Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd

[1995] QCA 300

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 20 of 1995.

Brisbane

Padmac v. Hotel Wickham Investments]

BETWEEN:

PAD-MAC PTY LTD (ACN 009 794 030)

Appellant

AND:

HOTEL WICKHAM INVESTMENTS PTY LTD

Respondent

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Fitzgerald P.
McPherson J.A.
Pincus J.A.
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_

Judgment delivered 11/07/1995

Joint reasons for judgment by Pincus and McPherson JJA, separate concurring reasons
by Fitzgerald P.
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_

APPEAL ALLOWED WITH COSTS; THE ORDERS MADE BELOW ARE SET ASIDE AND IN LIEU A DECLARATION IS GRANTED IN TERMS OF PARA. 1 OF THE APPLICATION DATED 2 DECEMBER 1994 MADE TO THE PLANNING AND ENVIRONMENT COURT.

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CATCHWORDS:	PLANNING AND ENVIRONMENT - whether proposed use as a bottleshop would be lawful as a continuation of a lawful use previously made - effect of town planning certificate - whether use made of premises "immediately prior to the day" when development control plan was made was a lawful use - whether permit effective if conditions not fulfilled.
S. 3.1(1) Local Government Planning and Environment Act 1990. Fox v. Pacasmo Pty Ltd; ex parte Pacasmo Pty Ltd (1992) 2 Qd.R. 90.
Foster v. Jodedex Australia Pty Ltd (1992) 172 C.L.R. 421.
Counsel:	Mr P J Lyons Q.C. with him Mr K W Wilson for the appellant. Mr M D Hinson for the respondent.
Solicitors:	King and Co. for the appellant. Corrs Chambers Westgarth for the respondent.

Hearing date:25 May 1995.

IN THE COURT OF APPEAL	[1995] QCA 300
SUPREME COURT OF QUEENSLAND	Appeal No. 20 of 1995
Brisbane
Before	Fitzgerald P. McPherson J.A. Pincus J.A.

[Pad-Mac P/L v Hotel Wickham Investments P/L]

BETWEEN:

PAD-MAC PTY LTD ACN 009 794 030

(Applicant) Appellant

AND:

HOTEL WICKHAM INVESTMENTS PTY LTD

ACN 062 802 126

(Respondent) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 11/07/1995

The circumstances giving rise to this appeal are generally set out in the joint reasons for judgment of Pincus and McPherson JJ.A.

The respondent's claim to use the premises as a bottle shop depended on the propositions that (i) such a use was a continuation of the previous use of the premises as a home appliances and kitchenware shop and (ii) use of the premises as a home appliances and kitchenware shop was lawful immediately prior to the development control plan which came into effect on 4 June 1993: see sub-s. 3.1(1) of the Local Government (Planning and Environment) Act 1990.

It was common ground that, under the previous legislative scheme, use of the premises as a shop required the consent of the local authority, Brisbane City Council. The only consent to use the premises as a shop which was in existence at 4 June 1993 was a consent granted on 25 January 1990 on an application to use the land as "Restaurant, Shops, Carpark".

That consent was subject to a number of conditions, including a requirement that the development to which the application related be "generally in accordance with" identified plans, which provided for modification of the existing building; further conditions were headed respectively:

"A. Prior to or at the time of lodging the building

application.

B.	Not more than 14 days after the issue of building approval.
C.	Prior to the Building Work commencing.
D.	Prior to commencement of use.
E.	Prior to commencement of use and thereafter maintained at all times that the development remains in existence."

The project to which the application related did not proceed, and the conditions were not complied with. Instead, as noted earlier, the premises were used as a home appliances and kitchenware shop until and after 4 June 1993.

Later, on 28 June 1994, the Council issued a further consent to modify the consent dated 25 June 1990; however, as Pincus and McPherson JJ.A. state, the further consent could not retrospectively alter the legal situation as at 4 June 1993.

Both parties accepted the validity of the consent dated 25 January 1990 and the lawfulness of the conditions which it contained. The respondent argued that the consent made use of the premises as a shop immediately lawful, irrespective of non-performance of, or non-compliance with, the conditions to which the consent was subject.

That argument starts from the premise, which is in my opinion correct, that the consent of 25 January 1990 had immediate effect. However, it does not automatically follow that the consent - in the sense of the Council decision - operated as a consent to the immediate use of the premises as a shop. Its effect at 25 January 1990 has to be determined by the construction of its terms. In my opinion, the effect of the consent - or Council decision - at 25 January 1990 was to suspend the lawful use of the premises as a shop until at least some of the conditions were performed or otherwise complied with; in other words, the consent of 25 January 1990 gave consent to the use of the premises as a shop at such future time as the material conditions were satisfied.

The respondent did not challenge the power of the Council to make such a decision but submitted that, nonetheless, the use of the premises as a shop was "lawful" at 4 June 1993 within the meaning of sub-s. 3.1(1) of the Local Government (Planning and Environment) Act. That submission seemed to involve a proposition that an unlawful use - in the sense of a use which was an offence - does not necessarily mean that the use was not lawful within the meaning of sub-s. 3.1(1).

I am prepared to assume that such a proposition could be correct in some circumstances - e.g., if the requirements were merely directory, to use a term now perhaps somewhat outmoded - or if the non-compliance was insubstantial. However, the limited material available to the Court does not seem to me to support such a conclusion. Indeed, it is impossible to know whether, in 1990, the Council would have consented to the use of the existing premises as a shop and, if so, on what conditions.

Accordingly, I agree that the appeal should be allowed and orders made in the terms proposed by Pincus and McPherson JJ.A.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 20 of 1995.

Brisbane

Before Fitzgerald P.
McPherson J.A.
Pincus J.A.

[Padmac v. Hotel Wickham Investments]

BETWEEN:

PAD-MAC PTY LTD (ACN 009 794 030)

Appellant

AND:

HOTEL WICKHAM INVESTMENTS PTY LTD

Respondent

JOINT REASONS FOR JUDGMENT - PINCUS AND McPHERSON JJA

Judgment delivered 11/07/1995

This is an appeal from the Planning & Environment Court relating to a proposal to

establish a bottle shop, on premises formerly used for retailing home appliances and

kitchenware. It was held in the Planning & Environment Court that, although the proposed

use would otherwise have been prohibited by the terms of a development control plan

which came into effect on 4 June 1993, its legality was established by s. 3.1(1) of the Local

Government (Planning and Environment) Act 1990 ("the Act"). That provision reads as

follows:

" A lawful use made of premises, immediately prior to the day when a planning scheme or an amendment of a planning scheme commences to apply to the premises, is to continue to be a lawful use of the premises for so long as the premises are so used notwithstanding -

(a)	any provision of the planning scheme or amendment of the planning scheme to the contrary (other than a provision to which subsection (1A) applies); or
(b)	that the use is a prohibited use. "

It was common ground that unless saved by s. 3.1(1) the use of the premises as a

bottle shop would be unlawful, under the development control plan. In a careful and detailed

treatment of the issues, the learned judge of the Planning & Environment Court held in

substance that, having regard to the terms of a consent allowing the use of the premises

as a home appliance and kitchenware shop, granted by the local authority on 25 January

1990, the proposed use as a bottle shop was lawful, as being a continuation of a lawful use

previously made. A number of issues, and in particular the effect of a certain town planning

certificate, were dealt with in the reasons of the learned judge; but it is necessary to decide

only one of those issues, namely whether the use being made of the premises

"immediately prior to the day" when the development control plan was made was a "lawful

use".

The views expressed in the reasons of the learned judge with respect to that

question were, in summary, as follows. His Honour pointed out that it was argued before

him that the development which the respondent had engaged in under the local authority

consent, referred to in the reasons as a "permit", was not generally in accordance with the

plans incorporated in the permit; further, his Honour mentioned that the appellant relied on

non-compliance with conditions relating to vehicular accessways, a matter which had not

been attended to at the time of commencement of the development control plan. His

Honour pointed out that the permit envisaged far more than the continued use of the

premises as a shop and that a restaurant was also intended. His Honour went on, after
dealing with some other points:

" To conduct a use in respect of which a permit exists but to neglect to comply with a condition which is part of the permit would expose one to certain sanctions. Such an act does not, of its own force, affect one's right to use the land in accordance with the permit. Sanctions for non-compliance with any condition attaching to a Town Planning Permit are provided for in s.2.23 of the Act. The use of land in accordance with a permit remains lawful until that permit is revoked pursuant to s.4.14 or otherwise lapses or ceases to have effect (s.4.13 (16)).

I am not satisfied that the right to use the subject land for the purposes of a "shop" did not endure beyond the commencement of the DCP because of the manner in which the permit was being exercised at that time. "

Counsel for the appellant argued that, at least in some circumstances, non-

compliance with a condition attaching to a permit to use land does more than "expose one

to certain sanctions". Counsel argued that it may make the use of the land unlawful;

reference was made to Fox v. Pacasmo Pty Ltd; ex parte Pacasmo Pty Ltd (1992) 2 Qd.R.

90 at 93. It is common ground that, apart from the permit, the use being made of the

premises immediately before the relevant date would have been unlawful, as being

prohibited by the then operative planning provisions; under those provisions it was

possible for the local authority to give consent to certain uses and that it did.

The application for consent was made on 9 August 1989 and granted on 25 January

1990. The grant was "subject to the conditions being as set forth in [the Council

Registration Board's] determination of 14 December 1989 contained in Minute Number

1920/89". That minute sets out the conditions, which are in various categories. The only

categories which require to be mentioned are D and E, the former being a list of works

headed "PRIOR TO COMMENCEMENT OF USE" and the latter being a list headed

"PRIOR TO COMMENCEMENT OF USE AND THEREAFTER MAINTAINED AT ALL TIMES THAT THE DEVELOPMENT REMAINS IN EXISTENCE". The evidence was that

some works required by condition D, as well as some required by condition E, had not

been done at the relevant date, 4 June 1993.

It was argued by Mr Hinson for the respondent that the use at that time was lawful

as being within the permit. His argument was that it is not every breach of condition

attaching to a permit which makes use under it unlawful, for the purposes of s. 3.1 of the

Act; so much may be accepted. For example, one would not expect that a condition

relating to the hours during which the use was permissible would, even if regularly

breached, necessarily take the case outside s. 3.1(1) of the Act. But the appellant's

argument here was that the use was not lawful at all, that no use, whatever the precise

manner of use, could lawfully be made of the premises under the permit until fulfilment of

those conditions which the permit required to be fulfilled before the use commenced.

The point depends upon the construction of the permit. On the respondent's

contention, it permitted the use mentioned in it from the very time of its issue, although if

that use commenced before the carrying out of conditions D and E it would expose the user

to penalties. The appellant's construction is that, since the permit is expressly subject to

conditions to be fulfilled before the permitted use begins, the intention must be that the

permit does not operate, until those conditions were fulfilled, to exclude the use from the

general prohibition imposed by the then planning provisions.

Had the respondent been sued for an injunction to restrain the use referred to in the permit, (immediately after the relevant date), the permit would not have constituted a defence; the Court then must in our view have held that the permit did not yet operate to

make the use lawful and that it remained prohibited. The natural reading of the permit is

to this effect: "We give you consent to use the premises as this permit specifies, but on the

basis that your use under the permit may commence only when you have fulfilled certain

conditions". It is not easy to understand how the permit can be read as giving consent to

any use being made of the premises before fulfilment of the conditions in categories D and

E.

Disagreeing, as we respectfully do, with the learned primary judge's view of the

effect of the conditions in question, we will not deal with the other issues raised, except

one. His Honour discussed a town planning consent issued on 28 June 1994, which

purported to modify the permit of 25 January 1990. The validity of that purported

modification was challenged, but his Honour declined to decide the matter in the absence

of the local authority. It does not appear to us that it was essential that the local authority

be represented at the hearing; as was pointed out for the appellant, there was a proper

"contradictor": Forster v. Jodedex Australia Pty Ltd (1992) 172 C.L.R. 421 at 437, 438.

There is no need to say more about the matter other than to point out that, whatever the

council's powers to modify the permit of 25 January 1990, such a modification could not

possibly make lawful, retrospectively, a use which was unlawful at the date to which s.

3.1(1) of the Act refers.

The appeal must be allowed with costs and the orders made below set aside; in lieu

a declaration will be granted in terms of para. 1 of the application dated 2 December 1994

made to the Planning and Environment Court.