Pike & Anor v Tighe & Anor

[2017] HCATrans 127

[2017] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B5 of 2017

B e t w e e n -

JOSHUA JAMES PIKE AND NATALIE PATRICIA PIKE

Applicants

and

KIM LOUISE TIGHE AND MICHAEL JAMES TIGHE

First Respondents

TOWNSVILLE CITY COUNCIL

Second Respondent

Application for special leave to appeal

KIEFEL CJ
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2017, AT 11.12 AM

Copyright in the High Court of Australia

MR D.R. GORE, QC:   May it please the Court, I appear with my learned friend, MR J.G. LYONS, for the applicants.  (instructed by wilson/ryan/grose Lawyers)

KIEFEL CJ:   Thank you.  The first respondents have advised the Court that they do not seek to make oral submissions and will rely upon their written submissions, and the second respondent has filed a submitting appearance.  Yes, Mr Gore.

MR GORE:   Thank you, your Honour.  Your Honours, in our submission, the Court of Appeal made two basic errors in its decision.  The first was that in its view the power of the Planning and Environment Court to make enforcement orders under section 604(1) of the Sustainable Planning Act only arose upon the court being satisfied that the first respondents had committed the alleged development offence.  That conclusion is at paragraph [22] at page 39 of the application book.

The second basic error was that the Court of Appeal decided that section 245 of the Sustainable Planning Act did not apply to the first respondents for two basic reasons:  firstly, because they were not parties to the reconfiguration of the original lot approved by the development approval - that reason appears in paragraph [37] at page 45 of the application book; and secondly, because the obligation in condition 2 only had to be complied with at the time of registration of the survey plan.  That reasoning appears in various places but chiefly in paragraphs [24] and [26] at page 40 of the application book, and in paragraph [36] at page 45 of the application book.

Your Honours, we submit that the two errors are interrelated but that the second error would probably be viewed as the more critical of the two.  We submit by way of introductory submissions that the applicant’s argument on that second critical question is, we submit, supported by the two Queensland cases which were referred to by the Court of Appeal, the single judge decision of Peter Lyons Justice in Wirkus v Wilson Lawyers, and the Court of Appeal decision in Peet Flagstone, whereas there is no decision of any court that the Court of Appeal relied upon or could be pointed to that points the other way.

So, part of our argument is that the Court of Appeal have erred in their treatment of the two Queensland cases which we say are supportive of the applicant’s position.  Further, we submit that ‑ ‑ ‑

KIEFEL CJ:   Are you saying that creates an inconsistency for the Queensland statute?

MR GORE:   That is one of the consequences, yes, your Honour.  The first submission is that it identifies the error in the Court of Appeal’s reasoning but secondly, as your Honour says – or asks – it does create an inconsistency.  Your Honours, we also ‑ ‑ ‑

BELL J:   Does that turn on the correctness or otherwise of a construction of section 245 that its language is not of a continuing and freestanding obligation severed from the simultaneous creation of the approved reconfiguration?

MR GORE:   Your Honour, that is the language that the Court of Appeal used in describing condition 2 ‑ ‑ ‑

BELL J:   Yes.

MR GORE:   ‑ ‑ ‑ rather than the language they used to describe section 245.

BELL J:   Section 45, I am sorry, yes.

MR GORE:   What they did say about section 245 at page 40 of the application book ‑ ‑ ‑

BELL J:   Yes, it is the succeeding paragraph.  Having construed the condition in the way that their Honours did, the majority – well, the Court of Appeal unanimously were of the view that the effect of 245 to the extent that it speaks of the development approval attaching to the land and binding a successor in title is to cover the situation of a change in ownership of the land before the completion of the reconfiguration.  Is that right?

MR GORE:   That is the example they gave, your Honour, and it is a very narrow example.

BELL J:   Yes.  And so it is that aspect of the construction of 245 that you say the ‑ ‑ ‑

MR GORE:   Is in error, yes.  And, your Honour, I can direct you to paragraph [26] on page 40 where Justice Fraser said that our argument attributed:

additional effects to s 245(1) in combination with section 580(1).

I invite you to read the balance of the paragraph.  We agree with him that that is our argument, that there are those additional effects of section 245 and that the Court of Appeal was wrong to take such a narrow and artificial view.  I was dealing in an introductory way with the authorities.  Your Honours will have noted also that we submit that the decision of this Court in Hillpalm, properly analysed, indeed supports the applicant’s argument, chiefly, of course, the dissenting judgments of Justices Kirby and Callinan, but all of the judgments read in the light of the Queensland legislation which is different to the New South Wales legislation under consideration in that case.

BELL J:   There was no equivalent to section 245.

MR GORE:   Precisely, your Honour.

BELL J:   But, on the other hand, as I read Justice Fraser’s judgment, at paragraph [31] his Honour makes clear that he is determining the application in light of the distinct statutory provisions that are engaged.  I did not understand his Honour to be viewing Hillpalm as determinative.

MR GORE:   Your Honour, that is so, but it is our submission that his Honour erred in considering that Hillpalm did not provide guidance which assists with the applicant’s argument.

BELL J:   I see, yes.

MR GORE:   I will develop that argument a little further shortly.  Obviously the judgment of the Court of Appeal in Hillpalm is supportive of the applicant’s arguments, but it of course needs to be read in the light of the decision of this Court in Hillpalm.  Now, your Honours will recall that Justice Fraser spoke of some very odd results if the applicant’s argument was right, and we have addressed those in the application.

May I be granted the indulgence of identifying some very odd results if the Court of Appeal decision is right by first referring to what I would call quite a common example of what may occur?  Assume, your Honours, a case where company A makes an application for development approval to reconfigure a lot and make a material change of use of rural land with the intended change of use being to residential and with the proposed change of use being – with the number of lots being 50 and the change of use being to residential.

Assume that there is a condition of that approval, particularly the reconfiguration approval, that the internal roads that will necessarily be required to service the new 50 lots have to be constructed to a particular pavement strength to take vehicles, et cetera, a fairly standard requirement, and that that has to be done - the roads have to be constructed to that standard before the survey plan is registered and before the lots can be sold and the road used by the purchasers of the lots.

Assume that the survey plan is registered and the 50 lots are created and that after that point, company A sells the development site to company B before any of the lots are sold to any individual owners.  Assume that subsequently the 50 lots are sold and that subsequent to that it is discovered with the use of the internal roads – discovered by the local authority - that the roads have not been constructed to the required pavement standard and that it is unsafe for the vehicles.  Assume further that company A has gone into liquidation by this time but that company B has achieved substantial profits from its sale of the 50 lots.

It is our respectful submission that that is the very sort of case that the combination of section 245 and the enforcement provisions - section 580, 604 and so on – was designed to catch because on those facts there has been non‑compliance with a condition, the non‑compliance has not been picked up at the time the survey plan was registered, it is a serious non‑compliance, as the subsequent assumed facts reveal, the company responsible for, or prima facie responsible for the non‑compliance - company A - is not available, as it were, to remedy the breach, but company B is.

KIEFEL CJ:   But, Mr Gore, you would expect the local authority then to enforce that, as you say, as a contravention of the development approval.

MR GORE:   Correct.

KIEFEL CJ:   But here the situation is rather different.  You have in effect neighbours asserting some personal right under the auspices of the offence provision, seeking to enforce.  You do not have the local authority doing it.  Is that not a point of distinction?

MR GORE:   With respect, it is not, your Honour.  What is common to the two examples is that there has been what I will call a mistake in the registration of the survey plan.  What is common to the two examples is that a condition of approval has not been satisfied or complied with at the time of registration of the survey plan and that an enforcement order is sought subsequently.

KIEFEL CJ:   But for there to be an offence there has to be a contravention of a development approval.

MR GORE:   Yes.

KIEFEL CJ:   If roads are not built to a certain specification, that might be a contravention.  Here something was just not done and the local authority signed off on it.  So you ended up with a survey plan with an easement incorporated within the survey plan being registered.  What your clients are then asserting is a right to effectively require their neighbours to seek an amendment of that via the process of an offence provision.

MR GORE:   That is so, your Honour, but there is no difference in principle, with respect, because what has happened is a case of what we would call partial compliance with the condition; partial compliance because an easement was registered, but not full compliance because it was only registered in respect of access, not in respect of onsite manoeuvring and services as well.

KIEFEL CJ:   Could I test it one other way?  Would you say that the local authority would be able to establish an offence under section 581 against the first respondents?

MR GORE:   Yes, your Honour.

KIEFEL CJ:   What is the contravention?

MR GORE:   They have failed at the applicant’s request to bring the easement into line with the condition and ‑ ‑ ‑

KIEFEL CJ:   Even though the local authority signed off on it?

MR GORE:   Your Honour, can I respectfully submit that the expression “signed off on it” is ‑ ‑ ‑

KIEFEL CJ:   Well, I am sorry, that is rather loose.  It is not a very legally technical expression, but they approved – the local authority approved the plan which was registered which incorporated the easement without the full description.

MR GORE:   Your Honour, that is so, and the reason I hesitated to adopt your Honour’s term is because your Honours will see from the reasons of the primary judge, Judge Durward, that there was some uncertainty, if you like, about how this happened, and he referred to evidence from a Council officer, a Mr Hay.  There is a basis for thinking that the Council was distancing itself somewhat from the registration of the easement because it was from their perspective a private easement.

The findings that Judge Durward made are somewhat lacking, but it does not make this case an inappropriate vehicle to determine these important points because, if we are right, in answer to the Chief Justice’s question, yes, there is an offence we submit that has been committed now by the first respondents in failing to bring the easement into line with the condition because it is our submission that the effect of section 245 is to enable proceedings of this kind to be brought.

I was trying to illustrate that in an example which had less private interests but still the same basic facts with my 50 lot example.  That is a case of partial compliance again, that is a case where the local authority has approved of the registration of the survey plan, but it is not discovered until later that there in truth has not been compliance.

Your Honours, can we give some other examples?  Take a case where there are rates or charges required to be paid before a survey plan is registered and the survey plan is again registered by mistake, when all of the rates are not paid; that is discovered later by the local authority.  Plainly, we submit, it was the intention of Parliament to enable the original person with the benefit of the development approval or any subsequent owner to be subject to an enforcement order to recover those rates.

As we have pointed out in our submissions, whether the order is made is a matter for the exercise of the court’s discretion at the end of the day.  This was touched upon by Justice Callinan in this Court and by Justice Hodgson in the New South Wales Court of Appeal, and we urge that reasoning upon your Honours.  But the power has to be there, is the thrust of our argument.

What we would also point out, your Honours, to go to the facts of this case is there are three types of compliance to consider.  I have described what happened as partial compliance.  Consider a case of full compliance.  Assume that in this particular case Mr Carey, who was the owner of the parent parcel, complied fully with condition 2.  The plan was registered and then the day after Mr Carey decided that he did not want to proceed with that aspect.

Under section 90 of the Land Title Act you do not need the consent of the local authority to surrender an easement.  You obviously need the consent of the dominant tenement.  But Mr Carey, being both dominant/servient, could give that consent.  So he could have created a situation where the easement was surrendered, but that would have involved then a point of non‑compliance with the condition.

But on the Court of Appeal’s reasoning, the relevant sections of the Act would not extend to that situation because the condition had not only been spent at the time of the registration of the survey plan, it had in fact been complied with.  This is an aspect that the Court of Appeal in the paragraphs that I have identified did not address.  They speak about the obligation in condition 2 not being capable of being severed from the approval itself and not having some operation where it can survive.  Both Justice Fraser and Justice Philippides used the notion of spent, that it has been spent.

But, your Honours, these conditions are intended to survive a reconfiguration in circumstances where things go wrong, such as the examples that I have given thus far.  Your Honours, Justice Fraser sought, if we go to paragraph [25] on page 40 of the application book, to give examples of the effect of section 245 as he saw it, and the first example does not really add much.  It does not say that Parliament has done very much when there has merely been a sale prior to any registration.  But then he goes on to say ‑ ‑ ‑

BELL J:   But it gives some work to 245.

MR GORE:   Very limited, your Honour, extremely limited.

BELL J:   Yes.

MR GORE:   Then I invite your Honours to read the long sentence beginning “Conversely”.  Perhaps I should make the submission before your Honours read it.  When one reads that sentence carefully, he really gives an example that supports the applicant’s case, because he is talking about the survey plan being registered but action being possible after the registration of the survey plan in relation to the very condition we are concerned with, condition 2, and he also speaks in the last two lines of condition 2 attaching to lot 1. 

Whereas in paragraph 27, a later paragraph, he seems to speak of the land in section 245 as not including any subsequent lots but as being confined to the parent parcel, and Justice Philippides was quite express about that.  So it is very difficult, with great respect, to reconcile that second example in paragraph 25 with the paragraph before it, paragraph 24.

GAGELER J:   You indicated earlier that you rely on there being an inconsistency between this decision of the Court of Appeal and an earlier decision of the Court of Appeal in Peet Flagstone.

MR GORE:   Yes.

GAGELER J:   Can you elaborate that, please?

MR GORE:   Yes.  Do your Honours have a copy of Peet Flagstone?  I can provide copies.

KIEFEL CJ:   No.

MR GORE:   I have probably provided too many copies.

KIEFEL CJ:   The single judge decision that you say is contrary to this, Wirkus v Wilson Lawyers, there his Honour held that it does not matter that you are not a party to the ‑ ‑ ‑

MR GORE:   Correct.

KIEFEL CJ:   ‑ ‑ ‑ earlier agreement, that section 245 has its effect and ‑ ‑ ‑

MR GORE:   Yes.

KIEFEL CJ:   So is Peet Flagstone to similar effect?

MR GORE:   Peet Flagstone is to similar effect.  Your Honours, can I put it into the context of the Court of Appeal’s judgment first by directing you to paragraph [32] on page 42 of the application book?  In that paragraph, Justice Fraser gives his reasons, with the agreement of the others, why Peet Flagstone did not support our contentions.  Can I point out a couple of aspects that I am going to criticise when I take your Honours to Peet?  If your Honours go about three‑quarters of the way through paragraph [32], your Honours will see where Justice Fraser referred to Justice Gotterson’s observation that:

there was no justification for the implication of “a temporal correlation between the benefit of a development approval and the burden of its attendant conditions”.  That observation was referrable to the approval of a use of land which was in issue in that appeal.

I will seek to demonstrate shortly that that is incorrect.  The observation was more general and the approval in Peet Flagstone was not for a use of land; it was for operational works, which is quite a different thing.  Then Justice Fraser went on to refer to some other aspects of Justice Gotterson’s decision, and he quotes them, that the conditions:

“do not limit their currency to a period during which the vegetation clearing permitted by it is being carried out” and some of those conditions had “an ambulatory operation” –

He is there reading from paragraph [31] of Justice Gotterson’s decision, correctly, but what he is not acknowledging is that these were comments that Justice Gotterson added at the end of his substantial reasons and were not central to his reasoning.  So, if we go to Peet’s Case, to quickly take your Honours through the background, your Honours will see from paragraph [2], second line, that it was on 28 July 2011 that Peet Flagstone became the proprietor of the relevant land.  In paragraph [3], first line, that it was on 19 February 2008 that the relevant approval was granted, which your Honours can see was a development approval for operational works, and his Honour explained that:

The type of operational works for which the application was made was selective vegetation removal.

Then on page 3 in paragraph [4]:

During 2012 -

in other words, after Peet had acquired the land –

clearing of vegetation from the Land was undertaken.

Then, in paragraph [9] and [10], that:

Peet filed an originating application –

Reading from [10], that:

The declaration that was contentious was that persons clearing vegetation on the Land [in 2012] were not required to comply with the –

2008 approval.  At page 4 at the bottom of the page his Honour referred to section 3.5.28 of the Integrated Planning Act which the Court of Appeal here recognised was replicated in section 245.  Justice Gotterson on page 5 in paragraph [20] referred to section 245 in the third‑last line, and on page 6 in paragraph [26] identified two themes of argument advanced for Peet.  It is the first theme that is relevant to this matter, namely, that:

the conditions of the Development Approval terminated once vegetation clearing permitted by it had been carried out (and well before 30 April 2012).

Justice Gotterson dealt with that in the next paragraph and following.  Paragraphs [27] and [28] are the key paragraphs and they are of general application.  They identified that the basic thrust of the Peet argument was wrong in law.  It did not turn upon the particular terms of the operational works approval that the Council had granted in 2008.  These are propositions of a general nature which clash with what the Court of Appeal has said here, and in paragraph [29] at the top of page 7 his Honour made the general observation that:

the arguments underpinning the theme find no support in the authorities.

His Honour found it necessary to refer to only one, when Justice Keane of this Court was a member of the Court of Appeal, and it was after those substantive conclusions that in paragraph [31] his Honour went on to say that:

Discussion of this theme would be incomplete without acknowledgement that the terms in which the conditions of this Development Approval are expressed do not limit their currency –

et cetera.  So, what is said in paragraph [31] is seized upon by Justice Fraser in this case as really explaining the court’s reasoning in Peet, but we respectfully submit that that is an erroneous interpretation of the reasons in Peet and it warrants the intervention of this Court because otherwise you will have arguments of the kind that I am advancing to your Honours now being developed before the lower courts, whereas it is in the interests of justice that this Court pay attention – give its attention, I should say – to these matters.

Your Honours, in Wirkus – do your Honours have a copy of the decision in Wirkus?

KIEFEL CJ:   No, but I think you have quoted from it in your outline of argument.

MR GORE:   We have, your Honour, and we have cheekily pointed out that the paragraph that we quoted is not referred to by the Court of Appeal.  It is a central paragraph central to our argument.  It has not been addressed by the Court of Appeal.  May I give your Honours a copy of that decision?

KIEFEL CJ:   Yes.  I see the light though.  You have a red light, Mr Gore.

MR GORE:   I am sorry, your Honours, finally I need dispensation.  The material is set out in – may I briefly deal with this?

KIEFEL CJ:   Yes.

MR GORE:   There are two affidavits in the application book at pages 67 and 82.  May I paraphrase?  What happened was the judgment was given on Friday 23 December 2016.

KIEFEL CJ:   You need an extension of time.

MR GORE:   Yes.

KIEFEL CJ:   It is not opposed.  I do not think that is a difficulty.

MR GORE:   Thank you, your Honour.

KIEFEL CJ:   Extension is granted.  The Court will adjourn briefly to consider the course it will take.

AT 11.39 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.42 AM:

KIEFEL CJ:   There will be a grant of special leave in this matter.  Mr Gore, half day or one day do you think?

MR GORE:   I would think one day, your Honour.

KIEFEL CJ:   That is assuming a respondent to argue, I suppose, but we should proceed on that basis at least for the time being.

MR GORE:   Yes, your Honour.

KIEFEL CJ:   All right.  If there is no submissions put forward by the respondents, it may be necessary for the Court to convene a direction’s hearing but we will leave it until then.

MR GORE:   Thank you, your Honour. 

KIEFEL CJ:   Would you ensure that your solicitors obtain a copy of the directions for the filing of submissions in this matter from the Registrar?

MR GORE:   Yes, your Honour. 

KIEFEL CJ:   Thank you.  The Court will adjourn whilst a video link is connected to Perth.

AT 11:43 AM THE MATTER WAS CONCLUDED