McDonald v Douglas Shire Council
[2002] QPEC 19
•23 April 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
McDonald v Douglas Shire Council [2002] QPEC 019
PARTIES:
JOHN JOSEPH PETER MCDONALD Applicant
And
DOUGLAS SHIRE COUNCIL RespondentFILE NO/S:
1088 of 2001
DIVISION:
Planning & Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
23 April 2002
DELIVERED AT:
Brisbane
HEARING DATES:
26 February 2002 & 27 February 2002
JUDGE:
Judge McLauchlan QC
ORDER:
Declaration refused
CATCHWORDS:
COUNSEL:
Mr W Cochrane for the Applicant
Mr D Gore QC and Mr M Rackemann for the Respondent
SOLICITORS:
Macdonnells Solicitors for the Applicant
Willams Graham & Carman for the Respondent
This is an application for declarations and/or orders relating to land situated at the corner of Cape Tribulation Road and Turpentine Road in the Shire of Douglas and more particularly described as Lot 177 on RP 840914, Parish of Alexandra, County of Solander. The particular declaration sought pursuant to s.4.1.21(1)(c) of the Integrated Planning Act 1997 is that Town Planning Consent No 484 granted by Douglas Shire Council for a Recreational Resort and Convention Centre on that land is current.
The Town Planning consent was notified by the respondent to the applicants on 30 November 1990, during the currency of the respondent’s 1981 Town Planning Scheme. The relevant planning statute at the time was the Local Government Act 1936. That Act made no provision for the automatic lapse of a consent, which continued in force unless revoked.
On 15 April 1991 the Local Government (Planning and Environment) Act 1990 (the P & E Act) commenced. On 19 May 1993 Building Permit No 5124 was issued by the respondent to Qantec Pty Ltd to construct the buildings necessary for the development of the Resort. In December 1993 Qantec entered into a contract with Emerald Waters Pty Ltd, the owner of the land, to “substantially start” the works required. In 1994 some physical work was done on the site pursuant to that contract. The 15 April 1995 is the fourth anniversary of the commencement of the P & E Act, a date which is relevant because it is accepted that, as a matter of construction of the relevant statutory provisions, the use authorised by the Town Planning Consent was required to have “commenced” by that date if it was not to lapse.
In December 1996 the respondent’s present Town Planning Scheme came into force. Under the Planning Scheme, the use of the land for the purpose of a resort development is prohibited, but this provision is now subject to section 6.1.2(3) of the Integrated Planning Act. On 30 March 1998 the Integrated Planning Act commenced. The present application was filed in the Court on 9 March 2001. In September 2001 the display period for the statement of proposals for the new IPA planning scheme ended.
The relevant Town Planning Consent takes the form of a letter dated 30 November 1990 from the respondent to Gulban Nominees and Zikos Nominees and records that the relevant appeal to the Local Government Court had been allowed by His Honour Judge Row on 19 November 1990 by a consent order, subject to various conditions which are then set out. The application itself was dated 28 June 1988, and is described as “for land use approval under the provisions of the Town Planning Scheme for the development of a Resort Development comprising 102 accommodation units, convention facilities and ancillary uses on land described as Lots 177 and 178 on RP 739774, Parish of Alexandra, County of Solander.” One of the conditions was that the number of accommodation units was to be reduced to 65 guest units and 10 staff units. Condition 32 stated that the conditions of the Town Planning Consent were to be effected prior to the commencement of the “specific use” of the Consent. That would appear to be a reference to the use of the premises as a “resort development”, or a “resort”. The purposes specified in the permit namely the development of a Resort Development and ancillary uses on the land, read in conjunction with condition 32, contemplate the erection of buildings and other infrastructure, and the operation of the developed land as a resort. The use desired to be made of the land was stated in the application itself to be a recreational resort and convention centre with an accommodation building and a conference and amenities building. The consent order of 19 November, 1990 is not in evidence.
It is the contention of the applicant that the Town Planning Consent is “current”, that is, that it continues in full force and effect. It is the primary contention of the respondent that the consent lapsed on 15 April 1995 pursuant to s.4.13(18)(a) of the P & E Act, or alternatively lapsed at some time in 1995 (or later) pursuant to s.4.13(18)(b) of the P & E Act.
In order to resolve this issue it is necessary to consider the provisions of s.4.13 of the P & E Act which is made applicable to Town Planning Consent No 484 by s.8.10 of that Act. There is no dispute on the point but for the sake of completeness I set out the provisions of s.8.10 (8) and s.8.10(8B):-
“(8).Each approval, consent or permission (but not any conditions attaching to the approval, consent or permission) granted by a local authority or the Governor in Council prior to the commencement of this Act, is to continue to have force and effect as if were an approval, consent or permission, as the case may be, made pursuant to this Act (but any conditions attaching to the approval, consent or permission are still to apply as if this Act had not commenced).
(8B)A consent referred to in subsection (8) does not lapse pursuant to s.4.13 (18), until 4 years after the commencement of this Act.”
Section 4.13(12) provides for the issue of a town planning consent permit or interim development permit, as the case may require. Section 4.13(15) provides for the maintenance of a “town planning consent permit register”, and s.4.13(16) provides:-
“Where a permit is issued pursuant to sub-section (12), the right to use premises and to erect, re-erect, or modify any buildings or other structures for the purposes specified in the permit is, subject to the conditions contained in the permit or any modifications made thereto pursuant to s.4.15, to attach to the land and be binding on successors in title and continues in force until –
(a) it is revoked pursuant to s.4.14; or
(b) it lapses in accordance with subsection (18); or
(c) the use ceases to be a lawful use pursuant to s.3.1; or
(d) it is superseded by the commencement of another use.”
Section 4.13(18) provides:-
“A permit issued pursuant to subsection (12) lapses where –
(a)the use of land or the use or erection of a building or other structure on land, the subject of the approval in respect of which the permit was issued, has not been commenced within 4 years of the date of issue of the permit or such extended period or periods as the local government upon application being made to it therefor approves; or
(b)a use of any premises established pursuant to the permit has ceased for a period of at least 12 months.”
Section 1.4 of the P & E Act defines the expression “use” in relation to land, as follows:-
“`use’ in relation to land, includes the carrying out of excavation work in or under land and the placing on land of any material or thing which is not a building or structure and any use which is incidental to and necessarily associated with the lawful use of the relevant land.”
Section 33(1) of the Local Government Act made similar provision.
A permit issued pursuant to subsection (12) of s.4.13 confers the rights stated therein until any of the events specified in subsection (16) occurs, including lapse of the permit in accordance with subsection (18). Subsection (16) speaks of the right to use “premises” and the use of premises is also referred to in subsection18(b). That term is defined in the Act to include land buildings and other structures and any part thereof.
The term “erect” is defined to include:-
“(a) erect or commence or continue to erect; or
(b)do, or commence or continue to do any work in the course of or for the purpose of erecting;”
The definition of “use” produces the result that a use of land includes the carrying out of excavation work in or under land, and the placing thereon of any material or thing, but excludes from the concept the erection of a building or other structure on land: see BCC v Boral Resources (Qld) Pty Ltd (1998) 99 LGERA 84. This is consistent with the distinctions in the legislative scheme, noted in Boral, between land, and buildings and other structures, and between use and erection. The excavation of land and the placing thereon of any material or thing, subject to the exception stated, would appear to cover development of a site for the purposes of the permit in all respects save for the erection of buildings and other structures.
The contention of the Respondent with respect to paragraph (a) of s.4.13(18) falls into two parts: firstly it is said that whether or not the erection of buildings upon the land, authorised by the permit and the building permit, commenced within the prescribed period, the use of the land as a resort certainly did not; and secondly it is said that there was no “genuine” commencement of building work upon the land for the purposes of the permit – that the work in fact done on the land should be seen in that context as a “sham”. In either case it is submitted that the permit has consequently lapsed.
On the first point, the argument of the Respondent is put in this way:-
“What must be commenced to prevent lapsing pursuant to s. 4.13(18)(a) will therefore depend upon what has been approved. If a permit relates only to the use of land (e.g. an approval to use land for grazing or agricultural purposes), it is obvious that only the use of that land for that purpose need commence within the 4 year period. But if the permit extends to both the erection and use of a building, then both the erection and use of the building need also to be commenced. It would not be sufficient to simply commence the use of the land; nor would it be sufficient to commence the erection of the building, as that could postpone the completion of erection, and the first actual use of the building, for an indefinite period.”
It appears to me, however, by reason of the definition of “use” already mentioned, that the use of the land referred to in s.4.13(18), that is, in this case, the use of the land as or for the purpose of a resort, commenced when excavation work for that purpose was carried out in the land, and other development of the site occurred, other than the erection of buildings, so that that use, and the erection of buildings for that purpose commenced generally at the same time, subject only to the question whether the work done was “genuine” or a “sham”.
I do not recall specific evidence on the topic of excavation, but I think it may be legitimate to infer, from the nature of the work done, that excavation, if only to a minor extent, must have occurred. Whether or not there was excavation, there is evidence of other work on the site, apart from the erection of buildings or structures. The excavation, if it occurred, and the other work were carried out in 1994.
It is not in my opinion, a correct description of the permit to say that it authorised the erection of buildings on the land and the subsequent use of those buildings as a resort. What it did was rather to authorise the use of the land as a resort, and the construction of buildings thereon for that purpose. The excavation assumed, and the other work, marked the commencement of the use of the land for the purpose of a resort, if it can be identified as such.
I therefore pass on to the second point, that is, whether the work done, including the assumed excavation work, was a “sham”.
It is contended by the respondent that the work done on the land should not be seen as a commencement of the erection of a building or buildings thereon authorised by the permit, because it was not a “genuine” commencement, but was rather a “sham”. The reason put forward for this view is that the work done on the land was not done with any intention that it should be completed in accordance with the requirements of the permit, but merely to prevent the permit from lapsing. (Indeed, it is clear from the contract that was entered into, that the only purpose of having the work done was to prevent the permit from lapsing.) The respondent contends that the evidence shows that the applicant did not intend, and was financially unable, to complete the work. In those circumstances it is contended that there was no “real” commencement of the work for the purposes of the permit, the so-called commencement being merely a “sham”.
There is high authority to the effect that the question whether or not work has been “commenced” for the purposes of a permit such as that being here considered, is to be determined upon objective and not subjective considerations, and that the motive or intention of the party doing the work, or having it done, is irrelevant to that consideration. That view is, in essence, that provided the work done was in fact work which, viewed objectively, was a commencement of the work authorised by the permit, it matters not whether the applicant intended to continue the work or whether it was ever intended that more should be done than to commence the work. The argument of the respondent is in effect that work cannot be “commenced” unless there is at least an intention that it shall be continued for the purposes for which the permit gave approval, otherwise it is a “sham” commencement.
There are dicta in United Dominions Corporation Ltd v Woollahra MC (1973) 2 NSW LR 566, to the effect that a sham commencement is not a commencement for the purposes of a provision of the sort presently under consideration. Jacobs P, at 618 referred to the necessity to consider in some circumstances whether an apparent commencement might be no commencement at all, because the commencement was really a sham. And at 622-623, Reynolds JA said:-
“I find no difficulty in the notion that a commencement must be real as opposed to a notional or sham commencement. Nor do I find any difficulty in the idea that, in certain circumstances, the absence of any intention to complete the building work may demonstrate that a purported commencement was a sham.
I cannot, however, subscribe to the view that an alleged commencement ceases to be a commencement if the party who carried out the building work relied upon as constituting it does not intend that he himself will continue and finish the work.”
The position was further considered in Droummoyne MC v Page (1973) 2 NSW LR 566 (CA), and further on appeal to the High Court where the case is reported as Droummoyne MC v Lebnan 1974 (131) CLR 350. In the Court of Appeal Jacobs P at 572 referred to the earlier decision in United Dominions Corporation Ltd in the following terms:-
“It was held that, unless there was no commencement in the sense that what had been done was a sham, what must be looked at is the work actually done, and the commencement did not cease to be so because of any motive or intention of the part of the owner that he himself would not be the one to continue and finish the work or because the purpose of the work was in order to preserve the approvals.”
In the High Court Gibbs J, speaking for the majority said at 360-361:-
“The question whether the work or development has been substantially commenced is an objective one depending on what in fact has been done rather than on the intention with which it was done (See United Dominions Corporation Ltd v Woollahra Municipal Council), and the circumstance that the work in October was done for the purpose of keeping the approval alive is not inconsistent with the conclusion that the work was substantially commenced.”
The above authorities were considered by Connolly J in ex parteDackfield Pty Ltd [1983] Qd R 10, a case which was concerned with the construction of a clause of the Standard Building By-Laws 1975 which provided that the approval of any building work should become void if the building work was not commenced within 12 months after the day on which the approval was given. At pp 12, 13, Connolly J said:-
“The following principles emerged from those decisions. First, whether building work has or has not been substantially commenced does not depend on the motive or intention of the building owner in performing the work. The test of substantial commencement is an objective not a subjective one: United Dominions Corporation Ltd v Woollahra Municipal Council (1973) 1 NSWLR 616 approved by the High Court in Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 at p. 360 per Gibbs J delivering what was in effect the judgment of the Court on this point. Second, it is not correct to say that commencement involves an activity which is a continuing activity, so that if there is no continuance there is no commencement: the United Dominion’s case (supra). Third, what is probably a corollary of the second, an alleged commencement does not cease to be a commencement if the party commencing the work does not himself intend to continue and finish the work; the United Dominion’s case (supra). Fourth, where a provision calls for substantial commencement of the work within a specified time, the work concerned is that to which the approval itself refers and work is not commenced when nothing more has been done than acts preparatory to the work which is the subject of the approval: Lebnan’s case (supra) at p. 360.”
That decision made no reference to the earlier decision of the High Court in Day v Pinglen Pty Ltd 1981) 148 CLR 289. That case was again concerned with the construction of s.315 of the Local Government Act 1919 (NSW). The Court referred to the decisions in United Dominions Corporation, Page and Lebnan to the effect that the test of substantial commencement is an objective one depending on what in fact has been done rather than on the intention with which it was done. The judgment of the whole court then proceeded at pp 297-299 as follows:-
“We regard it as important that the clarification which these decisions bring to the concept of “substantial commencement” should not be disturbed. It is a criterion requiring to be applied very frequently by local authorities, developers and concerned neighbours, and one that carries important implications for property rights. A building approval, once given, confers a valuable right, and the test by which an owner may be dispossessed of that right should be one that is clearly understood and readily applied.
The adoption of an objective test, to be applied as at the date when, in the absence of substantial commencement, the approval would become void, requires that evidence of events following the relevant date be treated with reserve. Such evidence will not often be found to be cogent. Thus, in the present case, evidence of the difficulties which the slab presented in 1980 is relevant only in so far as it bears on the utility of the slab when it was constructed in March 1977 and its then relation to the approved building work. Subsequent deterioration is wholly irrelevant. Furthermore, one must be conscious of the dangers of hindsight in using subsequent experience as an aid to the assessment of the value of the slab in 1977. It seems to us, notwithstanding that the work was undertaken out of the normal sequence and thereby caused some difficulty in the remaining sequences, and that in 1980 it was not only lacking in utility but was an actual hindrance, the finding of the trial judge that when constructed the slab conformed to the approved plan and represented an acceptable method of commencing the project should be endorsed.
However, it remains necessary to consider, applying an objective test, whether, firstly, there was a commencement of the building work, and if so whether that commencement was substantial. There are some persuasive indicators pointing to a conclusion that there was no commencement of the building work in March 1977. There was, of course, the construction of a concrete slab. But the detailed drawings for the approved project had not been prepared. Tenders had not been called, and no contract had been let. The casual arrangement by which a builder, already engaged in another project for the owner, transferred some of his men on to the site for the three or four days that were necessary to complete the particular work to which he was assigned strongly suggests that this was an isolated work which had no real relation to the building work for which approval had been given. The job was an end in itself. It was the construction of a concrete slab. Of course it must be immaterial that the work did not continue beyond 25 March 1977, for the sound reasons given by Jacobs P in the United Dominion’s case. We concern ourselves only with the facts that are open to objective determination on the relevant date. Pinglen relies on the authority of the United Dominion’s and Lebnan cases. However in the former, the planning had been completed and a contract let; only its execution was interrupted because of financial difficulties. In the latter, the plans were complete but no contract for the work had been entered into; but that case must be seen in the light of its unusual facts. Although a building approval was current at the time, the local authority was asserting that the development consent had expired, with the result that everything that the owner did in the final months was done under a cloud of alleged illegality.
Nevertheless, notwithstanding the considerations which we have mentioned, the fact remains that the slab did in fact form part of the approved work, and we are not prepared to find that there was no commencement. In doing so, we bear in mind the comment of Jacobs P in United Dominion’s case to the effect that the requirement of “substantiality” will ensure that a commencement is in fact genuine. It makes for easier administration of the law embodied in s.315 if in a case in which the work done is capable of forming part of the approved building work, the sole criterion for determination is whether the work actually done is a substantial part of the approved building work: CF. Gibbs J in Lebnan’s case.” (my italics)
In the present case we are concerned with a “commencement”, not a “substantial commencement”, and the question whether a commencement is genuine or a sham cannot therefore be avoided by considering only whether the commencement is substantial. However, as it seems to me, the notion of “commencement” focuses on the question whether the work done allegedly by way of commencement of the permitted use is, viewed objectively, referable to that use; that is to say, whether it is done as a part of the work required by the permit and is not equivocal in the sense that it may be referable to some other work having nothing to do with the permitted use. Once the work done is identified as a part of works that were acceptable to achieve the building and other development work required by the approval it follows in my view that work pursuant to the approval or permit has commenced. Day v Pinglen Pty Ltd makes it clear that even where the work done is an end in itself, as it was in that case, and cannot be seen at the relevant date as part of a project to perform the whole of the works required, the work has nevertheless been commenced if, viewed objectively, it formed part of the approved work, and the motive or intention with which that has been done is irrelevant to that conclusion.
The decision in Day v Pinglen Pty Ltd makes it clear that there is a large contrast between a requirement that work be “commenced”, on the one hand and a requirement that it be “substantially commenced”, on the other.
In that case, section 315 of the Local Government Act 1919 (NSW) provided that a building approval given by a Municipal Council would be void if the building work to which it referred was not substantially commenced within 12 months after the date of approval. On 25 March 1976, a Municipal Council granted approval for a proposal to build a large residential building on a site near Sydney Harbour. By 25 March 1977, no detailed drawings for the project had been prepared nor had any tenders been called or contract let. On 25 March 1977, a concrete slab was constructed which represented 11% of the slab area of the ground floor of the project. The cost of laying the slab was $2,127.17. The cost of the whole project was then estimated to be $350,000. The slab was constructed out of sequence as a way of keeping the building approval alive. No further work was carried out on the project until April 1980 by which time the slab had deteriorated and its utility was questionable.
As indicated from the portion of the judgment of the Court set out above, in these circumstances the Court held that the work had “commenced” but their Honours went on to hold that there had not been a substantial commencement, which involved a commitment of resources of such proportions relative to the approved project as to carry the assurance that the work had really commenced.
In the present case the question is only whether approved building work had “commenced”, not whether that work had been “substantially commenced”. A building permit to carry out work in accordance with detailed plans was issued by the respondent on or about 19 May 1993. Various works have been constructed on the site. These comprise a maintenance shed which has been constructed on a concrete slab on the site, a generator shed, two tank stands and three floor slabs of an area of approximately 6m x 6m2 with PVC drainage cast into them. In addition a sewerage treatment plant has been placed on the site, an artesian bore has been installed and sub-grade and gravel to form a wet weather access road has been placed on site. Roof trusses and wall frames sufficient to complete at least two cabins have been constructed on site. The maintenance shed is in good condition and is consistent with relevant drawings. The three slabs poured on the site coincide with locations shown on Building Permit Plan 11 and are generally in accordance with the Town Planning Consent. There is no evidence of work being carried on on the site since June, 1994, and the site has become overgrown.
In my opinion building and other work required for the development of the property as a resort development had in fact commenced within the four-year period provided by the P & E Act. The work was done specifically to avoid lapse of the Town Planning Consent Permit but that is irrelevant to the question, which must be determined objectively, and without regard to the intention or motive of the applicant. Similarly, evidence of events subsequent to the relevant date have no bearing on the determination, which is concerned only with the facts open to objective determination on the relevant date. An absence of intention to complete the work or a lack of financial ability to do so, if the evidence establishes those propositions is likewise irrelevant. The only issue, in my opinion on the question whether the commencement was ”genuine” or a “sham” is whether the work, objectively viewed, can be identified as the commencement of work authorised by the permit. In my opinion the work in fact carried out satisfies that test.
There has been both a commencement of the erection of buildings and a commencement of the use of the land the subject of the approval in respect of which the permit was issued. The permit issued to the applicant has therefore not lapsed under s.4.13(18)(a). The remaining question in relation to the currency of the permit is whether it has lapsed under sub-sec (18)(b) of that section, which, it will be recalled, provides for lapse of a permit where “a use of any premises established pursuant to the permit has ceased for a period of at least 12 months”. It is necessary to determine the meaning of the expression “a use of any premises established pursuant to the permit”. Obviously, I think the word “established” qualifies “use” and not “premises”, and as we have seen the erection of buildings or other structures is not a “use” of land in this legislation. “Pursuant to the permit” I think merely identifies the use as one which is in accordance with the permit.
A permit issued pursuant to subsection 12 of the section confers the rights which are mentioned in subsection 16, but until those rights are exercised the use or uses involved has or have not commenced, which is to say they have not come into existence, and if that remains the situation for the prescribed period of four years then those rights cease to exist as a consequence of the lapse of the permit. In my opinion it is a natural use of language to say that once the use has commenced, and thus come into existence, it has been “established” and the operation of para (b) is thus attracted. In the present case the use under consideration is the development of the site (excluding the erection of buildings and other structures) and its operation for the purpose of a resort. That use, in my view, was established when work upon the site, other than building construction, commenced, as in my view it did, within the four-year period prescribed in para (a). The use was then established for the purposes of para (b).
The alternative view appears to be that the use is “established” when it is, as it were, “up and running”. I accept that that is a possible meaning of the expression, but it suffers from a lack of certainty and clarity which makes it unlikely in my view that that meaning was intended in the legislation. It would also leave a lacuna in the operation of subsection (18) because there would be no provision for lapse of the permit once the use had commenced, unless and until the use became “established” in that sense, which might not occur for very long time, if at all. The legislature must be taken to be familiar with the authorities already referred to, which existed prior to the date when the P & E Act came into force, and which demonstrated that “commencement” in the relevant context does not imply a continuance of the work or use alleged to have been “commenced”.
Has the use, then ceased for a period of at least 12 months? In considering this question I consider it is necessary to put to one side the cases concerned with “abandonment”: cf Leeming v City of Port Adelaide (No 2) (1987) 62 LGRA 296; Hudak v Waverley MC (1989) 18 NSWLR 709. A cessation of a use for a stipulated period appears to me to depend upon matters of objective fact, as does the concept of “commencement” in para (a) of the subsection; whereas the concept of abandonment includes subjective elements, such as intention. Proof of cessation would not necessarily establish abandonment. It appears to me that the need for clarity and certainty identified in Day v Pinglen Pty Ltd in relation to the concept of “commencement” applies equally in relation to the concept of “cessation” in para (b) of the subsection. There is no doubt that, objectively speaking, work on developing the land has ceased for well over the stipulated period, and the consequence, in my opinion, is that the permit has lapsed, and the rights which it conferred have been extinguished.
In view of the conclusion that the permit has lapsed there is no need to enter upon a consideration of the arguments for and against the proposition that even if the permit is current in terms of the relevant legislation the court retains a discretion to refuse to make a declaration to that effect and in the particular circumstances of this case should refrain from doing so.
In the result the declaration sought is refused. There is no cross-application by the respondent.
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