NRMCA (Qld) Ltd v Andrew

[1992] QCA 8

IN THE COURT OF APPEAL

[1992] QCA 008

SUPREME COURT OF QUEENSLAND

Appeal No. 83 of 1991

BETWEEN:

NRMCA (QLD.) LTD.

(Applicant)

Appellant

AND:

VICTOR JOHN ANDREW and

GEORGE WILLIAM ANDREW

(Respondents)

Respondents

JUDGMENT OF THE COURT

Delivered the Third day of March 1992

This is an appeal from a judgment of his Honour Judge Quirk, sitting in the Planning and Environment Court ("the P.E. Court"), by which, it is said, his Honour refused the appellant an order under s.2.24 of the Local Government (Planning and Environment) Act 1990 ("the Act"). The appeal is brought under s.7.4(3) of the Act which permits an appeal from a determination of the Court to the Full Court of the Supreme Court of Queensland, but only on the ground of "error or mistake in law" or lack of jurisdiction. By virtue of s.29(1) of the Supreme Court of Queensland Act 1991, this Court of Appeal has inherited the Full Court's jurisdiction to hear such matters.

The matter was argued on the assumption that the Judge made a "determination" within the meaning of s.7.4(3) of the Act; this assumption is further discussed below.

Section 2.24 of the Act reads, in part, as

follows:

"(1) Any person may bring proceedings in the Court for a declaration in respect of matters referred to in subsection (3) or for an order to remedy or restrain the commission of an offence defined in section 2.23(1), whether or not any right of that person has been or may be infringed by, or as a consequence of, that offence.

...

(4) Where the Court is satisfied that an offence defined in section 2.23(1) has been committed (whether prosecuted or not) or that such an offence will, unless restrained by order of the Court, be committed, it may make such order as it considers appropriate to remedy or restrain that offence.

(5) An order made by the Court under

subsection (4) may -

(a)	order the defendant to cease any activity that is a contravention of or a failure to comply with a provision of a planning scheme;
(b)	order the defendant to do any act or thing required to comply with or to cease a contravention of a provision of a planning scheme;
(c)	specify that the failure to comply constitutes a public nuisance,

and be in such terms as the Court considers appropriate to secure compliance with the planning scheme".

Sub-section (7) of s.2.24 makes failure to comply with an order under sub-s.(4) an offence against the Act.

Note should be taken of the concluding words of

sub-s.(1) quoted above:

"... whether or not any right of that person has been or may be infringed by, or as a consequence of, that offence".

The appellant's counsel, Mr. Derrington, particularly relied
upon that provision.

The respondents have, for many years, extracted sand and gravel from the banks of the Brisbane River adjacent to their land at Borallan. About the beginning of 1988, the respondents and their brother, Alan, began to operate a concrete-batching plant on the property. The existence of the plant came to the attention of the local authority which wrote to the respondents in August 1988, informing them that under the Moreton Shire Council's town planning scheme, consent of the Council to the operation of the plant was required.

The provisions of the scheme were not placed before us, but the case was decided below on the basis, the correctness of which we accept, that it was and is necessary under the relevant scheme for the respondents to obtain the Council's consent, in the absence of which the operation of the plant was and is unlawful. On the Council's invitation, the respondents applied for such a consent and that was refused in June 1989 on a number of grounds, including the following:

"(1) The construction and design of Burtons Bridge is not conducive to frequent and increased use by heavy vehicles.

(2) Frequent and increased use of Burton's Bridge by heavy vehicles will greatly accelerate the need for major and costly reconstruction of the bridge".

The respondents appealed against the Council's decision, but the appeal was not pursued.

In July 1989, a second application was made to the Council for consent to a use in respect of another parcel of land close to the subject land. The precise nature of that second application is not disclosed by the material, but it appears also to have been concerned with the concrete- batching plant. It also appears to have been refused.

On 7 March 1991, the Council wrote to the second respondent in the following terms:

"I refer to your application for consent to use land described as Part of Subdivision 2 of P.P. 1 in the Parish of Sahl, situated at E. Summervilles Road, Borallon, for a Concrete Batching Plan and recent discussions between yourself and Council's Shire Planner and Shire Engineer.

I wish to advise that Council will defer all legal action pending the outcome of the possibility of constructing a low level bridge. In this regard, you were to contact the Water Resources Commission and Council would be interested in knowing the outcome of these discussions.

If you would like to discuss this matter further, please do not hesitate to contact the officer named above, who will be happy to assist you".

The respondents adduced affidavit evidence that they had been told by an officer of the Council that it had "no problem with the concrete-batching plant except for its concern as to the deterioration which heavy traffic may cause to Burtons Bridge". There was evidence that: the second respondent had engaged an engineer to investigate "the possible solutions available including the cost of strengthening or rebuilding Burtons Bridge"; the engineer had prepared sketches and specified materials for a steel and concrete bridge suitable for the movement of concrete mixing trucks and had received from the Water Resources Commission approval in principle of the proposal for the bridge subject to a condition which the engineer thought could be satisfied; the respondents were prepared to construct such a bridge.

The second respondent also gave evidence that the respondents were responsible for maintenance of the road which serves the plant. The second respondent swore that if the plant were closed the respondents and their families "would be caused hardship in loss of income". It was said that the three brothers were "able to pay the staff and support our families on the profit which is generated from the sale of the concrete". It appears that the staff employed consisted, as at August 1991, of a fourth brother of the respondents as a full-time employee, as well as two part-time employees.

In addition to the evidence which has been mentioned, affidavits were sworn on behalf of two owners of land close by the subject land, to the effect that they had no objection to the continued operation of the plant, which did not disturb them. One of the affidavits, from a Mr. T.G. Matthews, referred to the question of vehicles on the road leading to the plant:

"The traffic travelling to and from the Respondents' plant is negligible. That traffic does consist of heavy vehicles, but there are also a number of other heavy vehicles including cattle trucks and hay trucks which regularly travel along E Summervilles Road ".

It will be noted that this affidavit, if it be correct, would tend to make one doubt the validity of an implication in the second ground of the refusal of the respondents' application to the Council, quoted above.

However, the trial judge did not make any finding on this point.

A curious and, perhaps, unique feature of the case is that the material gives no indication of the identity of the appellant named in the papers. It is not even proved to exist, nor is any indication given of its place of incorporation (if any), nor whether it carries on any business. It was suggested from the bar table that one might suspect it to be a competitor of the respondents in the concrete business; but there is nothing in the material to suggest that the appellant's interests, whatever they may be, would be in any way affected by the continuation of the activities of which it complains. One would have expected the appellant to indicate to the P.E. Court the nature of its interests, but it has not done so and in our view that is an important gap in its case. The only evidence on behalf of the appellant consisted of two affidavits filed by a law clerk in the employ of its solicitors.

The primary judge refused relief on grounds which may be summarised as follows. His Honour noted that it was clear that an offence against the relevant provisions of the town planning scheme had been shown. He held that it was not the case that "when a relevant offence is demonstrated, it is only in exceptional circumstances that relief by way of a restraining order will be refused". His Honour noted that there was no evidence of any direct detriment to any member of the community. He took into account that the area of the dispute between the respondents and the Council had been identified and -

"... that the respondent (sic) has demonstrated a preparedness to correct difficulties to which the Council has drawn attention. Negotiations continue on a basis aptly described by the respondent's counsel as 'harmonious'".

His Honour gave little weight to the respondents' complaints of hardship, expressing reservations about taking into account "loss of benefits from an activity which is clearly contrary to law". While the Judge appreciated that "any breach of the planning scheme is, generally speaking, contrary to the public interest, and not in any way to be condoned", he concluded that it would not be appropriate to exercise his discretion in favour of granting relief to the applicant.

The substantial bases of attack on his Honour's

reasons were two.

First, Mr. Derrington argued that the primary judge should have held that once a breach was shown there was a prima facie right to an injunction; it was argued that an injunction should go to restrain such a breach, except in special circumstances. Secondly, counsel argued that the primary judge was wrong in taking into account that there were continuing negotiations between the respondents and the Council.

The first proposition does not appear to be supported by any of the language of the statute, but it was argued that, on general principles, the Court should equate the test to be applied in a suit of this kind brought by a private individual with the test to be applied when the Attorney-General sues. Apart from statute, the Attorney- General is in general the only person entitled to sue for an injunction to redress a public wrong: Gouriet v. Attorney- General [1978] A.C. 435. Where the Attorney-General does so, the Court has a discretion whether or not to grant relief, but grounds which might militate against granting relief in a suit between private citizens would be less likely to do so where the Attorney-General sues to vindicate public rights: Associated Minerals Consolidated Ltd. v. Wyong Shire Council [1975] A.C. 538. There is authority for the view that the opinion of the Attorney-General that the acts complained of warrant the grant of an injunction should carry weight with the Court and that the discretion should normally be exercised, in cases of persistent and deliberate breaches, in favour of granting the Attorney-General an injunction: Attorney-General v. Harris [1961] 1 Q.B. 74 at 94, 95. It is unnecessary, in the present case, for this Court to determine the precise extent of the advantage the Attorney-General enjoys in such cases, by comparison with the plaintiff in a suit between private citizens, for as will appear we do not think that that advantage is shared by any private plaintiff. The submission to the contrary was based, in part, on the views expressed by the Full Court of the Federal Court in Tobacco Institute of Australia Ltd. v. Australian Federation of Consumer Organisations Inc. (1988) 19 F.C.R. 469. It is enough to say that the Full Court's decision was concerned with questions other than whether a private plaintiff, suing to enforce public rights, is to be treated as generously as is the Attorney-General.

As was pointed out on behalf of the appellant, s.2.24 of the Act makes it clear that the appellant was not obliged to assert that rights vested in it (assuming there are any) could be affected by the breach of which it complains; no question of locus standi arises. It is, in our view, quite another thing to say that the appellant must be treated as if it were the Attorney-General for the purposes of exercising the discretion to grant or refuse relief. The remarks made in Attorney-General v. Harris, to which we have referred, indicate the basis of the favourable treatment of the Attorney-General:

"I do not ... agree with the Judge when he says that the Attorney-General is in no better position than any other litigant. For the Attorney-General represents the community, which has a larger and wider interest in seeing that the laws are obeyed and order maintained". [1961] 1 Q.B. at p.95.

The appellant in no sense represents the community and the Court has not been told what is its interest in the present proceedings.

The problem being discussed has been dealt with to some extent in New South Wales, where legislation similar to the provisions in question here has been considered from time to time: see s.123(1) of the Environmental Planning and Assessment Act, 1979 which provides that:

"Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach".

Cripps J. held in the Land and Environment Court of New South Wales, in Rowley v. New South Wales Leather and Trading Co. Pty. Ltd. (1980) 46 L.G.R.A. 250, that the exercise of the Court's discretion should not be approached as if the Attorney-General were the applicant: 260. His Honour remarked:

"The duty of the Attorney-General is to represent the public interest and to act accordingly. In relator, as well as non- relator actions he is entitled to see the pleadings, to be consulted during the proceedings and is required to approve any compromise ... when the Attorney- General brings proceedings relief is refused only in exceptional circumstances ...

But this principle, in my view, has no application to proceedings brought by a private citizen under section 123 of the Environmental Planning and Assessment Act, 1979. It is not that the court will not take the public interest into account or that it will not pay due regard to breaches of the law. But the assumptions made in a suit to which the Attorney- General is a party cannot be made in a private suit. The discretion to be exercised in these proceedings involves the weighing up of all relevant factors - not only the public interest, but also the rights and interests of the parties including matters of conduct, hardship and convenience" (p.260, 261).

The width of the considerations regarded as relevant under the New South Wales legislation is illustrated by the factors mentioned in the judgment of Kirby P., with whom the other members of the Court of Appeal agreed, in A.C.R. Trading Pty. Ltd. v. Fat-Sel Pty. Ltd. (1987) 11 N.S.W.L.R. 67 at pp.82, 83. They included practical inconvenience attendant upon the grant of an injunction, whether or not there were complaints in the neighbourhood, whether persons who complained were residents of the area, whether the activity complained of was causing damage and the length of time during which it had been carried on. In considering a similar application made by a local authority, Kirby P. suggested a number of guidelines applicable to the exercise of the Court's discretion:

Warringah Shire Council v. Sedevcic (1987) 10 N.S.W.L.R. 335 at 339-341. His Honour remarked:

"Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens ... This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary ..." (p.340).

One should not impute to the Queensland legislature ignorance of the practice which appears to have been adopted in New South Wales when considering such applications as these made by private persons. There, the discretion has been treated as being very wide indeed; its exercise involves, but is by no means confined to, consideration of the undesirability of allowing deliberate breaches of the planning laws. It is unnecessary to attempt to make a list of those matters which should and those matters which should not be considered in determining an application of the present kind; it is enough to say that we are of the view that, at least where a private applicant applies, the Court has a wide discretion to grant or refuse an injunction and is not constrained by any rule that it must enjoin the illegality unless special circumstances are shown: contra Provincial Fruit Co. Ltd. v. H.J. Fine & Sons (1980) 30 O.R. (2d) 262, 115 D.L.R. (3d) 641, reversed on other grounds (1981) 34 O.R. (2d) 230, 128 D.L.R. (3d) 252, (C.A.). We are of opinion that the submission that there was a prima facie right to an injunction in the present case and that the Judge should have so held is incorrect. His Honour properly approached the matter as necessitating the exercise of a wide discretion.

Further, we are of opinion that his Honour was not in error in taking into account the evidence concerning negotiations between the Moreton Shire Council and the respondents. In some circumstances at least, it will be proper to treat as weighing against the grant of an injunction that efforts are being made so to arrange matters that the illegality is brought to an end by a grant of the appropriate consent.

Of course, the Judge might well have taken the view that, in a case of this sort, it is appropriate to grant an injunction suspended for a suitable period, rather than to refuse one altogether - the period being calculated to give a reasonable time to pursue an application for consent; however, no contention was advanced that the Judge erred in law in failing to approach the matter in that way.

We would add that, as is perhaps implied above, the Judge would have been entitled to take into account, as a point in favour of the respondents, that there was no indication of the interest of the party applying for an injunction.

It is necessary to return to the procedural point
mentioned above. The record includes no formal order of the

Court below; nor is one to be found in the P.E. Court file.

The reasons for judgment end as follows:

"... I have concluded that it would not be appropriate to exercise my discretion in favour of granting relief to restrain the breach of the planning scheme complained of".

While no point was taken about it, it seems to us that the absence of a formal order disposing of the application is at least an irregularity. It may be that one should regard the words we have quoted as, in strictness, an expression of opinion rather than a determination. But, not without doubt, we have accepted the parties' apparent assumption that his Honour made a determination, enlivening the jurisdiction of this Court.

The order will be that the appeal to this Court be dismissed and that the appellant pay the respondents' costs, to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 83 of 1991

Before the Court of Appeal
The Chief Justice
Mr. Justice Pincus

Mr. Justice Davies

BETWEEN:

NRMCA (QLD) LTD

(Applicant)

Appellant

AND:

VICTOR JOHN ANDREW and

GEORGE WILLIAM ANDREW

(Respondents)

Respondents

JUDGMENT OF THE COURT

Delivered the Third day of March 1992

CATCHWORDS: LOCAL GOVERNMENT - LOCUS STANDI - Appeal from refusal of relief by Planning and Environment Court in respect of breach of planning scheme - whether prima facie right to injunction - whether test to be applied to private individual equates with that of Attorney-General - whether judge erred in taking into account negotiations.

Local Government (Planning and Environment) Act 1990 ss.2.24, 7.4(3)

Counsel:	Mr. R. Derrington for the Appellant Mr. R. Mack for the Respondents
Solicitors:	Carter Newell for the Appellant Cleary & Hoare for the Respondents
Hearing Date(s):	12 February 1992