Pacific Paradise Resort Pty Ltd v Sunshine Coast Regional Council - [2010] QPEC 37

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Pacific Paradise Resort Pty Ltd v Sunshine Coast Regional Council [2010] QPEC 37

PARTIES:

PACIFIC PARADISE RESORT PTY LTD (ACN 098 002 763)

(Applicant)

and

SUNSHINE COAST REGIONAL COUNCIL

(Respondent)

FILE NO/S:

D26 of 2009

DIVISION:

Planning and Environment Court of Queensland

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court of Queensland at Maroochydore

DELIVERED ON:

23 April 2010

DELIVERED AT:

Maroochydore

HEARING DATE:

7 – 9 December 2009, written submission received up to 11 February 2010

JUDGE:

J.M. Robertson DCJ

ORDER/S:

Application dismissed

Application for reserved costs refused

Liberty to apply within (21) days of delivery of judgment

CATCHWORDS:

PLANNING AND ENVIRONMENT – originating application seeking declaratory relief that contributions payable under headworks infrastructure conditions in sub-divisional and rezoning approvals have been paid, whether Policy to which conditions refer was lawful and/ or uncertain

EVIDENCE – where application amended substantially a number of times, where applicant alleges Council did not comply with law in amending Policy by increasing contribution rates; where applicant’s case relies almost entirely on documents produced by disclosure and/ or subpoena, where presumption of regularity applies and applicant has onus of establishing that Council acted unlawfully

ESTOPPEL – whether the sealing of Plans by Council for various stages of a 5 stage development constitutes an estoppel by conduct

COSTS – where applicant seeks reserved costs of aborted earlier hearing on the basis that Council failed to comply with the Courts procedural requirements

Acts Interpretations Act 1954 (Qld)

Building Units and Group Titles Act 1980 (Qld)

Integrated Planning Act 1997 (Qld)

Local Government Act 1936 (Qld)

Local Government (Planning and Environment) Act 1990 (Qld)

Statutory Instruments Act 1992 (Qld)

Attorney General (New South Wales) and Quinn 1989 to 1990 170 CLR1

Jurkovic and the Corporation of the City of Port Adelaide (1979) 41 L.G.R.A 71

Minister for Natural Resources v NSW Aboriginal Land Council & Anor (1987) 9 NSWLR 154

Morris v Kanssen [1946] AC 459

COUNSEL:

Mr S. Keim SC with Mr G. Allan for the applicant

Mr R. Litster SC with Mr J. G. Lyons for the respondent

SOLICITORS:

P&E Law for the applicant

SCRC Legal Services for the respondent

Introduction

Pacific Paradise Resort Pty Ltd (Pacific) is the owner of a resort development at 151 - 53 Mudjimba Beach Road, Mudjimba on the Sunshine Coast. The resort, which is known as the Twin Waters Garden Villas, has been fully developed over 5 stages consequent upon a re-zoning approval granted by the former Maroochy Shire Council on 25 January 1993.

Mr Giuseppe Volpe is a director of Pacific and gave evidence in these proceedings on its behalf. He was the only witness to give oral testimony. Pacific’s case in these proceedings relies upon all affidavits filed by the Council up to and including 8 September 2009, and documents exhibited to various affidavits of its solicitor Mr Michael Baker-Jones exhibiting each and every document disclosed or produced by Council in response to various subpoenas.

Mr Volpe was the original developer of the resort but sold to another developer Wright Brothers (Qld) Pty Ltd (Wright Brothers) in 1993 after the re-zoning approval. Wright Brothers were the owners at the time of the approval of a subdivisional plan on 7 September 1998.

The subdivisional plan provided for the development over 5 stages of 105 units. Wright Brothers went into liquidation, and Pacific, (at first as a joint venture with companies associated with Peter Burnett) in 2002, purchased the development from the liquidator and/or Mortgagee in possession. The original re-zoning approval in 1993 contained conventional water and sewerage contribution conditions ((2) and (3)), and similar conditions ((17) & (18)) in different terms were contained in the 1998 subdivisional approval.

When Pacific became the owner it applied successfully for a material change of use to Council to amend (in effect) Stage 4 to add more units which became Stage 6, but is referred to by Mr Volpe as being part of Stage 4. Mr Volpe on behalf of Pacific says that he discovered for the first time in 2006, when plans were lodged for sealing by Council in relation to Stage 5, that Council maintained that there were contributions outstanding under the headworks conditions. Mr Volpe says that when Pacific purchased the land, and until the end of 2006, his belief was that all contributions had been paid. He says that he held this belief from what he had been told by Mr Burnett (his company had built a number of units for Wright Brothers), and a Mr Baumann (now deceased) who was apparently closely involved with the development during the Wright Brothers ownership of the land. Mr Volpe says that his belief was confirmed by Council’s decision to seal survey plans for Stage 3 & 4 without raising any suggestion that contributions were outstanding.

In these proceedings Pacific seeks relief from payment of any outstanding headworks contributions by way of this Court’s power to make declarations under s 4.1.21(1) of the Integrated Planning Act 1997 (the IPA), by attacking the validity of both sets of conditions (essentially on the grounds of unlawfulness and/or uncertainty), and the validity of the 1998 Policy which is taken up by the headworks conditions in the subdivisional approval. Pacific’s argument is that, in amending the 1985 sewerage and headworks policy (the 1985 Policy), Council did not, (prior to the commencement of the Local Government (Planning and Environment) Act 1990 (the PEA), act in accordance with the relevant law, such that the 1985 Policy did not survive the commencement of the PEA in 1991. Pacific has a number of alternative arguments in the event that their primary argument fails. It contends that Council is now estopped from asserting that there are headworks contributions owing in relation to Stages 3 and 4 on grounds that Council has represented by its conduct that no such fees are payable.

Council’s response is that the resort to the declarations power is not available to Pacific in circumstances in which no appeal had ever been lodged under the PEA against the imposition of either set of conditions; and that what Pacific is trying to do is to impermissibly do indirectly what it cannot now do directly. In the alternative, Council submits the conditions are not uncertain and are valid conditions and that there is no or insufficient evidence, that in formulating and/ or amending the relevant policies, Council acted contrary to the law. Council submits that even if I found on the balance of probabilities that there had been some non-compliance with the law in relation to the amendments to the 1985 Policy and the formulation of the 1998 Policy, for various reasons the consequences of making the declarations sought by Pacific now would be potentially so significant as to dissuade me on discretionary grounds from making the declarations sought.

A brief history of the proceedings

Pacific’s case has changed significantly since it filed its first originating application in this Court on 28 January 2009.

On 20 February 2009 a directions order was made by consent which included an order for mutual disclosure and inspection. The matter was transferred to the Planning and Environment Court in Brisbane by Order dated 1 May 2009 and was listed for hearing in that Court on 28 & 29 May 2009.

As can be seen by Pacific’s outline of argument filed on 11 May 2009, the thrust of the first originating application was to assume the validity of the relevant Planning Policies and the headworks conditions, but to argue that by use of the correct method for calculating headworks contributions (by reference to those Policies) in fact Pacific (and its predecessors in title) had paid more than was actually owing.

As more documents were disclosed Pacific’s case changed radically. When the matter came on for hearing before Judge Andrews SC in Brisbane on 28 May it was adjourned, and a further directions order was made including an order that leave be given to Pacific to amend its application. By paragraph 7 of the order made that day his Honour reserved ‘the applicant’s application for costs of and thrown away by the adjournment’. Separate outlines have been lodged in relation to that application which his Honour reserved for my decision. Essentially Pacific argues that Council did not comply with procedural requirements relating to disclosure and this necessitated the adjournment. Pacific persists with its application for costs notwithstanding the radical nature of the change to its case and I will deal with the competing submissions about the reserved costs later in my reasons.

The application amended in accordance with Judge Andrews’ order was filed on 5 June 2009. It introduced allegations against Council of acting unlawfully in amending the 1985 Policy but did not (as his Honour’s order had anticipated) strike out paragraph 3 of the first application. These amendments introduced a system of renumbering of paragraphs in the prayer for relief and in the supporting grounds that has led to the odd numbering in the form of the application which was the subject of the final hearing.

By arrangement with this Court the matter was to be heard in Maroochydore in June. Pacific then served a further amended application which led Council to seek that the matter be reviewed, which it was, before me on 15 June 2009. At that review and after lengthy debate I made a number of orders including an order granting leave to amend in accordance with the further amended application a copy of which was marked Exhibit 4 on that day. The application amended accordingly was filed on 17 June 2009. As the transcript of that day’s hearing will reveal, Mr Litster SC submitted, and Mr Keim SC seemed to concede, that a number of the declarations sought in the application as amended were beyond jurisdiction. Mr Keim SC submitted that nevertheless the Court could still decide these issues as part of a process of factual reasoning towards making declarations which he submitted were within power.

Pacific was anxious to proceed with the application later in the week of 15 June however I decided that it would be oppressive to the Council to force it on in the circumstances (in particular) of the late delivery of the third amended application. The hearing was listed for a four day hearing to commence on 21 September, and was rescheduled to proceed on 7 December 2009 by agreement of the parties.

A copy of the third application (omitting the parts excised and underlining in red and blue as required by the Rules) was filed on 12 November 2009 and the hearing proceeded on the basis of that pleading which is described in the written outlines as the second further amended originating application (SFA-OA).

The final application

The SFA-OA in its prayer for relief seeks the following orders:
1B      It is declared that the Local Planning Policy – Developer Contributions towards Water Supply and Sewerage Infrastructure – adopted by the Maroochy Shire Council on 24 March 1998 in unlawful and invalid, such policy being made in breach of s 1A.4(1) of the Local Government (Planning and Environment) Act 1990, whereby the Maroochy Shire Council did not regard, or proper regard, to the matters prescribed in s 6.2(7) of the Local Government (Planning and Environment) Act 1990.
1E       In the alternative, to the orders sought at paragraph 1B herein, it is declared that all amendments purportedly made to the Policy for Developer Contribution for Water Supply and Sewerage Services adopted by resolution of the Maroochy Shire Council on 24 March 1998, as and from 30 March 1998 are invalid, being unlawfully made in breach of s 6.1.16(1) of the Integrated Planning Act 1997.
1.        Further, or in the alternative, a declaration that all contributions have been paid to the Maroochy Shire Council, now the Sunshine Coast Regional Council, for water supply headworks and sewerage supply headworks in accordance with the conditions of the rezoning approval of Lots 533, 503, and 504 Portion 512 Parish of Maroochy, notified in the Queensland Government Gazette on 29 October 1993.
2.        Further, or in the alternative, a declaration that there are no contributions payable in respect of water supply headworks and sewerage headworks to the Sunshine Coast Regional Council, in respect of the Development Approval issued by a delegate of the Maroochy Shire Council on 7 September 1998 in respect of Application Number L987021 over land described as Lots 498, 499, 503 and 504 RP 91398 and Lot 4 RP908889 Parish of Maroochy.
2A.     A declaration that condition 2 and 3 have been unlawfully imposed, in breach of s 6.2(2) and s 6.2(10)(a) of the Local Government (Planning and Environment) Act 1990, and are thereby invalid and do not form part of the rezoning approval notified in the Queensland Government Gazette on 29 October 1993 being gazettal of the decision by the Maroochy Shire Council on 25 January 1993 to approve the rezoning of Lots 503, 504 and 533, Potion 512, Parish of Maroochy, Midjimba Beach Road, Midjimba from Rural A (one lot of 3.766 hectares) and Residential A (two lots each of approximately 401.5m²) to the Residential B zone.
3.        A declaration that the decision by the Maroochy Shire Council on 4 September 1998 to impose conditions 17 and 18 as part of the Development Approval subsequently issued by the delegate of the Council on 7 September 1998 in respect of Application Number L987021 over land described as Lots 498, 499, 503 and 504 RP 91398 and Lot 4 RP908889 Parish of Maroochy was unlawful, in breach of s 6.1.29(3) and s 6.1.30(3) of the Integrated Planning Act 1997 and s 6.2(2), s 6.2(5) and s 6.1(1)(c) of the Local Government (Planning and Environment) Act 1990, and thereby invalid.
4.        Such other or further order as the Court deems fit.

A more detailed history of the development and Council approvals

Mr Volpe was the developer when the original rezoning approval was given in 1993. Relevantly, to the issues raised in the SFA-OA, the rezoning approval was in these terms:
“Approval of rezoning application
Application to rezone Lots 533, 503 and 504 portion 512 Parish of Maroochy, (14) Mudjimba Beach Road, Mudjimba, from Rural A and Residential zones to Residential B zone – G Volpe…Council at its meeting dated 19 January 1993, resolved to approve the application subject to paragraph (a) and (b) below;
1.          The outcome of any appeal which may be lodged with the Planning and Environment Court within forty (40) days of the date of the Council meeting noted above, by any of the following principal objectors to the application;…
2.          Water headworks
Contribution towards water supply/headworks in accordance with Council Policy at the time of payment. Payment of the water supply headworks contribution applicable to this rezoning is required to be paid at the time of the subdivision of the land or as a condition of development whichever is applicable at the rate applicable at that time. The payment of headworks associated with the subdivision of land shall be prior to the sealing of a plan of subdivision, and a development consent permit and as of right development prior to the granting of any building permit.
3.          Sewerage headworks
Contribution towards sewerage headworks in accordance with Council Policy at the time of payment. Payment of the sewerage headworks contribution applicable to this rezoning required to be paid at the time of the subdivision of the land or as a condition of development whichever is applicable at the rate applicable at that time. The payment of headworks associated with the subdivision of land shall be prior to the sealing of a plan of subdivision and with a town planning consent permit and an ‘as of right’ development prior to the granting of any building permit.
…
8.        Criteria for development
The development of the site shall satisfy the following development criteria:
(a)     provide for a range of lot sizes ranging from 250m² to 450m²with 450m² lots adjoining existing residential development…
…
(d)    the site and density shall not exceed 105 dwelling units (including attached dwellings)…”
It is common ground that no challenge was made to this Court against any of the conditions of the rezoning approval and in particular conditions 2 & 3. By Order in Council dated 29 October 1993, the Planning Scheme was amended in accordance with that rezoning approval.

Both conditions 2 & 3 refer to contributions (the water supply and sewerage headworks) ‘in accordance with Council Policy at the time of payment’.

It is common ground that the Council Policy in place at the time was the Policy for Developer Contributions for Water Supply and Sewerage Services adopted by resolution of the Council on 27 August 1985 (the 1985 Policy). That Policy (as reviewed and/or amended) in the intervening years was the Policy in place at the time of the 1993 rezoning approval. A full copy of the 1985 Policy is Exhibit MBJ1 to the Affidavit of Mr Baker-Jones filed 8 April 2009. The Policy is a comprehensive document covering some 38 pages including six appendices including Appendix 1 (Accepted Rates and Arrive Rates) for water supply headworks contribution and Appendix 2 (the rates for sewerage headworks contributions).

After the 1993 rezoning approval, Mr Volpe sold the land to Wright Brothers. The contract of sale is not in evidence but he says the land was sold ‘on vendor terms such that the Wright Brothers would pay for the purchase of the land within 5 years’.

Wright Brothers were the owners of the land when a Plan of Subdivision with Survey Plan 101644 was approved on 18 September 1998 which related to Stage 1 of the development.

The subdivisional approval of 7 September 1998 contained conditions 17 & 18:
“17.Contributions shall be made towards water supply headworks in accordance with Council’s Policy at the time of payment.
18.Contribution shall be made towards sewerage headworks in accordance with Council’s Policy at the time of payment.”
Attached to the Decision Notice dated 7 September 1998 was a copy of s 4.1.27 of the IPA dealing with Pacific’s right of appeal. Again, it is common ground that no appeal was lodged against the headworks conditions.

The applicable Policy (the 1998 Policy) was adopted by Council on 24 March 1998 pursuant to s 6.2(b) of the PEA, and superseded the 1985 Policy. The Integrated Planning Act (the IPA) commenced on 30 March 1998 and repealed the PEA. The 1998 Policy continued to have effect as a “local planning policy” pursuant to s 6.1.13 of the IPA, and was therefore the relevant Policy taken up by (17) and (18) of the conditions to the subdivisional approval.

At some time after the registration of the Survey Plan, Wright Brother was placed in the hands of a receiver and ultimately went into liquidation. Mr Volpe says that Mr Burnett came to an arrangement with the liquidator, and it was his company, Burnett Investments Pty Ltd which registered SP 109960 on 5 January 2001 which related to Stage 2 of the development. Mr Volpe says he was owed $1.8 million by Wright Brothers which was apparently not secured by any form of registered security. He caused a caveat to be lodged, which lead to a joint venture agreement with Burnett interests to continue the development, and Pacific was formed to be the corporate vehicle for the joint venture.

On 25 June 2002, Pacific purchased the land from the mortgagee in possession for $5 million. The Plan for Stage 3 was registered on 24 June 2003 and Mr Volpe says that Burnett was responsible for lodging that Plan.

In his affidavit, Mr Volpe says simply that Burnett eventually sold his share of the Pacific Paradise resort. As cross-examination by Mr Litster SC revealed, Mr Volpe and his partners in the joint venture with Burnett interests, had a serious and financially significant falling out with Burnett which lead to litigation in the Supreme Court which was eventually compromised by a Deed of Settlement dated March 2004 which was tendered by Mr Litster SC through Mr Volpe during cross-examination.

In that cross-examination, Mr Volpe said that the falling out with Burnett occurred soon after the registration of Stage 3, and that Mr Burnett was his main source of information about the payment of headworks contributions prior to the formation of the joint venture. He acknowledged that at all times his dealings with Council were through third party consultants.

In his affidavit he says this is at paragraph 11:
“It was Mr Burnett that informed me prior to Pacific Paradise Resort purchasing the land that all contributions for the entire development had been paid. Mr Burnett told me that no contributions had been required by the Council when it endorsed the Stage 2 Survey Plan and I recall that no contributions were required when the Council endorsed the Stage 3 Survey Plan. I therefore believe that the time Pacific Paradise Resort purchased the land on 25 June 2002, and continued to believe, when the Council endorsed the Survey Plan for Stage 3 on 16 May 2003, that all contributions for the entire development had been paid before Pacific Paradise Resort purchased the land.”
Prior to the lodgement of the Survey Plan for Stage 4, Pacific made a material change of use application to Council which effectively increased the number of units in Stage 4. Council approved the application under cover of letter dated 27 January 2005. Council has always referred to this approval as ‘Stage 6’ although it did in reality involve an increase in intensity of development of Stage 4. Mr Volpe in his evidence says that he has always regarded the MCU approval as being part of Stage 4 and not a separate stage.

That approval contained conditions for contribution to sewerage and headworks and Pacific has paid a sum of money for this purpose as calculated by Council. Survey Plan 109962 (which included the changes approved by the MCU approval) relating to Stage 4 of the development was endorsed by Council on 19 July 2005 and registered on 25 July 2005.

Pacific then proceeded with Stage 5 of the development. Its solicitors forwarded the Plan of Survey to Council for sealing on 25 October 2006. On 4 December 2006 Council (under the hand of Sonia Barnes) advised the solicitors (inter alia) that:
“Receipt is acknowledged of your application for endorsement of the abovementioned survey plan received on 3 November 2006.
Please confirm details (receipt no.) that infrastructure charges/headworks contributions have been paid for this stage of development.
If no record of payment is found, please request in writing to Council’s Development Contributions Officer (Fax: 5441 8029), that the contributions be calculated and raised for payment.
Council will finalise assessment of plan sealing upon receipt of all the outstanding items mentioned above.”
On 5 December, Pacific’s then solicitor Mr Bruce Sockhill advised Council that on his client’s instructions there were no other fees payable. He said, ‘Could you please confirm to us whether or not there are further fees payable or whether this is full payment of the matters raised in your facsimile under reference.’

The next exhibit to Mr Volpe’s affidavit marked ‘GV13’ is a hardcopy of an e-mail from Mr Sockhill to Mr Volpe dated Tuesday 12 December 2006. It is in these terms:

“I have this morning spoken with Sonia from the Maroochy Shire Council. She advises fees for Stages 1, 2 & 3 are paid and that fees for Stage 4 have been invoiced under Invoice No. 135389 in approximately July 2005.

She says that those fees were not paid as at that time Council could not determine the infrastructure charges for Stage 4 and released Stage 4 on the basis that there were further stages to be developed.

In relation to Stage 4, there was a material change of use which was approved under approval MCU040061 and conditions 3, 4, 5 & 6 of that approval required payment of infrastructure contributions for Stage 4.

Those fees at that time were approximately $88,000.00 but now as a result of a fee increase, those fees will be approximately $100,000.00. Council has no record of payment of those infrastructure charges. The receipt that I quoted in my previous correspondence to her dated 5 December being Receipt No. 118550 is simply a receipt for Council’s sealing of the Plan and is not in any way a reference to the infrastructure contributions.

Sonia is of the belief that the infrastructure/headworks charges for Lot 4 have not been paid but if you have any records indicating payment of those fees, then she has asked that you kindly produce those for her.

She is hopeful of determining today whether or not Council will release Stage 5 without payment of those fees on the basis that there are further stage to be finalised however she advises that the infrastructure fees go up each year. She also advised that she has a letter on file indicating that stages 4 & 5 are approved under a superseded planning scheme such that Stage 4 & 5 are as of right, but this does not effect the infrastructure charges payable for Stage 4.”

Mr Sockhill did not give evidence either orally or in the form of an affidavit but annexed to Mr Volpe’s affidavit is a reply he made to Council on the instructions of Pacific. That reply is dated 13 December 2006 and is in these terms:

“Thank you for your telephone advices of 11 December 2006.
We have raised your comments with our client who confirms that the infrastructure charges for Stage 4 have not been paid. He acknowledges that the original assessment was approximately $88,000.00. However, asks that we forward to you a copy of an advice from Mr Barry Hewitt dated 2 February 2005 advising a re-assessment of those fees to $59,689.19.
Our client believes that this is a confirmed outstanding amount and upon your confirmation will forward a cheque for that amount to you.”

Ms Barnes responded on 19 December 2006 and a copy of a Notice of Charge issued on 9 January 2007 is attached. In that letter Ms Barnes said:

“Further to your facsimile of 20 December 2006 regarding outstanding infrastructure charges for the above development.
Please find attached Notice of Charge for the outstanding amounts for Stages 4, 5 & 6 of this development.
In order to release survey plan SP109963 covering Stage 5 of development, the charges relating to this stage are required to be paid as soon as possible.
Stage 6 charges can be paid upon development of that stage. Stage 4 charges will need to be paid at your client’s earliest possible convenience, and certainly prior to finalising all stages of development.”

The Notice of Charge which is part of Exhibit ‘GV15’ to Mr Volpe’s affidavit indicates that Council were then claiming a total of $693,951.84 for headworks contributions outstanding in relation to Stage 4, Stage 5 and Stage 6 (the MCU).

Pacific disputed these charges. Ultimately, it was agreed that it would provide a bank guarantee and Council would (and did) seal the Plan of Survey for Stage 5 on condition that Pacific would make the present application in a timely way.

As I’ve noted Pacific now asserts that it is not liable to pay any further headworks contributions on a number of bases.

The ‘evidence’

Apart from Mr Volpe’s affidavit, which does little more than provide a historical perspective of the development from his point of view, Pacific’s entire case is based on documentation disclosed by Council during extensive disclosure and produced in response to various subpoenas which is annexed to various affidavits of Mr Baker-Jones, and on various affidavits filed by Council including affidavits by its solicitor.

As I have noted Pacific’s case has altered substantially since the filing of the first application.

At its heart, Pacific’s application in its final form seeks declarations that no further contributions are payable. To achieve this, it asks the Court to draw certain inferences from a vast quantity of disclosed material, which inferences it submits will undermine the lawfulness of the two sets of headworks conditions. It relies on minutes and other documentation disclosed in relation to the 1985 Policy (which ceased to exist in 1998); and the 1998 Policy (which ceased to exist with Maroochy Plan 2000).

The applicant’s arguments

Pacific accepts that this Court does not have power pursuant to s 4.1.21(i) of the IPA to make declarations as to validity of the 1985 Policy, nonetheless it asks me to draw certain inferences which in effect, are that the previous Council did not act in accordance with the relevant law in amending and/or revising the 1985 and 1998 policies. It asserts that the 1985 Policy did not survive the introduction of the PEA.

Pacific accepts that it has the onus of establishing factual inferences on the balance of probabilities. It also accepts that to do so it must displace the presumption of regularity which is now enshrined in s 20 of the Statutory Instruments Act 1992:

“20 Presumption of validity
All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.”

A similar rebuttable presumption of regularity existed at common law. The common law presumption is very similar to the statutory presumption under s 20. It has been described in the New South Wales Court of Appeal in Minister for Natural Resources v NSW Aboriginal Land Council & Anor (1987) 9 NSWLR 154 at 164 by McHugh JA (as his Honour then was) after referring to Morris v Kanssen [1946] AC 459 as:

“Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.”

It would follow therefore that Council is presumed to have acted appropriately in amending the 1985 Policy unless Pacific can establish that it did not on the evidence on the balance of probabilities.

Mr Keim SC in his oral submissions submitted that on the basis of all the material disclosed it would be obvious that there is a ‘pattern’ that the previous Council was not diligent in acting in accordance with the applicable law relating to headworks contribution policies and that the presumption is overcome. In his oral submission he set out what he described as the 10 main points arising out of his client’s application whereby he submitted that I could find that the disclosed material revealed deficiencies in performance by Council over many years involving a flagrant disregard for the law. He went on to submit that I would be satisfied on the balance of probabilities that Council had failed to comply with the law, and he went so far as to submit that in the circumstances, a refusal to make the declarations sought on discretionary grounds, would, in effect, amount to a finding that the Council is above the law.

Mr Litster SC made I think a valid point in his submission when he submitted that given the passage of time, associated changes in legislation, and some examples (to which I will later refer) of documents known to be missing, it would be much more difficult to infer that such documents did not exist. He also makes the point that the very significant changes in the way in which Pacific has presented its case may also tell against the drawing of such inferences against the Council.

Discussion

Before discussing the law and Pacific’s arguments on the evidence it is important to remember that the fundamental philosophy behind the imposition of sewerage and headwork contribution conditions in development approvals, has always been to ensure that developers with the benefit of development permits, are required to make contributions on an equitable basis to allow developments to be connected to Council’s water supply and sewerage headworks either immediately or in the future. This philosophy was represented in the relevant law at the time of the promulgation of the 1985 Policy (see for example s 33(18E)(v)(a)(i)(A) and (B) of the Local Government Act 1936 (the LGA). Such contributions recognise the Shire-wide cost of such infrastructure and the obvious associated benefits to developers. Both sets of impugned conditions provide that payment be made in accordance with the Policy then in force at the time of payment. As Mr Litster SC observed, this enables a developer to defer payment (for example until it is close to receiving a return on its development, for example with lodgement of the survey plan); however the developer then assumes the risk that the contributions may be higher than they would have been at the time of the imposition of the conditions.

The 1985 Policy

As noted earlier, the prayer for relief which sought declarations in relation to the 1985 Policy has been abandoned. Pacific maintains its attack on the validity and/or lawfulness of amendments to the 1985 Policy as part of its case.

At its heart, the argument is that Council did not act in accordance with the relevant law in amending the 1985 Policy and therefore it ceased to have effect when the PEA commenced on 15 April 1991 because it was contrary to the PEA Act and therefore not caught by the savings and transitional provisions of the Act (s 8.10(4)(a)).

The alleged invalidity of amendments to the 1985 Policy

The first period under consideration is from the date of adoption of the 1985 Policy to 15 April 1991. The operative law was contained in s 33(18E)(e)(f)(g)(h) of the LGA which is in these terms:

“(18E)Contributions towards and payments of costs of water supply and sewerage works by applicant for rezoning or consent.
…

(e)The amount of any contribution required to be paid to a Local Authority under this subsection or under section 34(12H) shall be determined in accordance with a policy fixed from time to time by the Local Authority by resolution.

(f)A policy fixed by the Local Authority pursuant to paragraph (e) shall-

(i)specify the method or methods adopted by the Local Authority for determining the amount of any contribution to be made by an applicant towards the cost of water supply headworks, sewerage headworks, water supply works external or sewerage works external under this section or under section 34(12H);

(ii)specify the works, structures or equipment which the Local Authority determines to be water supply headworks or sewerage headworks, as the case may be, for the purposes of this subsection and section 34(12H);

(iii)supersede any provision of a town planning scheme, by-law or decision made by the Local Authority in relation to a matter contained in the Policy.

…
(g)In fixing a policy pursuant to paragraph (e), the Local Authority shall have regard to the following matters –

(i)the estimated cost to the construction and augmentation of the water supply scheme or sewerage scheme in respect of which contributions are to be made under this subsection or section 34(12H);

(ii)the need for augmentation (if any) of the water supply scheme or sewerage scheme in respect of which contributions are to be made under this subsection or under section 34(12H);

(iii)the estimated cost of such augmentation;

(iv)the area of land, the estimated population and the estimated number of allotments, or lots (if any) under the Building Units and Group Titles Act 1980, to be serviced by such augmentation;

(v)the application of the policy in relation to applications or classes of applications in respect of which contributions are to be made under this subsection or under section 34(12H) so as to secure a reasonable contribution by the applicant concerned towards the cost of water supply headworks, sewerage headworks, water supply works external or sewerage works external taking into account such of the following matters as are applicable to the application in question–

(a) the area of the relevant land;
(b)the estimated population to be serviced by the proposed development the subject of the application;
(c)the estimated number of allotments or lots (if any) under the Building Units and Group Titles Act 1980 to be created in connex[ct]ion with the proposed development;

(d) the proposed use of the relevant land;

(e)any other matter that the Local Authority considers should be taken into account for the purpose of securing a reasonable contribution by the applicant towards the cost of water supply headworks, sewerage headworks, water supply works external or sewerage works external, as the case may be.

(h)A copy of the Policy fixed by the local authority under paragraph (e) shall be placed on exhibition at the public office of the local authority and a copy of such policy shall be procurable from the local authority for such sum as is fixed by resolution.”

Pacific’s argument on this point is contained in paragraphs 53 to 61 of its trial argument (Document 56) outline:

“53. By resolution of the Council dated 27 August 1985, the headworks contribution per equivalent tenement for the subject land was fixed at $1,600 for water supply and $1,150 for sewerage.

54. By resolution of the Finance Committee of the Council dated 22 June 1989 and by resolution of the Council held shortly thereafter, the respondent purported to fix the level of the headworks contribution in the policy for the subject land at the per equivalent tenement levels of $1,800 for water supply and $1,300 for sewerage.

55. In purporting so to fix the policy, the respondent had regard only to changes in the Consumer Price Index. The respondent did not have regard to the factors set out as required factors in paragraphs 33(18E)(e), (f), (g) and (h) of the LGA.

56. In the premises, the purported changes to the contribution rates were invalid.

57. It appears that, on 31 December 1989, the respondent purported to fix the level of the headworks contribution in the policy for the subject land at the per equivalent tenement levels of $2,308 for water supply and $1,659 for sewerage. However, no evidence has been produced of a proper consideration by a meeting of the Council and no evidence exists of any regard having been given to the factors set out as required factors in paragraphs 33(18E)(e), (f), (g) and (h) of the LGA.

58. At a finance committee meeting dated 26 April 1990, a motion was passed to fix the level of the headworks contribution in the policy for the subject land at the per equivalent tenement levels which are set out at pages 38-40 of a document which has not been disclosed. A disclosed extract from a Fees and Charges Schedule suggests that the level of the headworks contribution purportedly fixed by that motion (and any subsequent meeting of the council) was for the subject land at the per equivalent tenement levels of $1,800 for water supply and $1,400 for sewerage.

59. A further disclosed document is entitled “Water and Sewerage Fees and Permits 1990/91”. Although the document is undated and appears to duplicate in a number of respects the rates shown in Document No. 107 (it shows the Applicable Rates for 1989/90 for Water for the Subject Land and the Applicable Rates for Sewerages for both 1989/90 and 1990/91), it records the headworks contribution for the subject land at the per equivalent tenant levels of $1,950 (an increase from $1,800 for 1989/90 as shown in Document No. 107) for water supply and $1,400 for sewerage.

60. However, no evidence has been produced of a proper consideration by a meeting of the Council and no evidence exists of any regard having been given to the factors set out as required factors in paragraphs 33(18E)(e), (f), (g) and (h) of the LGA.

61. The disclosed material evidences no other purported attempts to fix contribution rates by making changes to the 1985 policy prior to the commencement of the PEA on 15 April 1991. It is submitted that each of the purported amendments were not in accord with the requirements of paragraphs 33(18E)(e), (f), (g) and (h) of the LGA and were invalid. The construction of the PEA to the effect that a failure to comply with the requirements of that Act by failing to have regard to the factors laid down leads to invalidity of the resulting Policy or Policy amendment is appropriate. The ability to impose conditions for headworks contributions has always been strictly regulated to avoid Councils acting in a discriminatory manner or exploiting developments for general revenue purposes. That type of condition may be contrasted with other conditions which have, traditionally, only been subject to general requirements that they be reasonable and relevant.” (Quotes omitted)

The recitation of factual matters can be accepted. In my view the submissions contained in these paragraphs cannot be accepted.

I agree with Mr Litster SC that even if Council did not on the occasions it reviewed and changed the headworks contributions payable under the Policy specifically have regard to the matters set out in the relevant subsections of s 33(18E), this did not involve ‘fixing a policy’ on each occasion. Pacific’s submission unjustifiably assumes that each time the Council reviewed and changed the levels of contributions from those set in the Policy itself, Council was then ‘fixing’ the Policy anew and was required to have regard to the matters set out in the relevant subsections of s 33(18E). A reading of the Policy itself confirms that Council was aware of this distinction. For example, 2.01.4 refers specifically to a review of water supply headworks contribution rates from time to time. In relation to sewerage headworks contributions, different words are used but to the same effect. 2.02.4 of the Policy refers to contribution rates being ‘adjusted in accordance with variations from June 1985 as for the other contribution rates’. The fallacy in Pacific’s argument can be demonstrated by looking at the first example of ‘evidence’ which it submits involved ‘fixing’ the Policy. In the minutes of the Finance Committee of Council dated 22 June 1989 there is a note of a motion to ‘adopt headworks charges’ which is carried. Reference is also made to a memorandum dated 2 June 1989 of the Shire Engineer where reference is made to the CPI. Pacific alleges this involved ‘purporting so to fix the Policy’ when it did not. Council was acting to review or adjust the contributions.

I agree with Mr Litster SC that on a proper construction of s 33(18E) a clear distinction is made between “the amount of any contribution” (towards headworks) which “shall be determined in accordance with a policy fixed from time to time”, and fixing of the policy itself, in relation to which Council “shall have regard to” the matters set out in s 33 (18E)(g).

Paragraph 60 of the submission contains a fundamental error. Throughout the written submission it is asserted that (in effect) because Council has not produced any evidence of compliance (in this case with s 33(18E)) therefore it did not comply.

Such a submission fundamentally misconceives the burden of proof and also the point made in paragraphs 12-17 of Council’s trial submission:

“12.The Developer, by letter dated 8 September 2009, gave notice that it intends to rely, inter alia, on all affidavits filed by the Council to that point in time.
13.By that letter, the Developer also gave notice that it intends to rely on affidavits by its solicitor which, inter alia, take the (rather unusual) course of exhibiting each and every document disclosed (or produced in response to subpoena) by the Council.
14.So armed, the Developer attempts to displace the presumption that all conditions and preliminary steps required for the making of what can be conveniently referred to as “the 1985 Policy” and “the 1998 Policy” have been satisfied and performed.
15.It may be accepted that documents disclosed by the Council are admissible in evidence against the Council; but only as relevant, and as being what they purport to be, unless otherwise subject to proof.
16.Under UCPR 211, the duty to disclose extends only to documents which are in the possession or under the control of the Council that are directly relevant to a matter in issue.
17.Disclosure proves nothing about what is not disclosed. Production of documents in response to a subpoena proves nothing about what is not produced. There is no requirement in either situation to identify documents which have been, but are no longer, in the possession or power of the Council.Section 8.10 of the PEA contained the savings and transitional provisions, and pursuant to s 8.10(4) of the PEA, the 1985 Policy was a policy in respect of the Planning Scheme in force for the Council as at the date of the commencement of the PEA on 15 April 1991. Section 8.10.4(a) provided that to the extent it (the 1985 Policy) was not contrary to the PEA it continued to have effect as if it were a Planning Policy made under the PEA. There is evidence in the disclosed material that Council did proceed on the basis that the 1985 Policy would be its continuing Policy under the PEA. There is a reference in a memo from the Shire engineer to this effect shortly after the commencement of the PEA.” (Quotes omitted)

Pacific has never applied to the Court to enforce disclosure. In other words, it has not formally asserted that Council has failed to produce relevant documents. Certainly, there are a number of examples in letters from Pacific’s solicitor in which he does assert a failure to disclose but no application was ever made.

In its trial outline Pacific submitted firstly that the 1985 Policy was contrary to s 6.2(6)(b)(i) of the PEA which required a local planning authority (in respect to contributions towards water supply and sewerage headworks) ‘to…(1) specify the method adopted by the local authority in determining the amount of any contribution…’.

The argument is that as ‘method’ was used and not ‘method’ or ‘methods’ as in the LGA, therefore the 1985 Policy was contrary to s 6.2(6)(b)(i) of the PEA because it specified alternative methods. It was submitted that as s 32C(a) of the Acts Interpretations Act 1954 (‘words’ in the singular include the plural) came into effect after the commencement of the PEA, it could not assist. Pacific concedes in its supplementary outline filed after trial that it was wrong and that s 32C(a) preceded the commencement of the PEA, however it still maintains its argument. It has no merit in my opinion.

Applying the proper construction it is clear that ‘method’ in s 6.2(6)(b)(i) of the PEA includes ‘methods’ and the Policy is not contrary to the PEA in this regard.

Pacific further argues that the 1985 Policy is contrary to s 6.2(10) of the PEA which is relevantly in these terms as set out:

“(10) Where a local government decides to require an applicant to pay or contribute towards the cost of water supply headworks, sewerage headworks, water supply works external, sewerage works external (or any 2 or more of them) or pay the cost of water supply works internal or sewerage works internal (or both) under this section, the amount payable to the local government in respect of a prescribed application is to be paid at the time as may be agreed upon between the local government and the applicant, but in the absence of agreement, the amount is payable—

(a) where it is proposed to subdivide the relevant land—within 14 days after the date of receipt by the local government of notification by the applicant of the applicant’s intention to commence works in connection with the application and prior to commencing the works;

(b) where it is proposed not to subdivide the relevant land—within 14 days after the date of the granting by the local government of approval under the Building Act 1975; or
(c)where no building work is associated with the relevant land—prior to the commencement of the use.”

Time for payment of contributions is set out in 3.02 of the 1985 Policy. It can be readily inferred that the developer and Council agreed to a different timetable of payment by acceptance of the roadworks headworks contributions conditions by the developer at the time the land was subdivided.

If I am wrong in accepting Mr Litster’s argument, and the revisions to the charges in the Policy did indeed amount to a refixing of the Policy then the evidence referred to in Pacific’s outline does establish the Council did not on these occasions have regard to the matters set out in s 33(18E)(f) and (g); but there is no positive evidence that a due consideration of these matters would have lead to a different conclusion. In those circumstances the point taken by Pacific is purely technical and I would certainly exercise my discretion against granting declaratory relief for that reason and the reasons disclosed later in my judgment.

The next argument focuses on the alleged failure by Council to include the Policy in the ‘Register of Planning Policies’ as required by s 8.10(4) of the PEA:

“(4) Each policy of a local authority in respect of—

(a) its town planning scheme; and
(b) its subdivision of land by-law; and
(c) environmental impact;

in force immediately prior to the commencement of this Act, is, to the extent it is not contrary to this Act, to continue to have force and effect as if that policy were a planning policy made under this Act; and the local authority is to include each such policy in the register of planning policies for that local government.”

This submission relies again on what I will call the ‘reverse onus’ approach adopted by Pacific. It is timely to remember that in earlier manifestations of Pacific’s application, the validity of both Policies was assumed. The argument now is that because there is very little evidence of a Register of Planning Policies (s 2.8(2) of the PEA up to 23 July 1992, then 8.10(4) of the PEA) prior to 1993 in the documents disclosed, there was no compliance with these provisions. What has to be kept in mind is that at time of the 1993 rezoning approval and the 1998 subdivisional approvals, the developer would have readily been able to access a copy of the relevant policy to which reference is made in the headworks infrastructure conditions in both approvals. The purpose of such a register is certainly to give applicants and potential applicants and their advisors ready access to policies that may impact on the proposal in mind. One would have thought that any developer, with conditions such as the present which have the effect of putting off payment, would in any event keep up to date with changes to the rates. There is certainly some evidence that a Register did exist e.g. a copy of a Register ‘as at July 1993’ obtained from Council’s corporate library and said to be for staff use only. Pacific submits in effect that because documents of this nature have not been disclosed therefore they never existed. It is clear that experts in the field were aware of the existence of a Register, for example, a letter dated 18 April 1997 from Ken Hicks & Associates Pty Ltd, Consultant Surveyors (set out letter as in paragraph 43 of Pacific’s trial application).

Council’s reply to Ken Hicks & Associates is also in evidence. The CEO replied to Ken Hicks & Associates on 7 May 1997 stating that Council ‘does maintain a current Register of Local Planning Policies’, and set out where it could be inspected and relevant fees. Pacific’s submission describes the letter as unresponsive but it is some evidence that a Register existed.

I am not prepared to draw the inference that Pacific contends for and it follows that there is no basis for holding that the adoption of the 1985 Policy as a continuing policy under the PEA was invalid.

It follows that the 1985 Policy continued to have force and effect with commencement of the PEA on 15 April 1991.

Pacific also attacks changes made to contribution rates made between 15 April 1991 and 23 July 1992 where some amendments were made to relevant sections of the PEA.

Pacific’s argument in this regard is set out in paragraphs 62 to 66 of its trial outline:

“62. The amendments to the 1985 Policy during this period were required to be done in accordance with s 2.8 of the PEA.

63. Section 2.8 of the PEA, as originally enacted, has previously been set out and is repeated here:

“(1)A Local Authority may by resolution adopt planning policies which are not inconsistent with this Act and may amend or rescind those policies.
(2)Full details of each planning policy adopted pursuant to subsection (1) and each amendment or rescission of a planning policy so adopted are, as soon as practicable, to be recorded (together with the date it was made, amended or rescinded, as the case may be) in a register called the “Register of Planning Polices” to be kept by the Local Authority for that purpose.
(3)The Clerk is to give public notice in a newspaper of each new, amended or rescinded planning policy adopted pursuant to subsection (2) and in respect of each new policy or amendment, the purport thereof.
(4)On the date of commencement of a new planning scheme (other than a consolidated scheme pursuant to section 2.17), all planning policies existing immediately prior to the commencement of the new planning scheme cease to have effect.

(5) Each planning policy (other than planning policies referred to in sections 6.2 (6) and 8.2 (2)) is to have application throughout the planning scheme area.” [Emphasis added.]

64. The type of consideration for the adoption and amendment of a planning policy that had previously been mandated by paragraphs 33(18E)(e), (f), (g) and (h) Local Government Act 1936 was laid down in subs.6.2(7) PEA. In addition, an obligation, when amending an adopted policy, is imposed by subs.6.2(8) PEA to include a statement of reasons for the amendment in its processes.

65. Subsections 6.2(6), (7) and (8) PEA provided as follows:

“(6) The amount of any contribution required to be paid to a Local Authority pursuant to this section is—
(a) where a prescribed application is to subdivide land and the relevant land was at the relevant date in a zone under a planning scheme which would permit its use for a purpose envisaged by the prescribed application and the water supply headworks or sewerage headworks (or both), as the case may be, are available to service the relevant land—…
(b) in any other case, notwithstanding section 2.8(6) - to be determined in accordance with a planning policy adopted by the Local Authority which is to—
(i) specify the method adopted by the Local Authority in determining the amount of any contribution to be made by the applicant towards the cost of water supply headworks, sewerage headworks, water supply works external or sewerage works external (or any 2 or more of them);
(ii) specify the works, structures or equipment, including those operated and maintained by another Local Authority or other body, as the case may be, and referred to in subsection (12), which the Local Authority determines to be water supply headworks, sewerage headworks, water supply works external or sewerage works external (or any 2 or more of them) relevant to the locality;
(iii) supersede any provision of a planning scheme, interim development provision or local law made by the Local Authority in relation to a matter contained in the planning policy.

(7) In adopting a planning policy pursuant to subsection (6), the Local Authority is to have regard to the following matters—
(a) the estimated cost of the construction and augmentation of the water supply scheme or sewerage scheme in respect of which contributions are to be made under this section;
(b) the need for augmentation (if any) of the water supply scheme or sewerage scheme in respect of which contributions are to be made under this section;
(c) the estimated cost of the augmentation;
(d) the area of land, the estimated population or the estimated number of allotments (or lots (if any) under the Building Units and Group Titles Act 1980) to be serviced by the augmentation;
(e) the application of the planning policy in relation to applications or classes of applications in respect of which contributions are required to be made under this section so as to secure a reasonable contribution by the applicant towards the cost of water supply headworks, sewerage headworks, water supply works external or sewerage works external (or any 2 or more of them) taking into account any of the following matters applicable to the application—
(i) the area of the relevant land;
(ii) the estimated population or equivalent population to be serviced in relation to the relevant land;
(iii) the estimated number of allotments (or lots (if any) under the Building Units and Group Titles Act 1980) to be created in connection with the relevant land;
(iv) the proposed use of the relevant land;
(v) any other matter that the Local Authority considers should be taken into account for the purpose of securing a contribution by the applicant towards the cost of water supply headworks, sewerage headworks, water supply works external or sewerage works external (or any 2 or more of them), as the case may be.

(8) Where a Local Authority, in considering the requirements of subsection (7), amends a planning policy adopted pursuant to section 2.8 it is to include a statement of the reasons for the amendment.”

66. The combined effect of the three subsections goes beyond the requirements of the earlier legislation. When amending the 1985 Policy after it was purported to have become effective for the purposes of the PEA, it was necessary not only to have regard to the matters set out in subs.6.2(7) PEA but also to record the results of such considerations in a statement of reasons brought into being at the time of making the amendment.” (Quotes omitted)

The submission then goes on to deal with amendments in May 1991, 7 April 1992, 26 May 1992. The argument is summarised at paragraph 92:

“The amendments were unlawful because the Council failed to:

(i) record a copy of the amendment to the planning policy in a register called the ‘Register of Planning Policies’ (s 2.8(2) of the PEA);

(ii) failed to give any public notice in a newspaper of the amendments to the planning policy in the purport of these amendments (s 2.8(3) of the PEA);

(iii) failed to have regard to the matters made mandatory considerations by subsection 6.2(7) PEA; and

(iv) failed to include the statement of the reasons for the amendment in the decision to amend as required by subsections 6.2(8) PEA.”

The submissions in 92(i), (ii) and (iv) again depend on the proposition that because there is no specific reference to these factual matters in the disclosed material therefore Council did not do these things. The presumption of regularity applies and, in any event, there is some evidence of compliance, as a result of the General Meeting of Council on 7 April 1992 altering the method of calculation of headworks contributions in respect of certain classes of development. There is some evidence of compliance with s 6.2(8) of the PEA in a 3-page memorandum prepared by Council officers and dated 1 April 1992. I am not prepared to draw the inferences contended for by Pacific.

The submission in 92(iii) misconceives the clear words of s 6.2(7) of the PEA. The submission itself referred to the changes made in this period as ‘amendments’. I have held that the 1985 Policy continued with the commencement of the PEA. The so-called mandatory requirements of s 6.2(7) are directed at ‘adopting a planning policy pursuant to subsection (6)’.

On 23 January 1992, Section 1A.4 was inserted in the PEA:

“Local planning policies

1A.4(1) A local government may, by resolution, make planning policies that are not inconsistent with this Act.
(2) As soon as practicable after a local planning policy is made, full details of the policy, and the date it was made, are to be recorded in a register called the “register of local planning policies” to be kept by the local government.
(3) The chief executive officer is to give public notice in a newspaper of the title of the local planning policy and—
(a) if the policy is new—its purport; and
(b) in any other case—the purport of the amendment or repeal.

(4) On the day of commencement of a new planning scheme (other than a consolidated scheme under section 2.17), all local planning policies existing immediately before the commencement of the new planning scheme cease to have effect.
(5) Each local planning policy (other than a local planning policy mentioned in section 6.2 or 8.2(15)) is to have application throughout the planning scheme area.

(6) If a local government had, before the commencement of this section—
(a) adopted a planning policy; or
(b) recorded details about the adoption of a planning policy in a register called the “register of planning policies”;

then—
(c) the planning policy is taken to have been made by the local government under this section as a local planning policy; and
(d) the register forms part of the register mentioned in subsection (2) that is to be kept by the local government.”

This continued in force until the IPA commenced on 24 March 1998. During that time some minor amendments were made to Sections 6.2(6), (7) and (8) of the PEA. Pacific’s submissions in this regard are set out at 119 to 142 of its trial outline and are similar to its attack on the validity of the early changes after commencement of the PEA. For the same reasons set out above I also reject these arguments.

It follows that the attack on the validity of Conditions 2 & 3 of the rezoning approval based on the alleged invalidity of the 1985 Policy fails.

The 1998 Policy

Insofar as Pacific relies upon the alleged invalidity of the 1985 Policy, to undermine the validity of the 1998 Policy (which applied at the time of the subdivisional approval) that submission is rejected.

The 1998 Policy was adopted by Council on 24 March 1998. It too is a substantial document occupying some 31 pages. At 1.1 of the Introduction it states:

“1.1This Local Planning Policy (the Policy) is made by Maroochy Shire Council (‘Council’) pursuant to s 6.2(6) of the Local Government (Planning & Environment) Act 1990 (‘the Act’).

1.2The Policy from the date of its adoption supersedes Council’s previous policy entitled ‘Developer contributions for water supply and sewerage services’ adopted 27 August 1985, and any provisions of any planning scheme, by-law, local law and previous decision of Council in relation to any matter contained within the Policy.”

Pacific submits that in adopting this Policy Council did not comply with s 6.2(7) of the PEA, which is set out above.

The material disclosed does indicate that prior to adoption, a draft of the Policy was released for public comment and a significant number of responses were received from members of the public experts and environmental groups. All the documents disclosed are set out in Exhibits ‘MB-37’ and ‘MB-38’ to the Affidavit of Mr Baker-Jones affirmed 8 September 2009. There were a number of drafts and a number of expert reports received by Council officers leading up to the General Meeting on 24 March 1998. A report was received (and I infer considered) by Council, from its Water Services Engineer at the General Meeting on 24 February 1998. The timetable leading up to 24 March 1998 meeting was set out in that report.

At the time, the commencement of IPA was imminent. It commenced 6 days later. It is clear from the document that this fact was at the forefront of the minds of Council employees and consultants involved in the process.

The Engineers from the Water Services Branch presented a final report to Council of its meeting on 24 March 1998 which included the following recommendations:

“1.Adopt the ‘Local Planning Policy on Developer Contributions towards water supply and sewerage infrastructure, attached to this report.

2.Adopt the contribution rates included in Tables A1 and A2 of the policy support documents.

3.Rescind the current policy for developer’s contributions for water supply and sewerage services ‘before policy and after services.’

4.Advertise the ‘Local Planning Policy on Developer Contributions towards Water Supply and Sewerage Infrastructure’.

5.Invite the Development Industry to identify any infrastructure currently included in the proposed headworks model and paid for by developers.

6.Be aware that the IPA legislation will generally not require the State government to meet development contributions.”

These recommendations were adopted by Council at its General Meeting on 24 March 1998. It is clear that when this item was discussed the Acting Director of Engineering Services was present.

Unfortunately, I am not favoured with any detailed analysis of the large number of documents disclosed on this issue by either party, particularly as to Council’s alleged failure or otherwise to ‘have regard to’ the matters set out in s 6.2(7) of the PEA. Pacific’s approach is to be very selective and refer to only a few of the documents to make the bland submission that Council has failed to comply therefore the Policy was not lawfully adopted and has not continued therefore under the IPA transitional provisions.

Even adopting the legal analysis of the proper meaning of ‘is to have regard to’ as submitted at paragraphs 144 to 146 of Pacific’s trial outline, I am not prepared to find on the balance of probabilities that Council failed to comply with any of the provisions of s 6.2(7). The proper meaning of that phrase must also be derived from the reading of the subsection as a whole including s 6.2(7)(e)(v). Pacific’s very strict and selective approach of arguing that Council was bound to take each of the matters set out in s 6.2(7)(a)-(e) into account, makes little sense in relation to this particular subsection which seems to afford Council a very wide discretion to take into account unstated factors relevant to s 6.2(7)(e).

The attack on the validity of the 1998 Policy on this basis also fails.

The estoppel argument

Pacific claims that Council is estopped from claiming contributions for Stages 1 to 4 on the basis of certain actions and alleged representations set out in paragraph 51 of the SFA-OA.

Paragraph 51 of the SFA-OA is in the following terms:

Estoppel by Conduct
“51.Further or in the alternative to the allegations herein, the Respondent Council is estopped from claiming contributions for water and sewerage headworks in respect of Stages 1 to 4 or, in the alternative, Stage 4 of the ROL Approval, because:
(a)the Council has approved the plans for Stages 1 to 4. The Applicant repeats and relies on the allegations at paragraphs 30 to 38 herein; and
(b)pursuant to section 3.7.2(3) and section 3.7.2(5) of the Integrated Planning Act1997, by approving the plans for Stages 1 to 4, Council has represented that:
(i)the conditions of the ROL Approval have been complied with; and
(ii)there were no outstanding charges in respect of stages 1 to 4.”

As a general principle, a party cannot rely on an estoppel by conduct to prevent the performance of a statutory duty or the exercise of statutory discretion. As Mason CJ (citing a considerable body of authority) observed in Attorney General (New South Wales) and Quinn 1989 to 1990 170 CLR1 at 17:
“The executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be formed or exercised in the public interest, binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power.”
Pacific asserts that in this case the principle does not apply. Its argument focuses upon of what it says is the proper construction of s 3.7.2 of the IPA.

The pleading in the preamble to paragraph 51 of the SFA-OA caused me to seek clarification from the parties as to the scope of the estoppel argument. It was not clear to me from the trial material exactly what Council was arguing remained owing in relation to Stages 3 and 4 in particular. This has been clarified by reference to Council’s outline of argument filed 10 June 2009 and dated 21 May 2009 which was in response to an earlier iteration of Pacific’s case. The only reference to it in the trial material was a reference in Council’s trial outline incorporating the earlier submission.

On the material before me I am satisfied that the monies paid by way of headworks contributions on 22 of September 1997 and 13 August 1998 were for Stages 1 and 2, and the sum of $108,930.29 paid by Pacific on 12 August 2008 related to headworks contributions confined to the MCU (referred to as Stage 6). So much is clear from the affidavit of Barry Hewitt, Infrastructure Planning Officer from the Council, filed 4 June 2009 and relied upon by Pacific at trial. It follows that any estoppel can only relate to Stages 3 and 4.

What is clear from Mr Volpe’s own evidence, to which reference is made earlier, is that he relied on representations of others in reaching the conclusion that all headworks contributions had been paid. He had no direct contact with Council officers about headworks contributions. Pacific’s case is that by sealing the plans to Stages 3 and 4 the Council by its officers represented that all conditions including the headworks conditions had been complied with.

Some of the correspondence between Mr Sockhill (solicitor for Paradise) and Sonia Barnes, the Council employee who raised the Notice of Charge annexed to Mr Volpe’s affidavit relating to Stages 4, 5 and 6 prior to sealing the plan for Stage 5 is in evidence.

At that time, Ms Barnes did not suggest that there were any outstanding headworks contributions in relation to Stage 3. Clearly as a result of these proceedings Council records have been thoroughly checked and in her affidavit filed 4 June 2009 she says that in fact contributions in respect of Stage 3 have not been paid. On 28 March 2003 she sent a letter to Murray & Associates together with a tax invoice which included $63,469.00 for sewerage and $80,941.00 for water headworks in relation to Stage 3. Murray & Associates responded on 28 March 2003 and enclosed documents (none of which seemed to directly relate to infrastructure charges in relation to Stage 3) which appear to have satisfied Ms Barnes (together with something she was told in a telephone conversation with Murray & Associates on 28 March 2003) that “all headworks have been paid”. As I have noted earlier the survey plan for Stage 3 was sealed on 16 May 2003. Pacific relied upon this affidavit as part of its case. No-one from Murray & Associates (consultant to the then developer with direct dealings with Council) has provided any evidence.

It appears that the bank guarantee provided by Pacific to secure the release of the Survey Plan for Stage 5 relates only to charges owing in relation to that stage and Stage 4.

The argument focuses on the endorsement of the survey plans for Stages 3 and 4 by application of the applicable statutory framework. It is submitted that Council is now estopped from asserting that any contributions remain owing for these stages.

The argument is articulated thus in Pacific’s trial outline:
“171.   Pursuant to s 3.7.5(1) of the IPA, the delegates’ (each of them) endorsement of the plans for each stage was required to be given for the relevant plan within 20 business days “… after the Applicant complie[d] with s 3.7.2(3) … of the IPA”.
172.     Clearly, it is beyond dispute, as a matter of fact, that in respect of each stage, the Council, by its delegate, gave the requisite approval for each plan.
173.     When s 3.7.5(1) is read in the context of the mandatory language in s 3.7.2(3) of the IPA, namely, that “… the Local Government must approve the plan within the specified 20 days if the various requirements set out in s.3.7.2(3) were satisfied, the Council was required to decide whether each of the matters in s 3.7.2(3)(a)-(d) were satisfied prior to granting its approval of the plan.
174.     If the Council (by its delegate) was not so satisfied then, pursuant to s 3.7.2(5), the delegate was required within 10 business days after receiving the plan to give the Applicant written notice stating the actions to be taken to allow the plan to be approved. There is no evidence that any such notice was given.
Summary: Estoppel Argument
175.     In summary, the Council was given power under s 3.7.2(3) of the IPA to approve the plan for each stage only if the preconditions to s 3.7.2(3)(a)-(b) were satisfied. The Council delegated that power to various officers. The plans were approved by the Council delegates. It is now, as the Council’s position is understood by the Applicant, contended that the endorsement of the plan for Stage 4 was in some way a “mistake”. It is submitted that any reason subsequently advanced by the Council is irrelevant.” (Quotes omitted)
The evidence as to what occurred between Council and the developer prior to the sealing of the survey plan for Stage 3 is confined to what is set out above. Council submits that Ms Barnes was induced to mistakenly believe that the charges had been paid by something said to her (probably on the telephone) by someone from Murray & Associates.

The evidence relating to Stage 4 is quite sparse. It is evidence of little weight given that neither participant in the conversations referred to the correspondence between Mr Sockhill and Mr Volpe (see paragraphs 33-35 above) was called to give evidence. Ms Barnes’ affidavit relates to Stage 3 only, and Mr Sockhill gave no evidence at all. The correspondence confirms that Ms Barnes was still then under the mistaken belief that the charges for Stage 3 had been paid. The e-mail from Mr Sockhill to Council dated 13 December 2006 suggests on its face that Mr Volpe was then instructing his solicitor that in fact infrastructure charges for Stage 4 had not been paid. He was not cross-examined about this, and it may be that in giving those instructions he was talking about Stage 6 – the change to Stage 4 brought about by the MCU application which Mr Volpe has always regarded as part of Stage 4.

In support of its argument Pacific relies upon some remarks of Wells J in Jurkovic and the Corporation of the City of Port Adelaide (1979) 41 L.G.R.A 71 at 79:
“1.      The general rule stated above must be the predominant guide, and any apparent exception must acknowledge the overriding importance attached by the courts to the due performance of a public duty, and to the unhindered and bona fide exercise of a discretion with respect to matters of public concern, where the duty is imposed, or the discretion is conferred, by law.
2.        Where a proper application for consent, permission or approval, or for some other decision, is made to a Council, or other public authority, upon a matter of public concern governed by public law, the authority may be estopped from denying a representation or statement as to what the decision is or was, made by one of its officers to the applicant where:
(a)       the authority had previously established a practice of lawfully delegating to the officer concerned, or to officers of the same status and responsibility, the power to make decisions with respect to the subject-matter of the applications, and to communicate those decisions of persons concerned, and the officer in question acted – although mistakenly – in the course, and within the scope, of his ostensible authority; or
(b)       an officer or officers of the authority in arriving at the decision, or in making a representation or statement as to what the decision is or was, acted in breach of the authority’s domestic or internal procedures, but in what the officer or officers conveyed to the applicant, there was nothing to suggest that there had been an infringement of those procedures, and the officer or officers, in making the representation or statement, was or were acting – although irregularly – in the course, and within the scope, of his or their ostensible authority.
3.        The question whether, for the purposes of rule 2 above, there has been a proper application, whether there has been a sufficiently well-established practice of delegation, and whether the procedures, allegedly infringed, were domestic or internal, are questions of fact to be decided having regard to all the circumstances of the case.
4.        The above stated rules must yield to any contrary intention expressed or necessarily implied in the legislation governing the case under consideration.”
Apart from the mistaken representation in relation to Stage 3, there is no cogent evidence that Ms Barnes (or any other Council employee) made any representation which could give rise to an estoppel by conduct, and Jurkovic does not assist.

The obligation to pay a contribution was contained in Condition 2 and 3 of the rezoning approval and was the developers. In each case the condition was that it be paid in accordance with Council policy at the time of payment and was required to be paid at the time of subdivision of the land or as a condition of development, whichever was applicable at the rate applicable at that time.

All that subdivisional approval conditions 17 and 18 provided was that contribution be made in accordance with Council’s policy at the time of payment. These conditions were entirely consistent with the conditions imposed at the rezoning stage. If the developer does not honour the obligation and that escapes Council’s attention it is drawing an extremely long bow to say because Council proceeded to seal Plans without requiring payment that amounts to a representation by Council that the contribution has been paid.

In my opinion, it would be surprising indeed, if in the absence of evidence of representations, a developer could escape the obligation to comply with lawfully imposed conditions of an approval intended to bind the owner of the land in question, simply by applying the construction of s 3.7.2 of the IPA favoured by Pacific.

In any event, on the basis of the evidence I am not satisfied on the balance of probabilities that Pacific changed its position in any way in reliance upon the alleged representation by Council in sealing the Plans to Stage 3 and 4.

Further issues

My rejection of Pacific’s central submission of invalidity of the headworks conditions imposed at the time of the subdivisional approval in 1998, based on my finding that it has not satisfied the onus upon it, and has not rebutted the presumption of regularity, effectively disposes of its application. It is unnecessary for me therefore to reach any final conclusions in relation to Council’s argument that at least some of the declarations sought in the SFA-OA are beyond the jurisdiction conferred upon this Court by s 4.1.21(1) of the IPA.

Ground 4A (a) and (b) in the SFA-OA deal with the unlawfulness point which I have rejected. Ground 4A (c) raises as an alternative to (a) and (b) an allegation of uncertainty of “the conditions”, “in both their meaning and application”. The uncertainty issue was not advanced to any helpful extent in the written outline filed by Pacific on 9 September 2009, but was developed by Mr Keim SC in his oral submissions. His argument confused uncertainty with unlawfulness based on his client’s argument that the 1985 Policy did not survive the commencement of the PEA. Neither set of conditions is uncertain in its meaning, and I infer that the developer did not regard the conditions as uncertain, until its case changed radically to challenge the conditions by attacking the lawfulness of the Policies to which they refer.

Pacific conceded (subsequent to the hearing) that its argument at trial based on s 3.5.32 of the IPA was wrong and that the 1993 rezoning approval (involving as it did upon gazettal a change in the planning scheme) was not an approval deemed to be a continuing approval by s 6.1.23 of the IPA and that the conditions to the rezoning approval are given continuing effect by s 6.1.24 of the IPA.

On the issue of discretion (which took up a lot of time in argument), even if I had found on the evidence some non-compliance with the law in the changes made to the rates in the Policies during the relevant period, nevertheless I would not have been disposed to make the declarations sought for the reasons set out in Council’s trial submission at 85:
“Many matters operate against the exercise of the Court’s discretion to grant the relief sought, including:
(a)         the relevant conditions were not appealed or otherwise challenged (i.e. the exclusion of the major part of the Land from the Rural A zone and its inclusion in the Residential B zone was perfected, and consequential developments rights taken advantage of, without any challenge to the obligation to which the conditions of rezoning gave rise);
(b)         there was no challenge to either the 1985 Policy or the 1998 Policy during the period for which those policies operated;
(c)         it can be reasonably inferred that those who have developed land within the various headworks catchments have been required to contribute based on the impugned policies;
(d)        the Developer has benefited from the water supply and sewerage infrastructure to which the Development is connected;
(e)         it is in the public interest that contributions to defray the cost of providing water supply and sewerage infrastructure be secured from those who benefit from that infrastructure;
(f)         where a contribution is not secured, there is an obvious reduction in public funds available to defray the cost of providing water supply and sewerage infrastructure to a development.”

In addition to these matters, the evidence of alleged detriment to Pacific is very unsatisfactory. Certainly the failure to pay at the time the conditions were imposed has meant that the amount owing has increased significantly with the passage of time. Mr Volpe as the original developer must have appreciated the advantage to him of not having to pay until such time as the developer was about to get some benefit from the staged development. I was not impressed with his constant suggestion of naivety and lack of understanding. Clearly, he suffered financial detriment as a result of his commercial deals with Wright Brothers and the Burnett interests, but he did not strike me a being commercially innocent. Mr Keim SC (in his “ten points” oral submission) says Pacific purchased the land in good faith. The relevance of that submission escapes me in relation to this application brought against Council. Pacific no doubt purchased the land thinking it would be commercially beneficial to do so, and on the evidence the only persons who made direct representations of payment of infrastructure charges (apart from those made by Ms Barnes as a result of some inducement from Murray & Associates), were business associates of Pacific. Pacific purchased the land prior to the sealing of the Plan for Stage 3.

Mr Keim SC submits that as Mr Volpe’s evidence as to detriment (confined to Stage 4) set out in paragraph 22 of his affidavit, was not directly challenged, I should accept it. In my view, in the absence of some supporting financial information (which I assume could have been easily gathered), this evidence has little weight. Mr Volpe accepts that he never enquired, or caused anyone else to enquire, if there were charges outstanding in relation to Stage 4. Mr Volpe suggests that Lots in later Stages would have sold at a higher price. There is no evidence that Pacific would have been able to sell at the higher price in the market conditions then prevailing. I agree with Mr Litster SC that the evidence as to detriment is wanting and falls well short of satisfying me that Pacific did in fact suffer detriment.

In an attempt to head off an argument made by Council that the making of the declarations sought in the SFA-OA would open up the possibility of other developers, who have paid headworks charges calculated by reference to the 1998 Policy (for example), applying, as it were, for a refund, Mr Keim SC argued that such relief would not be available pursuant to s 4.1.21 of IPA and would either be statute barred or not available for other legal reasons after the expiration of so much time. Again it would only arise if I had found in favour of Pacific’s primary contention and be relevant to the exercise of discretion. Mr Keim SC may be right. It is not necessary for me to resolve this point. Having said that, it can clearly be inferred (from example the figures referred to in the evidence to which Mr Litster SC made reference at 3-44 of the trial transcript) that the costs of providing sewerage and water headworks infrastructure is a significant impost on Council resources, and which, if not contributed to by developers who connect to such infrastructure, would have to come from Council’s rate payer funded base.

The reserved costs issue

The starting point in s 4.1.23(1) of the IPA; is that each party to a proceeding in this Court must bear the party’s own costs. Pacific alleges that the adjournment of the hearing set down for (2) days on 28 May 2009 was occasioned because Council “defaulted in the Court’s procedural requirements”: s 4.1.23(2)(e). The discretion to award costs is a broad one, and is unconfined as to what the Court will have regard to in exercising that discretion.

I do not intend to canvass the material relied upon by the parties in relation to this application. I have carefully read the written outlines filed in relation to this issue by the applicant (filed with my leave at the directions hearing on 15 June 2009) and Council’s response (filed 25 June 2009). In my view Pacific’s application is without merit and overlooks the seismic shifts in its own case leading up to the substantial abandonment of its original case just prior to the hearing dates. As I have noted previously in these reasons, Pacific’s original case assumed the validity of the conditions and the Policies, and one expects that those advising Pacific thought there were some prospect of successfully arguing the case first presented (as Mr Keim SC and Mr Allan did in the outline filed 11 May 2009).

Given the obvious confusion in Pacific’s own case, it is hardly surprising that Mrs Grey, the solicitor for Council, had difficulty in deciding what was directly relevant to the case being brought against Council, particularly where she was having to cast back so many years into the records of the Maroochy Shire Council which no longer exists! Nothing in the material suggests a wilful intention by her or any officer of Council to not provide relevant documentation. It seems to be accepted that some of the delays (none of which were particularly great) were as a result of her being away from work for medical reasons.

There is considerable merit in Council’s submission on costs at paragraph 24:

“So it was that, at least shortly after 21 May 2009, the applicant:

(a) found itself in the position that both the relief it had claimed and the case that it had attempted to conjure were completely without merit; and so

(b) was obliged to look elsewhere in an attempt to keep the proceeding on foot.”

The application for reserved costs is refused

Orders

1. Application dismissed

2. Application for reserved costs refused

3. Liberty to apply within (21) days of delivery of judgment

CITATION:	Pacific Paradise Resort Pty Ltd v Sunshine Coast Regional Council [2010] QPEC 37
PARTIES:	PACIFIC PARADISE RESORT PTY LTD (ACN 098 002 763) (Applicant) and SUNSHINE COAST REGIONAL COUNCIL (Respondent)
FILE NO/S:	D26 of 2009
DIVISION:	Planning and Environment Court of Queensland
PROCEEDING:	Originating Application
ORIGINATING COURT:	Planning and Environment Court of Queensland at Maroochydore
DELIVERED ON:	23 April 2010
DELIVERED AT:	Maroochydore
HEARING DATE:	7 – 9 December 2009, written submission received up to 11 February 2010
JUDGE:	J.M. Robertson DCJ
ORDER/S:	Application dismissed Application for reserved costs refused Liberty to apply within (21) days of delivery of judgment
CATCHWORDS:	PLANNING AND ENVIRONMENT – originating application seeking declaratory relief that contributions payable under headworks infrastructure conditions in sub-divisional and rezoning approvals have been paid, whether Policy to which conditions refer was lawful and/ or uncertain EVIDENCE – where application amended substantially a number of times, where applicant alleges Council did not comply with law in amending Policy by increasing contribution rates; where applicant’s case relies almost entirely on documents produced by disclosure and/ or subpoena, where presumption of regularity applies and applicant has onus of establishing that Council acted unlawfully ESTOPPEL – whether the sealing of Plans by Council for various stages of a 5 stage development constitutes an estoppel by conduct COSTS – where applicant seeks reserved costs of aborted earlier hearing on the basis that Council failed to comply with the Courts procedural requirements Acts Interpretations Act 1954 (Qld) Building Units and Group Titles Act 1980 (Qld) Integrated Planning Act 1997 (Qld) Local Government Act 1936 (Qld) Local Government (Planning and Environment) Act 1990 (Qld) Statutory Instruments Act 1992 (Qld) Attorney General (New South Wales) and Quinn 1989 to 1990 170 CLR1 Jurkovic and the Corporation of the City of Port Adelaide (1979) 41 L.G.R.A 71 Minister for Natural Resources v NSW Aboriginal Land Council & Anor (1987) 9 NSWLR 154 Morris v Kanssen [1946] AC 459
COUNSEL:	Mr S. Keim SC with Mr G. Allan for the applicant Mr R. Litster SC with Mr J. G. Lyons for the respondent
SOLICITORS:	P&E Law for the applicant SCRC Legal Services for the respondent