ergon Energy completes the design and construction at the developer’s cost.  It is common ground that the relevant Ergon Energy document does not require the undergrounding of the existing overhead network external to the site, but rather contemplates the provision of electrical reticulation from the existing infrastructure[3].

   [3] T52

1. The applicants’ construction is also consistent with the approved plans.  Condition 1 of the OW permit requires development in accordance with certain documentation including certain plans.  Those plans show the existing external overhead network, including the power poles which support it, albeit that the location is said to be shown schematically.  There is no indication on the approved drawings that the overhead network is to be replaced by an underground supply along the site frontages.  Indeed, the plans show an intention to relocate one particular power pole, which is in the way of some road widening works to be done in Watsons Road.  The approval does not contain any express requirement that the approved plans be amended to reflect the requirements which Council now says arise by reason of Condition 40[4].

   [4] Compare Condition 20 of the OW permit

1. It is, of course, important that care should be taken in drafting permits and the conditions attached thereto, to ensure they are framed in clear terms and the conditions are specified with certainty.  Condition 40 could have been better drafted.  The construction for which the applicants contend is however, to be preferred.  The fact that other aspects of the operational works are to be undertaken in respect of the full road frontages of the subject site does not lead to the conclusion that Condition 40 requires existing electrical infrastructure in that same area to be relocated underground.  The construction for which the applicants contend (that the condition relates to the provision of power from the existing network to the development) sits with the language of the condition, the Ergon Energy requirements referred to in the condition itself and the approved drawings.

1. Any lack of clarity or certainty is the responsibility of the Council, which formulated the conditions.  The authorities suggest that the Council should bear the consequences of any failure to specify accurately or in detail the conditions to which the permit is subject[5] and that where the Council seeks to read into a condition something against the defendant which it did not choose to say clearly, ambiguity ought be resolved against the Council[6].  The solicitor for the Council, in his written submissions, acknowledged that if there is ambiguity in the wording of a consent, it may be interpreted in a way which places the least burden on the person entitled to act upon it[7].  The construction which I favour is also consistent with that approach.

   [5]Ryde Municipal Council v Royal Ryde Homes (1970) LGRA 321 at 324

   [6]Willoughby Municipal Council v Bell (1974) 29 LGRA 423

   [7]Matijesevic v Logan City Council [1984] 1 Qd R 599 at 601, Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334 at 336, Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council [2001] QPELR 414 at 416, Caloundra City Council v Taper Pty Ltd [2003] QPELR 558 at 575, Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5 at para 6

1. I conclude that neither Condition 32 of the ROL approval nor Condition 40 of the OW approval requires undergrounding of the existing overhead electricity reticulation external to the site.  I will hear from the parties in relation to the minutes of order.