Piggott v Fraser Coast Regional Council
[2012] QLC 69
•7 December 2012
LAND COURT OF QUEENSLAND
CITATION: Piggott v Fraser Coast Regional Council [2012] QLC 69 PARTIES: William John Piggott
(applicant)v.
Fraser Coast Regional Council
(respondent)FILE NO: AQL125-11 DIVISION: General Division PROCEEDING: Determination of compensation payable for compulsory acquisition of land DELIVERED ON: 7 December 2012 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr PA Smith ORDERS: 1. Compensation is determined in the initial amount of Two Hundred and Sixty Thousand Dollars ($260,000).
2. The Court will hear from the parties as regards final determination of the quantum of disbursements and interest, and as to costs.
CATCHWORDS: RESUMPTION – Acquisition of land by Local Authority for parkland – Determination of compensation under s.20 Acquisition of Land Act 1967
INTEREST IN LAND – Claimant held freehold title to resumed land – was claimant’s interest impacted by a 1973 Planning Approval
NATURE OF INTEREST IN RESUMED LAND – whether claimant under an obligation to transfer resumed land to Local Authority / the Crown
TRUSTS – whether claimant held land on trust for the Local Authority / the Crown
PALNNING APPROVAL – construction of – Local Government Act 1936 – status of Application for Planning Approval and Application Plans
EVIDENCE – Extrinsic evidence – the extent to which extrinsic evidence can be relied on to assist in the interpretation of a planning approval
LAND COURT – Land Court Act 2000 – s.7 – Land Court to be guided by equity and good conscience – s.7 frees Land Court from more technical constraints of superior courts – Land Court obtains its jurisdiction strictly from statutes – s.7 does not enhance jurisdiction of Land Court
Acquisition of Land Act 1967, s.20
Land Court Act 2000, s.7
Local Government Act 1936Cox v Commissioner of Water Resources (1992) 14 QLCR 304
Hawkins and Izzard v Permarig Pty Ltd & Brisbane City Council [No 1] (2001) QPELR 414
Leichhardt Municipal Council v Terminals Pty Limited (1970) 21 LGERA 44
Maroochydore Central Holdings Pty Ltd (No. 2) v Maroochy Shire Council [2007] 28 QLCR 6
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors [2012] QLAC 0001
Mulgrave Shire Council v Red Hills Pty Ltd (1994) 83 LGERA 323
Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 005
Shroff v McSporran (1977) 65 LGRA 33
Shell Company of Australia Ltd v Parramatta City Council [No. 2] (1992) 2 NSWLR 632
Spencer v The Commonwealth (1907) 5 CLR 418
Sydney Serviced Apartments v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404
Townsville City Council v Chief Executive, Department of Main Roads [2006] 1 Qd R 77
Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244APPEARANCES: MA Williamson of Counsel for the applicant
RC Morton and A Katsikalis of Counsel for the respondentSOLICITORS: MRH Lawyers for the applicant
Morton & Morton for the respondent
Background
At first glance, this case appears deceptively straightforward. It involves the determination of compensation payable to the applicant consequent upon a compulsory acquisition of land by the respondent pursuant to the Acquisition of Land Act 1967 (“the ALA”). There is common ground between the parties that the applicant was the registered holder of the land at the date of the resumption. There is also agreement between the parties as to the highest and best use of the land as at the date of resumption and the quantum of the value of the land on the basis of such highest and best use. Items relating to disturbance are also, at least at this stage, not in dispute as between the parties.
The question could accordingly be asked, what on earth is the nature of the dispute between the parties when the core elements of a case involving compensation for compulsory acquisition have seemingly been agreed?
Counsel for both parties agree that there is only one issue as between the parties that requires the Court’s determination: that being, what is the value of the interest which the applicant held in the land taken by the respondent as at the date of acquisition?
The applicant contends that he is entitled to the highest and best value of the land as at the acquisition date, being the sum of $260,000 plus disbursements.
The respondent contends that the applicant, although the registered owner of the subject land, in fact held the subject land pursuant to a bare or constructive trust in favour of either the respondent or another (such as the Crown) and that accordingly the applicant is entitled to Nil compensation for the loss of that interest.
Agreed facts - particulars of the land and acquisition
As indicated, there is mostly agreement between the parties as to the key elements of this case. Those agreed facts are set out in documents 7 and 8 of Exhibit 1.[1]
[1] Exhibit 1 “Appeal Book”, pp. 13-20 and 21-23.
In my view, it is necessary in this matter to understand two core sets of facts. The first core facts relate to the resumption of the land by the respondent, while the second core facts date back over a period of 40 years and concern events surrounding an application for sub-division lodged with the Burrum Shire Council over a large parcel of land which included within its boundaries the resumed land.
Whilst both parties are to be commended for the level of agreement between them as to the underlying facts, it is somewhat unfortunate that they were not able to produce for the Court one set of agreed facts. There are some subtle differences between documents 7 and 8 in Exhibit 1, being the respondent’s Statement of Facts, Matters and Contentions and the applicant’s response thereto.
Taking all of the evidence before me into account, the following are my findings of fact with respect to the details and ownership of the subject land and its acquisition by the respondent:
1. The land acquired is described as Lot 312 on RP143056, Parish of Bingham and County of March, hereinafter referred to as “the resumed land”.
2. The applicant prior to 15 May 2009 was the registered owner of the resumed land.
3. The resumed land:
(a)is 1.573 hectares in size;
(b)is included in the respondent’s local government area;
(c)is subject to the provisions of the respondent’s planning scheme for the former Hervey Bay City Council local government area.
4. For the purpose of the Hervey Bay City Town Planning Scheme, the resumed land is included in the Residential Low Density designation, as is also, quite bizarrely, Lot 49.[2]
5. The highest and best use of the resumed land prior to 15 May 2009 was a single unit residential site.
6. The market value of the resumed land immediately prior to 15 May 2009, assuming the highest and best use, was $260,000 (Two Hundred and Sixty Thousand Dollars).
7. On 15 May 2009, the respondent resumed the entirety of the land.
[2] See Exhibit 5 including agreed notations of Lot 312 and Lot 49. As to Lot 49, refer to paragraph 10 below.
Core facts relating to subdivision of land including the resumed land
In like manner to the findings of fact set out in the preceding paragraph, I make the following findings of fact with respect to the original subdivision of the larger parcel of land (which incorporated the resumed land) and subsequent related events:
1. The resumed land prior to December 1974 formed part of a larger parent parcel described as Subdivision 1 of Portion 9, Parish of Bingham.
2. The parent parcel was included in the local government area for the former Council of the Shire of Burrum (“BSC”).
3. On or about 13 March 1973, an application was made to BSC for approval of a subdivision, Subdivision 1 of Portion 9 and it was to be named “Sunlit Waters Estate”.
4. The “Owner’s name” as described on such application, was Colin Victor BENGSTON (BENGTSON).
5. Notwithstanding the application, the owners of the Lot/Lots were or became WJ Piggott and JT Wolfe. The application was referred to by the Local Authority as being one made on behalf of WJ Piggott and JT Wolfe.
6. The application for subdivision identified 324 allotments and 1.85 ha of area set aside for park or recreation purposes.
7. The stated purpose of the subdivision was “Residential”.
8. Lots 49 and 312 are identified on the proposed subdivision plan[3] as “PARK”.
[3] Exhibit 2 p. 3.
9. The proposed subdivision plan includes a stamp as follows:
APPROVED BURRUM
SHIRE COUNCIL(21.3.73)
MEETING 18.4.73
(SGD)
SHIRE CLERK
10. An extract from the BSC minutes of the BSC meeting of 21 March 1973 is as follows:[4]
[4] Exhibit 2 p. 5.
“PROPOSAL PLAN OF SUBDIVISION - SUNLIT WATERS ESTATE:
Cr Campbell moved - seconded by Cr Bird -
‘That the proposal plan of subdivision submitted by E.H. Egerton & Associates on behalf of W.J. Piggott and J.T. Wolfe of Lots 1 - 117 of Sub. 1 of Portion 9 Parish of Bingham be approved subject to the following conditions -i) The provision of adequate access in the gazetted roads to a standard of formation and gravel pavement 18 ft. wide to be constructed on the Subdividers side of the centre line.
ii) The construction of internal subdivisional roads to Area B standards.
iii) A realignment of the River Heads Road along the frontage of the subdivision and its construction in gravel.’ (S3) Carried.”
11. On 1 May 1973 the BSC wrote to EH Egerton & Associates in the following terms:[5]
[5] Exhibit 2 p. 16.
“Dear Sirs,
RE: C.V. BENGTSON - SUNLIT WATERS ESTATE
I refer to your application dated March 13, 1973 Ref P23 submitting proposal plan of subdivision of Lots 1 - 117 of Sub. 1 of Portion 9 Parish of Bingham (Lots 1 - 324) and have to advise Council’s decision as under -
Approved subject to the following conditions -
(i) The provision of adequate access in the gazetted roads to a standard of formation & gravel pavement 18 ft. wide to be constructed on the Subdividers side of the centre line.
(ii) The construction of internal subdivisional roads to Area B standards.
(iii) A realignment of the River Heads Rd. along the frontage of the subdivision and its construction in gravel.One copy of the plan is returned herewith duly endorsed with the consent of the Council, together with receipt of $70.00 covering plan fees.”
12. On 7 February 1974 the Town Planning and Water Committee of BSC approved engineering design plans for Stage 2 of the Sunlit Waters Estate, being Lots 118 to 324.[6]
[6] Exhibit 2 pp. 25-26.
13. On 25 August 1974 Robert John Donaldson, an authorised surveyor, completed a declaration on the back of the plan for Lots 295-317.[7] Directly below that declaration appears a certification by the BSC dated 19 September 1974 and, directly below that, a signed agreement by the applicant and Mr Wolfe. The plan was subsequently registered and became Registered Plan 143056. Set out below is an image[8] of the Council certification and landowner agreement on RP143056.
[7] Exhibit 4.
[8] Digitally enlarged image from Exhibit 4.
14. On 4 September 1975 Kreis & Company Solicitors wrote to the Shire Clerk, BSC:[9]
[9] Exhibit 2 p. 32.
“Dear Sir,
Re: W.J. Piggott and J.T. Wolfe - Sunlit Waters Estate
We act on behalf of Mr. William John Piggott and Mr. John Theodore Wolfe, in relation to the Sunlit Waters Estate and in particular, in connection with the registration of Plan No. 142540.
Our clients have instructed us to effect the transfer of Lot 49 on the said Plan in favour of your Council and we are enclosing herewith under certified cover, the Certificate of Title Volume 5139 Folio 199.
The transfer of the property was a condition of your Council granting its consent and approval to the registration of the Plan.
Kindly acknowledge receipt of the Certificate of Title in due course.”
15. On 8 February 1984 the Town Clerk, Hervey Bay Town Council (HBTC)[10] wrote to the Land Administration Commission, enclosing a copy of Plan 143056 and referring particularly to Lot 312, and asked if the “reservation of this lot could be pursued by your Department with the titles office”.[11] On 17 April 1984 the Land Administration Commission responded as follows:[12]
[10] Successor to BSC
[11] Exhibit 2 p. 33.
[12] Exhibit 2 p. 34.
“Dear Sir,
RE: Proposed Park Reservation
Lot 312 on Registered Plan
143056
parish of Bingham
________________________________I refer to your letter of 8th February, 1984 in connection with the above matter.
It is noted that your Council’s approval endorsed on the back of the Plan of Subdivision is not subject to the above Lot being transferred to the Crown for Park and Recreation Purposes. Therefore it will be necessary for the Absolute Surrender of Lot 312 on Registered Plan 143056 to be completed by the present registered owners.
To enable reservation action to proceed you must have the following documents and listed requirements completed and make payment of $186.00 as per attached account.
a) Absolute Surrender under the Land Act;
b) Statutory Declaration;
c)Rates and Land Tax Undertaking to the date of execution signed by the registered proprietors;
d)Certificate of Title Volume 5307 Folio 227.
Your further action will be awaited.”
16. On 4 June 1984, 13 November 1985 and 26 March 1986 Morton and Morton, Solicitors for HBTC, wrote to the applicant seeking the completion and return of transfer documentation with respect to Lot 312. The letter of 26 March 1986 included the following:[13]
“Unless we hear from you within 7-10 days we believe our client may take such court action as is appropriate against you for delivery of the relevant Certificate of Title and completed transfer documents to enable the surrender of the land to our client to be completed, plus an order for costs of and incidental to such proceedings. We trust that this may not be necessary and look forward to hearing either from you or from your solicitors with the return of duly completed documents submitted to you some time ago.”
17. There is no evidence of any further action occurring with respect to Lot 312 until 28 March 2007 when Morton and Morton, on behalf of the now Hervey Bay City Council (HBCC), wrote to Ms Dianne Piggott in response to enquiries made of the HBCC by Ms Piggott as to the ownership of Lot 312.[14]
18. At some time prior to 14 May 2007 Mr John Wolfe died. Mr Wolfe had been a joint registered owner, with the applicant, of Lot 312.[15]
19. At an unspecified date, seemingly some time between 28 March and 14 May 2007, the HBCC lodged Caveat No. 710569043 over Lot 312.[16]
20. On 20 July 2007 David Welsh of Welsh & Welsh advised Morton & Morton Solicitors for the HBCC that the applicant conceded that he was not entitled to the ownership of the land and would seek instructions in relation to the execution of the necessary transfer documentation. Subsequently, on 24 August 2007 Morton & Morton, on behalf of the HBCC, wrote to Welsh & Welsh confirming that the applicant had conceded that the land should have been surrendered to the Crown as park and requesting the applicant’s cooperation in surrendering the land to park.[17]
21. The applicant did not return transfer documentation to the HBCC. On 1 October 2008 the respondent[18] issued a notice of intention to resume Lot 312 to the applicant via his solicitors Welsh & Welsh.[19]
[13] Exhibit 2 p. 42.
[14] Exhibit 2 p. 47.
[15] Exhibit 2 p. 49.
[16] Exhibit 2 p. 49.
[17] Exhibit 1 p. 16.
[18] Successor to HBCC
[19] Exhibit 1 pp. 2 – 3.
The Acquisition Legislation
The assessment of compensation in this matter is to be carried out in accordance with the provisions of the ALA, and in particular s.20, which provides as follows[20]:
[20] s. 20 was also in this form as at the date of resumption
“20 Assessment of compensation
(1)In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also—
(a) to the damage, if any, caused by any of the following—
(i)the severing of the land taken from other land of the claimant;
(ii)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting the claimant’s other land mentioned in subparagraph (i); and
(b) to the claimant’s costs attributable to disturbance.
Note—
See, however—
(a)the Geothermal Energy Act 2010, section 350D in relation to geothermal interests under that Act; and
(b)the Greenhouse Gas Storage Act 2009, section 369D in relation to GHG interests under that Act; and
(c)the Mineral Resources Act 1989, section 10AAD in relation to mining tenement interests under that Act; and
(d)the Petroleum Act 1923, section 124C in relation to 1923 Act petroleum interests under that Act; and
(e)the Petroleum and Gas (Production and Safety) Act 2004, section 30AD in relation to petroleum interests under that Act.
(2)Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.
(2A)However, in assessing the compensation, a contract, licence, agreement or other arrangement (a relevant instrument) entered into in relation to the land after the notice of intention to resume was served on the claimant must not be taken into consideration if the relevant instrument was entered into for the sole or dominant purpose of enabling the claimant or another person to obtain compensation for an interest in the land created under the instrument.
(3)In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
(4)But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.
(5)In this section—
costs attributable to disturbance, in relation to the taking of land, means all or any of the following—
(a) legal costs and valuation or other professional fees reasonably incurred by the claimant in relation to the preparation and filing of the claimant’s claim for compensation;
(b) the following costs relating to the purchase of land by a claimant to replace the land taken—
(i)stamp duty reasonably incurred or that might reasonably be incurred by the claimant, but not more than the amount of stamp duty that would be incurred for the purchase of land of equivalent value to the land taken;
(ii)financial costs reasonably incurred or that might reasonably be incurred by the claimant in relation to the discharge of a mortgage and the execution of a new mortgage, but not more than the amount that would be incurred if the new mortgage secured the repayment of the balance owing in relation to the discharged mortgage;
(iii)legal costs reasonably incurred by the claimant;
(iv)other financial costs, other than any taxation liability, reasonably incurred by the claimant;
(c) removal and storage costs reasonably incurred by the claimant in relocating from the land taken;
(d) costs reasonably incurred by the claimant to connect to any services or utilities on relocating from the land taken;
(e) other financial costs that are reasonably incurred or that might reasonably be incurred by the claimant, relating to the use of the land taken, as a direct and natural consequence of the taking of the land;
(f) an amount reasonably attributed to the loss of profits resulting from interruption to the claimant’s business that is a direct and natural consequence of the taking of the land;
(g) other economic losses and costs reasonably incurred by the claimant that are a direct and natural consequence of the taking of the land.
Example of costs for paragraph (g)—
cost of school uniforms for children enrolled in a new school because of relocation from the land taken”
It is immediately apparent that the key provision in this case is s.20(2) which requires compensation to be determined in accordance with the value of the estate or interest of the claimant in the land.
Respondent’s Contentions
The respondent relies on what it refers to as a number of representations by the applicant which have the consequence that the value of the interest which the applicant held in the resumed land is Nil.
Counsel for the respondent note in the following submissions what they refer to as “The First Representation”:[21]
[21] Respondent’s outline of submissions paragraphs 16-17.
“16 It is submitted that since:
16.1The Application for Subdivision stated 1.85ha was set aside for park or recreation purposes; and
16.2The Subdivision Plan:
16.2.1provided for Lots 49 & 312 as ‘PARK’; and
16.2.2stated the total area for Parks was to be 1.85ha.
the Applicant represented to the BSC that 1.85ha of the Subdivision, being lots 49 and 312 would be set aside as ‘parks’ (‘The First Representations’).
17. It is submitted that since:
17.1the Engineer identified the Park area was in excess of the minimum requirements; and
17.2the Application for Subdivision and the Subdivision Plan indicated 1.85ha (in Lots 49 & 312) would be set aside as Park;
the BSC reasonably relied upon the First Representations of the Applicant. It had no need to impose any particular condition relating to an area for parks.
It was reasonable to believe that such transfer would be effected as a matter of course (as indeed it was in relation to Lot 49).”
As regards “The Next Representation”, Counsel for the respondent had this to say:[22]
[22] At paragraphs 18-20.
“18 It is further submitted that at all material times, the Applicant knew or ought to be taken as having have known (‘the Applicant’s Knowledge’), that setting aside 1.85ha of the Subdivision (identified as Lots 49 and 312) necessitated the transfer of ownership of both of those lots.
18.1By correspondence dated 4 September 1975, the Applicant’s then solicitors Messrs Kreis & Company wrote to the BSC and advised:
18.1.1their clients instructed them to transfer Lot 49 on the [Subdivision] Plan in favour of the BSC (and a Certificate of Title was enclosed); and
18.1.2that the transfer of the property was a condition of your Council granting its consent and approval to the registration of the [Subdivision] Plan.
(‘The Next Representation’)
19 It is submitted the Next Representation:
19.1Is evidence of the Applicant’s Knowledge; and
19.2Constituted a clear representation to the Council that:
19.2.1Lot 49 was to be transferred to the Council; and
19.2.2That such a transfer was a condition of the Council granting consent to the approval to the registration of the Subdivision Plan.
20 There is nothing to show that Lot 312 was in any different position to Lot 49. Further, without Lot 312 the requirement of the subdivisional approval to provide 1.85ha of ‘park’ could not be met.”
The respondent contends that the BSC reasonably relied on the applicant’s representations, relying in particular on its approval of the subdivisional plan; its undertaking of maintenance of Lot 312 for almost 40 years; and the fact no rates have ever been issued for Lot 312.
Further, the respondent contends that the applicant has not paid any rates for Lot 312; maintained the land; or acted in any way consistent with being the owner of the land.
Counsel for the respondent argue that the contentions set out above lead to the conclusion that the applicant is estopped from contending that he is the absolute owner of the land.[23] Counsel made the following key submissions:[24]
“24 Where a person so estopped is the legal owner of the property to which the estoppel relates, that person, pending the transfer of the legal title to the property to the promisee, holds that legal title as a constructive trustee.
25 Thus before the transfer of Lot 49 the Applicant could not have contended he was beneficial owner of that Lot. He clearly held it on trust for the Council. Lot 312 is in no different position.
26 Where a legal owner of property promises, or represents, to another person an interest in that property in exchange for an act or omission on the part of the promisee, and the promisee so conducts himself in reliance on the promise or representation as to suffer detriment in the event that the promise is not fulfilled, then, if the legal owner does not carry out his promise, or abide by the representation, equity will impose a constructive trust on the legal owner to the extent necessary to secure to the other party the interest thus promised, or represented, to him.
27 The relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party. Thus what the Applicant may have (mis)understood is irrelevant.
28 The Applicant’s Response to the Statement of Facts Matters and Contentions appears to found its contention on the proposition that the Council did not impose any relevant condition on the subdivision (see particularly paragraph 11(e)).
29 That is incorrect. The Application proposed that Lot 312 (and Lot 49) be ‘park’. The subdivision was approved in accordance with the Applicant’s Application and Plan, i.e. in accordance with the Applicant’s proposal (promise/representation) to transfer Lot 312 (and Lot 49) for ‘Park’.
30 It is no answer to say that the Applicant held the legal title to the land. That is undoubtedly correct. That is the whole purpose of there being a constructive trust.
31 Notwithstanding that state of affairs the Applicant was bound by an equity personal to him that he held the land on trust. He had no beneficial interest in it. For nearly 40 years he has acted consistently with knowing that.”
[23] Respondent’s outline of submissions paragraph 23.
[24] At paragraphs 24-31.
Finally, the respondent relies on the “equity and good conscience” provisions of s.7 of the Land Court Act 2000 (the LCA) by contending as follows:[25]
“22. S. 7 provides that in the exercise of its jurisdiction (relevantly to determine the value of the Applicant’s interest in the land) the Court must act accordingly to equity, good conscience and the substantial merits of the case without regard to legal technicalities and form, or the practice of other courts.
23. The Applicant’s position invokes very technical (but ultimately incorrect) arguments.
24. It is clear that s. 7 does not confer jurisdiction but relates to the matter in which the jurisdiction is to be exercised.
25. In deciding the issue in this case the Court must accordingly act in accordance with the principles mandated by s. 7.
26. Here it is clear that the Applicant always intended that Lot 312 be given to the Council for park. He has so intended for nearly 40 years. Throughout that time no rates have been levied, and the Council (since at least the mid-1980s) has maintained the land. There is no evidence that, subsequent to subdivisional approval, the Applicant has ever exercised any dominion over the land.
27. Further the Applicant does not give any reason as to why those actions on his part were not fully consistent with him knowing very well that the arrangement for subdivision of the land always involved the transfer of Lot 312 for park. He does not seek to explain why he offered the land as park; or that he was not fully conversant with the By-Laws requiring 5% of the land be dedicated for park or why, for the last nearly 40 years, he has acted perfectly in accordance with the proposition that he gave the land to the Council for park.
28. It would not be consistent with equity, good conscience and the substantial merits of the case to now grant a quite unmerited windfall to the Applicant. The Applicant has taken the benefit of the subdivisional approval which he well knew involved him giving up his interest in the land for park.”
[25] Respondent’s Submissions in Reply paragraphs 22-28.
Applicant’s Contentions
The case for the applicant is in the main responsive to the contentions put forward by the respondent. In simple terms, the applicant rejects all of the propositions put against him by the respondent and says that, quite simply, he was the registered owner of the land at the time of the resumption, and his interest was not subject to either a bare or constructive trust to either the respondent or any other entity. It follows, the applicant asserts, that the applicant is entitled to be compensated for the loss of his interest in the land, which is the agreed quantum of the highest and best use of the land of $260,000 plus disbursements.
Equity and Good Conscience - s.7 LCA
As already pointed out, the respondent contends that an award of compensation for the applicant as sought would result in an unmerited windfall to the applicant inconsistent with the principles of equity, good conscience and the substantial merits of the case and the manner in which the Land Court’s jurisdiction is to be exercised in light of s.7 of the LCA.
Section 7 of the LCA provides as follows:
“7 Land Court to be guided by equity and good conscience
In the exercise of its jurisdiction, the Land Court—
(a) is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.”
The effect of s.7 was considered in the recent Land Appeal Court decision of Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors.[26] In that case, the Land Appeal Court, in its joint decision, had this to say:[27]
[26] [2012] QLAC 0001.
[27] At paragraph 11-12.
“[11] Section 7 has been subject to much judicial consideration. Correctly, in our view, the learned Member below held that s.7 does not confer jurisdiction but relates to the manner in which jurisdiction is to be exercised. However, the learned Member erred in his conclusion that s.7 provides an independent source of power. Rather it provides guidance as to how the powers of the Court are to be exercised. As this Court said in Cox v Commissioner of Water Resources when considering the then operative 'equity and good conscience' provisions which related to the Land Court (and which were worded in similar terms to s.7):
‘Any power which the Court has must be conferred by a statute. It is only when a power is conferred that the phrase in issue in this case can operate. In other words, it is only in the exercise of a power conferred on the Court that the Court "shall be governed in its procedure and its decisions by equity, good conscience, and the substantial merits of the case". The words just quoted are not a source of power (or jurisdiction). They offer guidance as to the exercise of a power already conferred …
Whatever flexibility section 41(5)(a) of the Land Act 1962 gives to the Land Court in making its decisions, it is clear that the paragraph does not give the Court power to deal with matters according to some arbitrary concept which is unknown to or unascertainable by the parties. The provisions of the relevant statutes must be observed. The Court cannot ignore or act contrary to statutory requirements or basic principles of natural justice. In that sense, at least, section 41(5)(a) does not empower the Court to depart from established principles of law nor does it give it power to dispense justice otherwise than according to law.’
[12]It is not necessary, or indeed possible, here to endeavour to arrive at a definitive determination of the meaning and extent of operation of the words contained in s.7 of the Land Court Act. Their evident purpose is to "free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals": Minister for Immigration and Multicultural Affairs v Eshetu. One obvious area of potential operation would pertain to methods of proof of a fact or document. A provision in like terms was held to have that effect by the Full Court of the Supreme Court of South Australia in Featherston v Tully. In Townsville City Council v Chief Executive, Department of Main Roads Keane JA, as his Honour then was, gave some further examples of the use to which the section might be put in the context of the exercise of a discretion, in that case to allow a rehearing. But what the section does not permit is a personal view of the merits of the case to determine the findings of fact that anteriorly need to be made.”
As the above passages clearly point out, the decision in Mentech is consistent with previous Land Appeal Court authorities on the correct interpretation of s.7 of the LCA or its like statutory predecessor.
Although the respondent concedes that s.7 does not of itself confer any jurisdiction on this Court, it nonetheless contends that a proper application of s.7 will be determinative of the issues in this case.
In my view, the respondent’s submissions misconceive the meaning and proper application of s.7. As the Land Appeal Court said in Maroochydore Central Holdings Pty Ltd (No. 2) v Maroochy Shire Council:[28]
“[46] Finally, while this Court is required pursuant to s.7 of the Land Court Act 2000 to act according to equity, good conscience and the substantial merits of the case, that does not mean that well-established principles of law are to be disregarded. Legislative provisions such as s.7 of the Land Court Act 2000 are intended to be facultative and to free the Court from some of the more technical constraints applicable in superior courts. However, they do not provide a means of allowing the Court to act in an arbitrary way or in a way to avoid the consequences of established rules of law.”
[28] [2007] 28 QLCR 6 p. 10, paragraph [46].
The Land Appeal Court’s reasoning is Maroochy is entirely consistent with Mentech and with those authorities relevantly referred to in Mentech and, in particular, Townsville City Council v Chief Executive, Department of Main Roads[29] and Cox v Commissioner of Water Resources.[30]
[29] [2006] 1 Qd R 77.
[30] (1992) 14 QLCR 304.
It appears that the respondent is seeking to rely on s.7 to enforce an intention, which it says the applicant clearly demonstrated, to transfer the land in question to the Council for parkland in exchange for subdivisional approval to the large parcel of land.
The key factor which I have to determine in this matter is the value to the applicant of his interest in the land compulsorily acquired by the respondent. To do so requires an analysis of the evidence and relevant law to determine what the applicant’s interest in the land is. Section 7 of the LCA is a valuable tool available to the Court, and indeed mandated to be used, to free the Land Court “from some of the more technical constraints applicable in superior courts”,[31] but it must not be used as part of some “arbitrary concept which is unknown to or unascertainable by the parties”[32] because “the provision of the relevant statutes must be observed”.[33]
[31] See Maroochydore paragraph [46].
[32] See Cox at p.320.
[33] Ibid.
I have no doubt that s.7 of the LCA does not allow me to determine this matter by relying on s.7 in the manner contended by the respondent.
Applying the relevant statutory law of Queensland, the question remains: what is the value of the interest in the land held by the applicant as at the date of acquisition given the rather unusual facts of this matter?
Subdivision of the larger parent parcel of land
As set out in the core facts dealt with earlier, the resumed land was originally part of a larger parcel of land.[34] On 21 March 1973 the BSC approved the subdivision of the parent parcel, which was notified to the applicant and Mr Wolfe by letter of 1 May 1973. In order to determine this matter, it is necessary to closely examine the legislative requirements pertaining to that subdivision in light of the findings of fact.
[34] Described as subdivision 1 of portion 9, Parish of Bingham, Exhibit 2 p. 1.
Counsel for the applicant assisted the Court by providing to the Court a bundle of legislation and cases. Behind tag 9 in that bundle is an extract from the Local Government Act 1936 - 1984 (the LGA). The extract contains relevant provisions of the LGA for approving subdivision. Unfortunately, the version of the LGA provided to the Court and indeed relied upon by both parties at the hearing of this matter is not the form of the LGA in force at the time of the approval.
Due to the difficulty the Court has experienced in both receiving the wrong version of the LGA and then in ensuring that it held the correct version of the LGA in force at the relevant time, it is appropriate to set out the operative provisions of the LGA with respect to subdivision of land in force at the date of the approval. The provisions are set out in Annexure 1.[35]
[35] It should be noted that by Act No. 74 of 1975, assented on 12 December 1975, some significant amendments were made to s.34 of the LGA as set out above. Those amendments have not been considered as regards to the subdivisional approval which resulted in the creation of the resumed land.
In my view, the statutory procedures to be followed by an applicant and the local authority in or about March 1973 in accordance with the LGA are clear.
Firstly, land can only be subdivided by a private person in accordance with the LGA.[36] If the subdivision includes the opening of a road (as was the case with the Sunlit Waters subdivision of the parent block) s.34(6) of the LGA applies. Specifically, the land shall not be subdivided until an application, accompanied by plans and specifications, has been approved by the Local Authority;[37] the roads have been constructed;[38] a plan showing the road and the subdivision together with a statement identifying the title to the land has been approved by the Local Authority by seal and certification on the plan that all of the requirements of the Local Authority and the LGA have been complied with;[39] and the plan so endorsed is lodged for registration with the Registrar of Titles within six months of the Local Authorities` certification on the plan.[40] After registration of the plan by the Registrar of Titles, the applicant is required to deposit a copy of the registered plan with the Local Authority within one month.[41]
[36] S.34(1).
[37] S.34(6)(a).
[38] S.34(6)(b).
[39] S.34(6)(d).
[40] S.34(6)(e) and proviso.
[41] S.34(9).
The approval process by the Local Authority works this way. After a plan for subdivision has been submitted, the Local Authority “may approve any such application, or approve subject to conditions, or disapprove”.[42] The Local Authority is required to give notice to the applicant of its decision and, if the decision is to approve with conditions or disapprove the application, the notice must state reasons.[43]
[42] S.34(10).
[43] S.34(10).
There are a number of considerations which the Local Authority is required to take into account when considering an application for subdivision. Specifically with respect to subdivisions for residential, commercial or industrial purposes, the Local Authority is required to take into account the amount of public garden and recreation space to be provided or alternatively, whether the applicant should pay an amount to the Local Authority not exceeding Twenty Dollars per proposed parcel in the subdivision so that the Local Authority can make its own provision for public garden or recreational space.[44]
[44] S.34(12)(i) and proviso.
Importantly, where the Local Authority makes the provision of land for public garden or recreation space a condition of approval, the Registrar of Titles is precluded from registering the plan of subdivision until surrender to the Crown of such land required for public garden or recreation space has been lodged with the Registrar of Titles.[45] Any land so surrendered to the Crown shall be reserved and set apart under the control of the Local Authority as trustee.[46]
[45] S.34(12A).
[46] S.34(12A).
Finally, in deciding every application for subdivision of land under s.34 of the LGA, the Local Authority “shall in every such decision state the grounds thereof”.[47]
[47] S.34(15)(a).
BSC By-laws
It is not sufficient to only have regard to the legislative provisions of the LGA in considering this matter. Regard must also be held to the BSC By-laws made pursuant to the LGA. The By-laws in force at the time of the application and approval of the subdivision of the parent land were gazetted on 13 September 1966.[48]
[48] The By-laws were jointly tendered by the parties and became Exhibit 6. They were published in the Queensland Government Gazette Vol CCXXIII No. 5 pp. 139-189.
Chapter 35 of the By-laws relates to the Subdivision of Land. By-law 7[49] required an application for subdivision to be accompanied by a proposal plan prepared by a surveyor. Such plan was required to show a number of things, including “all proposed new roads and reserves (shown tinted pink)”.[50]
[49] All references herein to numbered By-laws are references to By-laws contained within Chapter 35.
[50] By-law 8(e).
The By-laws also provided for a number of matters that the BSC had to consider with respect to the application. Specifically, the BSC was required to take into account “the amount of public garden and recreation space to be provided in the land to be subdivided”.[51]
[51] By-law 9(ii)(i).
By-law 10(3) is of particular note. It provided as follows:
“Refusal of application
10. Without in any way limiting the discretion of the Council, the Council may disapprove any proposal plan if— …
(e)Provision is not made for public and recreation space of five per centum (5%) of the total area of the land to be subdivided (where such total area is not less than twenty (20) acres), in addition to and apart from the area of any road or easement within the area affected by such subdivision; … ”
Analysis of Application for Subdivision and Approval thereof
It is now necessary to consider the statutory requirements of the LGA as they applied in 1973 in light of the findings of fact as set out at the beginning of this decision.
In my view, when the application was made to the BSC, it was the applicant and Mr Wolfe’s intention that two areas of parkland, being lot 49 and the resumed land, were proposed to the BSC as parkland. In this regard, it is noteworthy that the total area of lot 49 and the resumed land was 1.85 hectares, which is an amount in excess of 5% of the total area of land as provided for in By-law 10(e) with respect to parkland. It is also noteworthy that both lot 49 and the resumed land as set out in the plan which accompanied the application clearly identifies both lots as “PARK”.[52] As the plan tendered in Court is a black and white copy, it is impossible to tell whether or not lot 49 and the resumed land were tinted pink in accordance with By-law 8(e).
[52] See Exhibit 2, p. 3.
The BSC approved the subdivision application subject to conditions. So much is abundantly clear from both the BSC minutes of 21 March 1973 and the BSC’s correspondence of 1 May 1973. Accordingly, I reject the respondent’s contention that the BSC effectively approved the application without conditions.
Critically, the BSC did not include any condition in the approval as regards public and recreation space or parkland. This is somewhat surprising. The respondent contends that the BSC simply relied upon the plan submitted with the application and it was not necessary to go one step further and set out any specific conditions in the approval relating to parkland. In my view, this contention is clearly at odds with both the LGA and the BSC By-laws.
Had the BSC chosen to simply approve the subdivisional application without any additional conditions, then it is of course true that it could have done so. In those circumstances, it would follow that the areas on the plan forming part of the application process set aside for parkland would be required by the BSC to be so set aside as part of the approval. However, the way in which such setting aside of the parkland in those circumstances would actually occur under the LGA provisions was for the BSC to obtain a surrender of the parkland lots from the applicant; to certify that it had received such surrender; and then for the appropriate plan to be lodged with the Registrar of Titles for registration. Had that occurred, both lot 49 and the resumed land would have been set aside as Crown land as part of the approval process and the BSC would have become trustee of such land for park and recreation purposes. A like process would have occurred had the BSC made the provision of the two lots as parkland formal conditions of the subdivision approval. Again, at the time any relevant plan was forwarded to the Registrar of Titles for registration, such plan would come with the certification of the local authority, the agreement of the applicant for the subdivision, and the formal surrender of the relevant areas of land.
In my view, it is clear on the evidence in this case that the BSC both knew and understood the requirements of the LGA and the By-laws. Of course, even if it did not know or understand those requirements, that would not be any excuse for not following the statutory and regulatory regime. The fact that the BSC understood the process is clearly demonstrated by the fact that, in the minutes of the BSC meeting of 21 March 1973, the motion immediately following the Sunlit Waters Estate motion involved a proposal for a different subdivision and the very first condition for approval of that subdivision was “the dedication of an area of about 8 acres for park and recreation purposes”.[53] This is not the only example in the evidence where a subdivision was approved subject to a condition requiring an area of land to be set aside as Reserve for Park and Recreation by the BSC.[54]
[53] See Exhibit 2, p 5.
[54] See for example, Exhibit 2, p. 9 – Proposal Plan of Subdivision – OW Nitschinsk.
At first glance, one may mistakenly be of the impression that those approvals which made reference specifically to conditions as to parkland did so because the plans and application in those instances did not make reference to parkland. This, however cannot be the case. As previously discussed, pursuant to the By-laws, all applications had to be accompanied by a plan prepared by a surveyor[55] and had to show all proposed new roads and reserves (eg parkland).[56]
[55] By Law 7(ii).
[56] By Law 8(e).
In some instances, the BSC chose to require land for parkland as part of its subdivisional approval.[57] In the case at hand, it did not.
[57] See, for example, Exhibit 2 p. 5 (Import Timbers Pty Ltd) and Exhibit 2 p. 9 (Nitschinsk).
When the BSC certified on the plans submitted to the Registrar of Titles that all of the conditions of its approval had been met, it was incumbent upon it to ensure that the relevant surrenders were provided with that plan to the Registrar of Titles. Having failed to follow the statutory process, the only way that the BSC could obtain lot 49 and the resumed land for parkland was by having the holder of the Certificate of Titles issued by the Registrar of Titles following registration of the relevant plans surrender such Certificate of Titles to the BSC for park and recreation purposes. The fact that the applicant and Mr Wolfe subsequently surrendered lot 49 to the BSC[58] does not assist the respondent, even in circumstances where the applicant’s then solicitor stated in the correspondence to the Council of 4 September 1975 that the surrender of lot 49 “was a condition of your Council granting its consent and approval to the registration of the Plan”. Such a statement by the solicitors does not alter the statutory framework that the BSC was required to follow. In short, the surrender of lot 49 may have occurred due to a misunderstanding of the strict legal obligations imposed upon the applicant and Mr Wolfe; perhaps the surrender occurred because of a moral conviction on the part of the applicant and Mr Wolfe; perhaps, indeed, the surrender occurred because of nothing more than grace and favour by the applicant and Mr Wolfe. Whatever the true position may be, it is not up to this Court to guess what was in the mind of the parties subsequent to the approval of the subdivision of the land. The approval in this instance is clear and speaks for itself.
[58] See letter 4 September 1975, Exhibit 2, p. 32.
By the terms of By-law 10(e), it is clear that the BSC was required to consider the provision of parkland with respect to any application for subdivision. However, it is equally clear that the BSC was not compelled to require any land to be set aside as parkland, as the words “without in any way limiting the discretion of the Council” at the commencement of By-law 10 make clear. Indeed, the BSC could also have accepted Twenty Dollars per subdivisional lot in lieu of land for park and recreational purposes.[59]
[59] S.34 (12) (i) LGA.
It would be remiss not to also make reference to a memorandum from the Engineer, BSC to the Shire Clerk, BSC of 20 March 1973. This memorandum related to the proposed subdivision and set out four points which the author noted “require consideration” with respect to the application for subdivision. The first point requiring consideration was “Parks – Area of 1.85 ha is in excess of 5% of total area”.[60] A fifth point requiring consideration was handwritten at the bottom of the memorandum. Three of the points requiring consideration became conditions of the approval for the subdivision of Sunlit Waters Estate, including the handwritten point. The setting aside for an area for parkland did not become a condition.
[60] See Exhibit 2, p. 4.
Is the application plan part of the approval?
As the summary of the contentions of the applicant and the respondent shows, one point of difference is the scope of the BSC’s approval. Put simply, does the approval speak for itself, or is it necessary, and indeed required, that reference must also be had to the plan submitted with the application, and perhaps the application itself?
There is much authority on the question of when it is appropriate to have regard to extrinsic material in construing the terms of a Council approval. Somewhat surprisingly, I was not referred to the case of Mulgrave Shire Council v Red Hills Pty Ltd.[61] I will deal specifically with that case under a separate heading.
[61] (1994) 83 LGERA 323.
The first case to consider is that of Leichhardt Municipal Council v Terminals Pty Limited.[62] The question before the Court in Leichhardt MC was whether the local authority had approved the storage of bulk petrol on certain land. Hope J made the following observations:[63]
“Whilst it is true that generally speaking regard cannot be had to extrinsic evidence, other than evidence to identify a thing or place referred to, in order to interpret a public document such as a planning approval, reference may be had to documents, the terms of which are incorporated into the public document: Slough Estates Ltd v. Slough Borough Council [No. 2]; Ryde Municipal Council v. the Royal Ryde Homes. I say generally, for the basis of this view is that a planning approval operates for the benefit of successors in title to the owner who obtained the approval, and it would be quite inapt to alter the apparent meaning of the approval by reason, for example, of negotiations or correspondence between the original applicant and the council. The present approval purports to be limited to use by the defendant only, and its terms are fixed by reference to an inter partes deed. I am by no means clear as to the authority of the council to limit the approval to use by the defence, but no point has been taken in respect to this limitation before me. It may be, however, that in a case such as the present one reference may be had to extrinsic evidence in those circumstances in which that evidence is admissible in relation to an ordinary inter partes document. However, in relation to par. 7 of cl. A, the principal question is whether the relevant terms of the letter of Poole and Steel Ltd have been incorporated. The defendant submits that the words ‘in a letter from Poole and Steel Ltd, dated 18th August, 1961, on behalf of the applicant’ where appearing in par. 7 are quite otiose and merely historical. The council on the other hand submits that the plain construction of the paragraph is that the materials to be stored and/or handled at the depot were to be limited to those materials which were described in the letter of Poole and Steel Ltd by the names set out in par. 7. It seems to me that this construction is the proper one. It is, I think the natural meaning of the words, and it is the only meaning of the words which gives any effect to the reference to the letter.”
[62] (1970) 21 LGERA 44.
[63] At pp. 50-51.
The key principle for determining the case at hand from Justice Hope’s observations is that reference cannot be had to extrinsic document unless those documents are incorporated into the approval, save for the exception of formally identifying a thing or place referred to. In Leichhardt MC, the terms of the approval of themselves incorporated a detailed description of what chemicals could be stored on the land, and petrol was not one of those chemicals as the extrinsic document made clear.
The principles in Leichhardt MC were applied in Shell Company of Australia Ltd v Parramatta City Council [No. 2].[64] In that case, Hope JA, with whom Jacobs J and Manning JA agreed, said:[65]
“As has been held, it is not permissible, in order to determine what development has been approved, to construe the document constituting the approval in the same way as if it evidenced some inter partes transaction, for development approvals operate, as it were, in rem and may be availed of by subsequent owners and other occupiers of the land. The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council.”
[64] (1972) 2 NSWLR 632.
[65] See p.637E.
The Shell Company case concerned construction of the approval for a service station to be built, and particularly whether or not the applicant was authorised, by the approval, to fill the site. The Court determined that reference could be held to a plan which was “annexed to the instrument by which the authority allowed the appeal”.[66] That plan showed a building and related carpark on level ground and, as the land in question was not naturally level, by necessary inference the approval allowed the land to be filled.
[66] See p.637C.
I now turn to consider the case of Shroff v McSporran,[67] where White J (with whom von Doussa J agreed) had this to say:[68]
“The 1985 consent in the case before us is not, and does not purport to be, a self-contained document capable of interpretation by looking no further than the four corners of the page. On the contrary, the 1985 consent makes express reference to a plan and certain proposals. It incorporates the relevant supporting plan, exhibit P6, when it makes reference to the ‘amended plan’ and to proposed subdivision and parking areas. When reference is made to the plan (exhibit P6), the allocation of an area (area 4) to consulting room use can plainly be seen. By implication, the balance of the complex was to be used for shops and offices, hence the figures, signs, and symbols, on the plan and the marks representing eight car spaces. These measurements, marks, figures, and symbols, are only intelligible by reference to the Port Augusta Development Plan. I hold that a development plan may be used as an extrinsic aid to the interpretation of a consent unless the consent is completely unambiguous and is contained in a document which plainly shows that it contains the whole of the terms and conditions of the consent.”
[67] (1987) 65 LGRA 33.
[68] See p.38.
Again, it is critical to note that the approval itself made specific reference to the application plan.
The principle that, as a general rule, development approvals, as public documents operating in rem for the benefit of subsequent landowners, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it, was again adopted in Sydney Serviced Apartments v North Sydney Municipal Council [No. 2][69] and Woolworths Ltd v Campbells Cash & Carry Pty Ltd.[70] In Sydney Serviced Apartments, the approval referred specifically to certain drawings which accordingly could be referred to. Likewise, in Woolworths, the approval made reference to both the development application and to referenced plans. Indeed, Woolworths is noteworthy because it highlights the adoption by the local authority of a form of words now regularly used (in one form or another) as the first condition of approval. The actual wording in the Woolworths condition was:[71]
“CONDITIONS
1. Development to take place generally in accordance with Development Application dated 5th June, 1987 and plans submitted therewith, being Drawing No 162/DA/02 and 162/DA/03, except as modified by the undermentioned conditions.”
[69] (1993) 78 LGERA 404 at p.407.
[70] (1996) 92 LGERA 244 at p.249.
[71] See p. 249.
Likewise, in Serenity Lakes Noosa Pty Ltd v Noosa Shire Council,[72] Judge Wilson observed that:
“The approval was subject to conditions. One condition required the submission, and approval by Council, of building plans ‘… generally in accordance with the plans approved in this consent’.”
[72] [2007] QPEC 005 at p.2.
Given the modern day wording of conditions of approval as demonstrated by Woolworths and Serenity Lakes, it is hardly surprising that the authorities show it to be commonplace in the last decade at least to have reference to the development plans as they are invariably specifically incorporated into the conditions of approval. However, it must be remembered that in the case at hand I am considering a 1973 approval, made in accordance with the then legislation and By-laws. The approval must be read on its face. The approval notice of 1 May 1973 does not make specific reference to the plan as being a condition of approval. It does not formally annex the plan to the approval. The best it does is to refer to the submission of a plan and to return a copy of the plan “endorsed with the consent of the Council”.[73]
[73] See Exhibit 2 p.16.
In accordance with the authorities, it is clearly permissible to look at the plan to identify a thing or place referred to. In this regard, the Council was considering an application for subdivision of land into a new estate to be known as Sunlit Waters. It was not considering, for instance, any building approvals on any of the blocks of land: it was simply approving the creation of 324 allotments. Nothing further needs to be read into the approval than what is clear on its face. Although Counsel for the respondent would have me look beyond the approval itself to extrinsic documents which refer to 322 allotments, thus excluding two allotments for park, that IS NOT what the Local Authority approved. There is no doubt or ambiguity in the reference to lots 1-324 in the specific words of the Council’s approval notice of 1 May 1973.
I can do no better than repeat what Brabazon J said in Hawkins and Izzard v Permarig Pty Ltd & Brisbane City Council [No 1]:[74]
“As has been pointed out, serious inconvenience, ambiguity and confusion might arise if, in all cases, general statements of fact and assertions of intention in an application form, as well as other statements made in support of an application were to be regarded necessarily as terms or conditions of a development consent.
Therefore, it must be kept in mind that the construction of this approval package does not depend on the same principles which apply to the construction of a contract between parties. Even though certain things may have been shared knowledge between those who participated in the working up of the approval package, it is the package itself that must finally be definitive.
Any lack of clarity or certainty is the responsibility of the Brisbane City Council. It is said that the local authority should take the consequences of any failure to specify accurately or in details what is consented to as well as any conditions of that consent.”
[74] (2001) QPELR 414 at p.416.
I now turn to consider, in some detail, the Mulgrave Shire Council case.
The Mulgrave SC Case
Many facts similar to those applying in the case at hand were also present in the Queensland Supreme Court case of Mulgrave Shire Council v Red Hills Pty Ltd.[75] In Mulgrave SC, a large parcel of land was proposed for subdivision, and an application was made in 1984 by the then owner of the land for rezoning of the land to allow the subdivision to proceed in stages. The rezoning was approved pursuant to the provisions of the LGA then in operation. A condition of the approval related to the surrender of certain land for parkland. Subsequently, a deed was entered into between the Council and the then owner. By the deed, the landholder was required to transfer to the Crown land zoned as public open space.
[75] (1994) 83 LGERA at p.323.
After the first four stages of the land were developed, the landholder sold the remaining land to Red Hills, which subsequently sought subdivisional approval for stages 5 and 6, which were both approved by the Council under the then operative provisions of s.34 LGA, which were similar to the provisions current in 1973.
Stages 5 and 6 were both approved with conditions relating to surrender of land for parkland. Red Hills did not make any objection to any of the conditions. However, by inadvertence on the part of the Council, when the plans for stages 5 and 6 were certified under the then provisions of s.34(6)(d) of the LGA, the Council failed to include reference to the parkland conditions, and the relevant surrenders were not obtained from Red Hills.
Justice GN Williams found that, although no contract came into existence during the processing of the development applications, it was possible for contractual obligations to come into existence between a developer and a Council once approval had been granted. Further, his Honour found that if there was a statutory obligation on the part of the developer to transfer land to the Crown as parkland as a condition of the approval, such land is held by the developer on trust for the Crown once development of the land commences. Importantly, GN Williams J made the following observations:
“Here the defendant accepted the terms and conditions imposed by the local authority on its application for subdivision. Thereafter it proceeded with the subdivision and (presumably) made a profit out of the sale of the various lots. In so acting, in my view, it accepted the obligations imposed on it by the terms of the approval, including the one requiring the transfer of land to the Crown, and binding contractual obligations were thereby created. To use the language of the High Court in Lloyd v Robinson (1962) 107 CLR 142 at 154, the quid pro quo for the restored right to subdivide the land included the obligation to transfer the ‘balance area’ to the Crown. The defendant has taken the benefits of the approval without complying with all the obligations it accepted as attaching thereto.”[76]
…
“Alternatively, the plaintiff seeks an order directing the transfer of the ‘balance area’ to the Crown on the basis that the defendant is the holder of that land on trust for the Crown. The trust is said to arise from the conduct of the parties and the provisions of s 34 of the Local Government Act 1936 (Qld) as it stood at the material time. There is force in that submission advanced on the plaintiff’s behalf. As the price of obtaining the right to subdivide the defendant undertook to transfer the ‘balance area’ to the Crown, and thereafter it obtained the benefits of the approval so given. I do not consider it appropriate to regard the defendant, in those circumstances, as the trustee of the ‘balance area’. Clearly, the defendant was under a statutory obligation, if nothing else, to transfer that land to the Crown. Once it proceeded with the subdivision it held the ‘balance area’ on trust for the Crown.”[77]
[76] Mulgrave SC at p.327.
[77] Mulgrave SC at p.328.
I accept all of the reasoning of Justice Williams and the conclusions he reached. However, in my view, that does not assist the respondent in the present case. The key distinction between Mulgrave SC and the case at hand is that conditions requiring the transfer of parkland were clearly part of each approval. Given such conditions, it legally follows that the trust Justice Williams spoke of would come into effect. The trust in Mulgrave SC was sourced in the approval. Clearly, in the current case, the applicant and Mr Wolfe did everything required of them in accordance with the approval and no trust therefore arose.
One further aspect of Mulgrave SC should be considered. That relates to the inadvertence of the Council in requiring the surrender of the parkland as part of its certification of the plans. In this regard, Justice Williams had this to say:[78]
“Clearly, the plans for stages 5 and 6A ought not to have been registered without the concurrent registration of the transfer of the ‘balance area’ to the Crown. The question which is relevant for present purposes is whether or not the registration of the plans, without the concurrent fulfilment of the condition requiring land to be transferred to the Crown constituted a waiver of the condition. As noted above, there was no express decision by the plaintiff to waive compliance with the condition; what happened occurred through inadvertence. Counsel for the plaintiff argued that cl 23 was not a ‘requirement’ for purposes of the provisions of the Local Government Act, to which reference has just been made. There may well be some force in that, because those provisions are more directly concerned with requirements relating to matters specified in those plans themselves. This is not a ‘requirement’ bearing upon a road or a lot depicted in the plan being registered. It is an extraneous matter related generally to the subdivisional approval. To that extent it is clearly caught by subs (12A(a), but arguably not by subs (6)(d). But I would prefer not to decide the case on such a ground.
…
In the circumstances of this particular case, I cannot see that the inadvertence of the plaintiff in about May 1989 constituted a waiver of the plaintiff’s right to obtain a transfer in favour of the Crown of the ‘balance area’ referred to in cl 23. It has not been suggested that there has been any detriment suffered by the defendant in consequence of the plaintiff sealing the relevant plans as and when it did; indeed the concession that the area of approximately 17.86 hectares is transferable (albeit consequent upon the terms of the re-zoning deed of 28 June 1985) is a sufficient answer to such a proposition. In the circumstances, I am of the view that waiver has not been made out.”
[78] Mulgrave SC at p.330.
As is the case with respect to the trust and contract points, the key point remains the terms of the actual approval. In the present case, the issue of waiver does not arise because the Council had not approved anything requiring a waiver.
The BSC Approval
In this matter, like in all matters heard before it, the Land Court can only be influenced by the evidence placed before the Court. It is certainly not appropriate for the Court to guess or speculate. The evidence is clear that the BSC decided to approve the Sunlit Waters subdivision subject to conditions. Assuming that the BSC obeyed its statutory obligations, in considering the application for subdivision the BSC must also have considered whether or not it required an area of land to be set aside for parkland. It chose not to make any condition requiring the setting aside of any land for parkland. Had this been an oversight or an error on the part of the Council, it could have been rectified (or at least an attempt could have been made at rectification) by the BSC not certifying the relevant plans for survey until a surrender of the relevant land for park purposes was received. It chose, by either act or omission, not to do so. The advice provided to HBTC by the Land Administration Commission on 17 April 1984 is entirely consistent with this position.[79]
[79] See Exhibit 2 p.34.
Whilst it is argued on the part of the respondent that a payment of compensation to the applicant in this matter would be, in effect, an unwarranted windfall for the applicant, such windfall is directly a consequence of the respondent’s own actions.
The respondent has gone to some length to argue that representations made by the applicant, as it puts it, created a form of trust relationship as between the Council and the applicant. I reject all of the arguments put by the respondent in this regard. In this matter, I am considering the value of the applicant’s estate in the land in light of the impact of an application for subdivision in accordance with the LGA and the BSC By-laws. The rights and obligations of the various players are set out clearly within both the LGA and the By-laws.
There is a further difficulty that faces the respondent even if it were possible in the circumstances at hand for a trust between the applicant and the BSC to have been created. The evidence before this Court is limited. On its face, this is not overly surprising due to the fact that the application for subdivision was lodged over 39 years ago. That however, does not really paint the entire picture. The respondent has known at least since April 1984, when it received the correspondence from the Land Administration Commission, that it required the formal surrender of the resumed land because the “Council’s approval endorsed on the back of the Plan of Subdivision is not subject to the above Lot being transferred to the Crown for Park and Recreation Purposes”.[80] Although obtaining oral and other evidence to support its contention that a trust existed as between the respondent and the applicant 39 years after the event would be fraught with many difficulties, those difficulties would have been substantially less only 11 years after the approval.
[80] Exhibit 2, p. 34.
Such is the paucity of evidence; the respondent has not even attempted to propose the date that the trust is said to have come into existence.
Successors in Title
As the authorities above show, an important aspect to consider in a planning approval is the impact on successors in title. For completeness, it is worth considering the situation which would have been apparent to any successor in title as at the date of acquisition.
Any successor in title/hypothetical prudent purchaser who passed the Spencer case test[81] would have noted the following attributes of the resumed land as at 15 May 2009:
1. The current owner held freehold title to the land.
2. There were no registered caveats current restricting any dealing in the land.
3. The land was vacant land located in a residential development.
4. The land was zoned “Low Density Residential”.
[81] See Spencer v The Commonwealth (1907) 5 CLR 418.
The circumstances outlined in the preceding paragraph, noting in particular the respondent’s own zoning of the resumed land, mitigate against the case put before this Court for many reasons, not the least of which is public confidence and certainty in both the registration of freehold title and the zoning of land.
Conclusion
For all of the reasons set out above, in my view I am left with no option but to award the applicant compensation in the sum of Two Hundred and Sixty Thousand Dollars ($260,000), being the agreed highest and best value of the land, plus interest and disbursements. It matters not that the applicant has not paid any rates on the land since the grant of Certificate of Title, or that he has not undertaken any maintenance work by way of keeping the subject block neat and tidy. It is the respondent itself that has chosen not to issue any rates notices to the applicant, and it is also the respondent that has chosen to maintain the land.
Whilst I have no doubt that the respondent will view this decision as unjust, it is a situation of its own making. This Court does not hold any jurisdiction to enforce any moral obligation onto the applicant, even if I were satisfied that such moral obligation existed.
Disbursements and Interest
At this stage, I have been requested to make a determination solely on the question of the determination of compensation for the applicant with respect to the compulsory acquisition of his interest in the resumed land. I will hear from the parties as regards disbursements and interest, and costs.
Orders
1. Compensation is determined in the initial amount of Two Hundred and Sixty Thousand Dollars ($260,000).
2. The Court will hear from the parties as regards final determination of the quantum of disbursements and interest, and as to costs.
P A SMITH
MEMBER OF THE LAND COURT
Annexure 1
SUBDIVISION OF LAND
34. (1) New roads and subdivisions by private persons. A new road shall not be opened by any private person or company, and land shall not be subdivided by any private person or company except in accordance with this Act.
Blind road. For the purposes of this section any road which does not give access at both ends to either a principal road, secondary road, or residential road shall be deemed to be a blind road.
Opening blind roads. A road other than a pathway shall not be opened as a blind road—
(a) Unless there is also provided at least one pathway to give access from the blind end into a principal road, secondary road, or residential road; or
(b) Unless such road gives access at its blind end to a railway station, wharf, reserve, river-bank, lake, sea-beach, or the shore of any tidal water; or
(c) Except where, in exceptional circumstances, the Local Authority approves.
A pathway shall not be opened as a blind road unless one end communicates with a principal road, or secondary road, or residential road, and the blind end gives access to a railway station, wharf, reserve, river-bank, lake, sea-beach, or the shore of any tidal water.
Junctions. At any junction or intersection made by opening any road, the person opening the road shall make provision for the planning of the corners formed at such junction or intersection to the satisfaction of the Local Authority in such manner as will facilitate the flow of traffic:
Provided that nothing in subsections three and four hereof shall apply where the land is not within a residential locality or is not within a locality which probably will become a residential locality.
Number of houses in residential district. The Local Authority may, with respect to any part of the Area, fix the number of houses per hectare which shall be the maximum standard number permitted in any future subdivision of land within that part of the Area:
Provided that the standard number of houses shall be so fixed as to provide a minimum area for each house of 400 square metres.
In ascertaining the area for the purpose of applying such standard, the whole area of the land proposed to be subdivided, including any proposed roads, reserves, open spaces, and the like, shall be embraced.
In any subdivision made after a maximum standard number of houses per hectare has been fixed, there shall not be a greater number of separate parcels per hectare than the maximum standard number so fixed:
Provided that in any particular case of subdivision the Local Authority may vary the maximum standard number where by agreement with the Local Authority special provision is made for roads, reserves, open spaces, and the like.
Until a town planning scheme has been approved by the Governor in Council, as hereinbefore provided, and until a maximum standard number of houses per hectare has been fixed within any part of the Area as aforesaid, no map or plan of subdivision of land in which any allotment or portion of such land is shown as of less area than 400 square metres shall be approved; and not more than one house shall be erected or rebuilt or re-erected or be substantially rebuilt or re-erected on an allotment or portion of land unless with the approval of the Local Authority.
(5A) Subsection five of this section applies subject to this subsection.
Where the Local Authority is satisfied that a subsisting allotment or portion of land abutting upon a junction or intersection of roads requires to be truncated in such manner as will facilitate the flow of traffic, and that the part of such allotment or portion which will facilitate the flow of traffic has been dedicated for road purposes on a map or plan of sub-division effecting such truncation, the Local Authority may approve of such map or plan of subdivision notwithstanding that the area of the remaining part of such allotment or portion is less than 400 square metres.
Preliminaries to opening road, etc. A road shall not be opened and, in a case where a subdivision provides for the opening of a road, land shall not be subdivided, until—
(a) An application in respect thereof, accompanied by plans and specifications thereof (which plans of a subdivision, if the Local Authority so requires, shall show the contours of the land and all known flood levels), has been approved under this section; and
(b) The roads have been constructed and drained in accordance with the requirements of the Local Authority or as may be prescribed by by-law; and
(c) The applicant has placed in the road permanent survey marks in the position and manner and of the character required by the Local Authority; and
(d) A plan of the road or of any subdivision containing the road bearing the signatures of all necessary parties, and a statement containing such particulars as may be necessary to identify the title to the land comprised in such plan has been approved by a notation of approval under the seal of the Local Authority, including a certificate that all the requirements of the Local Authority and of this Act and of any by-law have been complied with;
(e) The plan so noted under the seal of the Local Authority, and endorsed with the approval of the Local Authority, has been registered in the office of the registrar of titles:
Provided that such plan shall be lodged for registration within six months after the date of the notation of approval of the Local Authority on such plan.
Alternative conditions. Any applicant, instead of executing the work of constructing and draining the roads, as hereinbefore provided, may either—
(a) Pay to the Local Authority such sum as may be agreed upon with the Local Authority as the cost of executing such work, and agree with the Local Authority as to when such work shall be executed by the Local Authority; or
(b) Give to the Local Authority security to the satisfaction of the Local Authority that he will execute such work within such time as may be fixed by the Local Authority.
No moneys shall be paid to or accepted by the Local Authority nor shall any agreement be made by the Local Authority pursuant to the provisions of subparagraph (a) of the immediately preceding paragraph of this subsection unless and until a contract in writing shall first be made between the applicant and the Local Authority. Such contract shall set forth the nature and extent of the work of constructing and draining the roads (including a specification thereof), the sum which the applicant agrees to pay to the Local Authority, the date on or before which the Local Authority shall commence to construct such work, and the date on or before which such work shall be executed by the Local Authority.
Unless and until a contract in writing in accordance with the provisions of this subsection is first made, the Local Authority shall not seal and endorse the plan of subdivision with its approval.
If, at any time, the Minister is of the opinion that the Local Authority has failed to observe in any respect the contract, he may give to the Local Authority any such orders and directions as he shall deem necessary to ensure observance by the Local Authority of such contract. The Local Authority shall, within such time as the Minister may specify, carry out to the satisfaction of the Minister the requirements of such orders and directions.
Preliminaries to subdivision. In a case where a subdivision does not provide for the opening of a road, land shall not be subdivided until—
(a) An application in respect thereof, accompanied by plans (which plans, if the Local Authority so requires, shall show the contours of the land and all known flood levels), has been approved under this Act; and
(b) A plan of the subdivision bearing the signatures of all necessary parties, and a statement containing such particulars as may be necessary to identify the title to the land comprised in such plan, has been approved by a notation of approval under the seal of the Local Authority, including a certificate that all the requirements of the Local Authority and of this Act and of any by-law have been complied with;
(c) The plan so noted under the seal of the Local Authority, and endorsed with the approval of the Local Authority, has been registered in the office of the registrar of titles:
Provided that such plan shall be lodged for registration within six months after the date of the notation of approval of the Local Authority on such plan.
(8A) If, at any time, the Minister is of opinion that the Local Authority has failed-
(a) to observe in any respect an agreement in connexion with the subdivision of land entered into pursuant to the by-laws between the Local Authority and a person who is or was the applicant for the subdivision in question; or
(b) to expend in accordance with the by-laws any moneys that are paid to the Local Authority in connexion with the subdivision of land to be expended by it towards the provision of public garden and recreation space in respect of the land the subject of the subdivision in question,
the Minister may give to the Local Authority any such orders and directions as he deems necessary to ensure the observance by the Local Authority of the agreement or, as the case may be, the expenditure of the moneys in accordance with the by-laws.
The Local Authority shall, within such time as the Minster may specify, carry out to the satisfaction of the Minister the requirements of such orders and directions.
Registered plans to be deposited. A copy of every such registered plan shall be deposited at the office of the Local Authority and there recorded, and upon any failure so to do within one month after such plan has been so registered in the office of the registrar of titles the applicant shall be liable to a penalty not exceeding forty dollars.
Sale lithographs. Every sale lithograph or print relating to such subdivided land shall show the contours of the land and all known flood levels in accordance with the plans submitted to the Local Authority where such particulars have been required to be shown on such plans.
(10) Applications, etc. Applications under this section shall be submitted to the Local Authority.
The Local Authority may approve of any such application, or approve subject to conditions, or disapprove.
The Local Authority shall cause notice to be given to the applicant of its decision.
In the case of an approval given subject to conditions, or of a disapproval, the reasons therefore shall be stated in the notice.
(11) Matters to be considered in approving opening of road. In respect of any application for approval of the opening of a road, the Local Authority shall take into consideration—
(a) The situation and planning of the road in relation to public convenience, present and prospective, and to inter-communication with neighbouring localities within or without the Area; and
(b) The method of draining the road necessary in the circumstances, present and prospective, and the disposal of the drainage; and
(c) Whether or not the owner will transfer or convey to the Local Authority in fee-simple for a nominal consideration any necessary drainage reserves; and
(d) The character or construction of the roads necessary in the circumstances, present and prospective; and
(e) Whether or not kerbing, guttering, and footpaths should be provided; and
(f) The treatment of junctions or intersections of roads; and
(g) The classification of the road as hereinafter provided; and
(h) Whether the locality is a residential locality; and
(i) If any proposed new road will be a lane, whether or not a lane should be permitted in the circumstances.
(12)Or in approving subdivision. In respect of any application for approval of a subdivision of land (whether the subdivision involves the opening of a road or not) the Local Authority shall take into consideration—
(a) The size and shape and utility of each separate parcel; and
(b) The length of road frontage of each separate parcel; and
(c) The situation and planning of the separate parcels in relation to public convenience, present and prospective; and
(d) The existing and proposed means of access to each separate parcel; and
(e) Whether or not the owner will transfer or convey to the Local Authority in fee-simple for a nominal consideration any necessary drainage reserves; and
(f) Whether the locality is or probably will become a residential locality; and
(g) Whether the land or any part thereof is low-lying so as not to be reasonably capable of being drained, or is not fit to be used for residential purposes; and
(h) The maximum standard number of houses to the hectare, if any, fixed by the Local Authority; and
(i) The amount of public garden and recreation space to be provided in respect of the land to be subdivided or whether, in accordance with a by-law of the Local Authority, the applicant should be required to pay to the Local Authority a sum not exceeding twenty dollars for each proposed parcel in the subdivision to be expended towards making such provision;
(j) The truncating of land abutting on road junctions or inter-sections of roads; and
(k) The situation and planning of the separate parcels in relation to the costs of supplying water, gas and electricity to the several parcels including in particular whether the subdivision could be redesigned so as to reduce those costs, or any thereof, and either to the supplier or to the consumer, or both: and
(l) Whether in accordance with a by-law of the Local Authority, the applicant, in respect of water supply or sewerage or both water supply and sewerage, should be required to -
(i)provide for the reticulation thereof to the land be subdivided;
(ii)contribute towards the cost of the provision thereof (other than by reticulation) to the land to be subdivided, by way of a contribution towards the cost (whether incurred before or after the making of the application) in connection with the construction of mains, or the augmentation of existing mains, or the construction of pumping stations, or the augmentation of existing pumping stations, required to be undertaken by the Local Authority for such provision, other than the cost of constructing a main or pumping station which is in existence at the date of the coming into operation of the by-law.
Provided that the Local Authority shall not take into consideration the matters set out in subparagraphs (e), (g), (h), (i), (j) and (l) of the first paragraph of this subsection unless in its opinion the land the subject of the application is situated in a part of the Area which is being used or will, if the subdivision is effected, be used for residential, commercial or industrial purposes.
(12A)Where the Local Authority requires as a condition of approval of a plan of subdivision of land that the subdivision provide land for public garden or recreation space, the registrar of titles shall not register such plan unless and until a transfer or transfers surrendering to the Crown all land provided in the plan for public garden or recreation space has been lodged in his office and he is satisfied that such transfer or transfers is or are correct for registration.
Land surrendered to the Crown pursuant to this subsection, shall, pursuant to Part XI of “The Land Acts, 1962 to 1963,” be reserved and set apart for the purpose for which it was provided in the plan and placed under the control of the Local Authority as trustee.
(13) Gas mains, etc. (a) The Local Authority may, when giving its approval for the opening of any road, specify in the approval and cause to be indicated on the plan the position in which water and gas or electric mains shall be placed when laid in the road, and the position where the gutters or road drains are to be constructed:
Provided that before the Local Authority proceeds to indicate on the plan such position relating to any mains, the representatives of the water, gas, or electric interests shall be consulted in order to determine the suitability of such position.
When water or gas or electric mains are thereafter laid in such road by any person, whether under the authority of any Statute or otherwise, they shall, unless the Local Authority otherwise permits, be laid in the positions so indicated.
(b) Where any person opens a new road or subdivides any land fronting any existing road which is not then constructed in some permanent manner, the Local Authority may require such person to make such provision (by laying conduits across the road at suitable intervals) as will enable gas, water, and electric service pipes to be laid to connect the mains with the various parcels of land fronting the road and owned by that person without digging up the constructed carriage-way of the road. Any such conduit shall be laid in such manner as the Local Authority may require.
(c)The laying of pipes pursuant to this subsection shall be deemed to be a portion of the work of the construction and drainage of a new road, and the other provisions of this section shall apply thereto accordingly.
(14)Dedication of road. As soon as the plan of any road or of any subdivision containing a road has been registered in the office of the registrar of titles, the road shall be deemed to be opened as a road and thereby to be dedicated accordingly.
(15)(a) The Local Authority shall decide every application for approval to open any new road or to subdivide any land within the period prescribed by this subsection and shall in every such decision state the grounds thereof.
Such period shall be-
(i) forty days from the date of the receipt by the Local Authority of the application; or(ii) (if, with the prior approval of the Minister, the Local Authority by notice served upon the applicant before the expiration of the aforesaid period of forty days extends such period for longer than forty days) the longer period specified in the notice.
Where the Local Authority decides an application to which this paragraph (a) applies, the clerk shall notify the applicant of such decision within seven days from the date of the making thereof.
Such notification shall contain or be accompanied by a copy of this subsection.
Any applicant who is dissatisfied with the decision of the Local Authority may appeal to The Local Government Court.
The appeal may be instituted within thirty days after the date of the receipt by the applicant of the notification, but not later.
Where the Local Authority fails to decide an application to which this paragraph (a) applies within the prescribed time the applicant may appeal to The Local Government Court as if the Local Authority had refused the application.
Subsections (2) and (3) of section twenty-eight of “The City of Brisbane Town Planning Acts, 1964 to 1967,” apply in respect to any appeal to The Local Government Court under this paragraph (a).
(b) Any appeal referred to in subsection (15) of section thirty-four of “The Local Government Acts, 1936 to 1965,” as in force immediately prior to the date of the passing of “The Local Government Acts Amendment Act of 1966,” may be made as prescribed by that subsection and such an appeal if so made, and any such appeal duly made before and not completed at the date mentioned in this paragraph, shall be heard or, as the case requires, the hearing thereof shall be completed, and in every such case the appeal shall be determined, as if that subsection were still in force.”
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