Proctor v Brisbane City Council

[1993] QCA 440

IN THE COURT OF APPEAL

[1993] QCA 440

SUPREME COURT OF QUEENSLAND

Appeal No. 124 of 1993.

Brisbane
[Proctor v. Brisbane City Council]

BETWEEN

KEVIN JAMES PROCTOR

Appellant

- and -

BRISBANE CITY COUNCIL

Respondent

- and -

PIKE MIRLS McKNOULTY PTY LTD

First Respondent by

Election

- and -

KOBE BRISBANE TRADE & INVESTMENT

CORPORATION PTY LTD

Second Respondent by

Election

____________________________________________________________

_____

Pincus J.A.
Thomas J.

Mackenzie J.

____________________________________________________________

_____

Judgment delivered 03/11/93

Judgment of the Court
____________________________________________________________

_____

APPEAL DISMISSED WITH COSTS.
____________________________________________________________

_____

CATCHWORDS:	LOCAL GOVERNMENT - PLANNING & ENVIRONMENT - application for rezoning and subdivision of land - appellant required road access as a condition for granting the application - test to be applied under s. 6.1 Local Government (Planning & Environment) Act 1990 in deciding
whether a condition should be imposed when granting such an application.
Counsel:	Mr J E Gallagher Q.C. with him Mr E J Morzone for the appellant. Ms D A Mullins for the respondent Brisbane City Council. Mr D R Gore Q.C. with him Mr S M Ure for the respondents by election.
Solicitors:	Hill & Taylor for the appellant. Legal Services Branch, Brisbane City Council for the Brisbane City Council. King & Co. for the respondents by election.
Hearing Date:	19 October 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 124 of 1993.

Brisbane

Before Pincus J.A.
Thomas J.
Mackenzie J.

[Proctor v. Brisbane City Council]

BETWEEN

KEVIN JAMES PROCTOR

Appellant

- and -

BRISBANE CITY COUNCIL

Respondent

- and -

PIKE MIRLS McKNOULTY PTY LTD

First Respondent by

Election

- and -

KOBE BRISBANE TRADE & INVESTMENT

CORPORATION PTY LTD

Second Respondent by

Election

JUDGMENT OF THE COURT

Judgment delivered 03/11/93

This is an appeal from the Planning & Environment Court, in which it is argued that that Court ("the P & E Court") erred in law. The argument was in essence that the P & E Court applied a wrong test in determining to uphold a Brisbane City Council decision not to impose a condition favourable to the appellant objector.

The matter before the P & E Court was an appeal against the Council's decision on a combined application relating to land at The Gap. The application was to rezone the land, to subdivide it and for consent to erect on it certain dwellings and other facilities. The issue before the P & E Court was a narrow one, namely whether there should have been a condition of approval that road access be provided, for land owned by the appellant, across the subdivided lot (which will be referred to as Lot 111) to a road running along the western boundary of Lot 111. The appellant wished the subdivision to be so arranged that it would be possible to drive from his land, "Lot 1", which abuts Lot 111 on the east, to the road we have mentioned; that may conveniently be called Settlement Road, although in fact part of the road running past Lot 111 on the west is Kilbowie Street.

Apart from going across Lot 111, there were other possible means of access from Lot 1 to Settlement Road, as well as to another road, to the south of the appellant's land. We are not concerned, however, with the question whether as a practical matter it would have been reasonable to require the condition the appellant desired, so as to make possible, by appropriate changes in the layout of roads in the subdivision, access from Lot 1 across Lot 111 to Settlement Road . This Court's only relevant jurisdiction is to determine whether the P & E Court made a "error or mistake in law"; see s. 7.4(3) of the Local Government (Planning & Environment) Act 1990 ("the 1990 Act"). The argument advanced on behalf of the appellant was that the P & E Court rejected the appellant's argument in favour of imposition of the condition as to access across Lot 111 on grounds not being those mentioned in s. 6.1(1)(c) of the 1990 Act. The effect of that provision, with respect to an application of the kind in question, is that the local authority may not -

"subject its approval of that application to a condition that is not relevant or reasonably required in respect of the proposal to which the application relates, notwithstanding the provisions of a planning scheme".

To determine whether the appellant's complaint is made out, it is necessary to scrutinise the reasons given by the learned judge of the P & E Court and to read those reasons as a whole. We do not propose, however, to set them out in full, but will merely summarise, and quote as necessary.

Witnesses for the appellant, the judge's reasons say, swore in effect that the respondent Council should have, but had not, followed indications in a certain Council plan or diagram, Exhibit 29, and that doing so would have favoured the imposition of the condition in question. The judge held that Exhibit 29 had neither formal status nor approval by the respondent and, at least implicitly, her Honour rejected the argument that the condition should be imposed for the sake of conformity with Exhibit 29.

The Court referred to the evidence with respect to the "options for access to" the appellant's land and discussed the practicability of them. With respect to that, it is necessary to mention one only, namely the possibility of access via Lot 110; the judge held that :

"...Lot 110 is not for sale. There are no proposals to develop it. It is simply not possible to say if or when it may be developed".

The judge also briefly discussed evidence given against the appellant, setting out reasons why "the Appellant's suggested access through Lot 111 would not be acceptable". The Court did not accept that the considerations so put forward "are determinative of the issue of the access suggested by the Appellant". The reasons then continued:

"The relevant issue is whether the access nominated by the Respondent by Election, and proposed to be included in a condition of approval by the Respondent, is relevant or reasonably required by the proposed subdivision of the Respondent by Election".

The language used is based on that of s. 6.1(1)(c) quoted above. The Court referred to evidence of offers by the appellant, which had been rejected, to pay certain sums to encourage the provision of the access he desired, and then resumed discussion of the practical merits of the appellant's case, albeit rather briefly. The Court quoted passages from a decision in Mackay v. Brisbane City Council (1992) Q.P.L.R. 65, 67, of which only part need be set out here :

"In the light of these considerations, I am not prepared to hold that, beyond what is a clear case of sterilisation of land, approval of a development otherwise consistent with the relevant requirements of a Town Planning scheme should be withheld simply because it reduces the opportunity to develop adjoining land..."(At 68)

It must be said, in favour of the appellant, that if the Court held it necessary to show "a clear case of sterilisation" to justify imposing the condition in issue, the decision below could hardly stand.

It is desirable to quote the whole of the next four paragraphs of the reasons of the P & E Court.

"Senior Counsel for the Appellant submitted that neither the Respondent by Election nor the Respondent gave real consideration as to when the time for access via Lot 110 would occur so that access could be availed of by the owner of Lot 1 for residential development. I do not consider that as a matter of law they are obliged to do so, except to the extent of considering the possibility of land being sterilised or land- locked.

All witnesses agreed that Lot 1 is not landlocked.

Mr Challoner was concerned that it may not be

able to be developed at the earliest opportunity.

Lot 1 is not sterilised. It is presently being used for a purpose intended by its Residential "A" zoning.

Senior Counsel for the Appellant also submitted that the provision of access now through Lot 111 is to maximise the options available to access Lot 1. This may be true, but it is not the role of the Respondent to do this."

Counsel for the respondent did not argue that, if the judge should properly be read as having ultimately applied the test in the second sentence just quoted, beginning "I do not consider...", the decision could be upheld. That is, it was common ground before us that the P & E Court would have been wrong in confining its attention to the two criteria mentioned -sterilisation and landlocking - in determining whether to impose the condition; that point is further discussed below.

The Court then mentioned that there were other options available for access to Lot 1, identified them, and discussed the question of whether there was a public benefit in the imposition of the imposed conditions. The reasons concluded :

"I am not satisfied that the public benefit to be gained by the access road proposed by the Appellant is such as to make it a relevant or reasonably required condition of the proposed subdivision. Senior Counsel further submitted that there may be benefits not only for Mr Proctor but also for the future owners of the 7 potential lots on the northern part of Lot 1. However, these matters must be understood in the context of the relevant legal test, namely, is the proposed access relevant or reasonably required by the proposed subdivision.

I find that there is no, or no sufficient, nexus between the Appellant's proposed access through the subject land and the proposed subdivision of the Respondent by Election.

I am satisfied that the access nominated by the Respondent by Election and proposed to be approved by the Respondent is sufficient, and is a relevant or reasonably required condition of the proposed subdivision. I am not satisfied that the access proposed by the Appellant is a relevant or reasonably required condition of the proposed subdivision.

I dismiss the Appeal."

The question is whether the P & E Court has in truth applied the statutory test - "relevant or reasonably required" - or whether it has, as the appellant contended, failed to do so by reducing that to two points, namely sterilisation and landlocking. Counsel for the appellant submitted, as an alternative way of stating his proposition, that there was a failure on the part of the learned judge to confine the considerations taken into account to those which are legally relevant.

Before analysing the reasons given in the P & E Court further, it is desirable to make some reference to authority. The most important case is the decision of the High Court in Cardwell Shire Council v. King Ranch Australia Pty Ltd (1984) 58 A.L.J.R. 386. There the Court explained the proper construction of s. 33(16C) of the Local Government Act 1936 which made it unlawful for a local authority, in the case of an application such as the present :

"to subject the approval of that application to a condition that is not prescribed by the scheme or by by-law or reasonably required by the rezoning of the land, the opening of the new road, the subdivision of the land, the use of the land or the use or erection of the building or other structure in respect of which the application relates". (387)

It will be noted that the provision with which the
Court was concerned made no reference to relevance as a
separate test, and that point is further discussed below.
It appears to us unnecessary to explain the factual
background of the decision; its present importance is the
Court's view of the construction of the provision there
applied.

"The statutory test that has to be applied by a local authority in deciding whether to attach conditions to its approval in a case such as the present is whether the conditions are reasonably required by the subdivision. This means that the local authority, in deciding whether a condition is reasonably required by the subdivision, is entitled to take into account the fact of the subdivision and the changes that the subdivision is likely to produce - for example, in a case such as the present, the increased use of the road and of the bridge - and to impose such conditions as appear to be reasonably required in those circumstances." (388)

Although the High Court's decision is such as to encourage one to adopt a broad rather than pedantic construction of the expression "reasonably required" in this context, the facts here are such that it must have been difficult to persuade the learned primary judge that a condition that access for Lot 1 be provided across Lot 111 was "reasonably required" by the proposed rezoning, or the subdivision, or the erection of dwellings and other facilities. The development of Lot 111 as approved would neither create nor add to any access problem associated with Lot 1. The most one can say is that if the development with its proposed road plan were not approved, it might come to pass that other plans would be made for Lot 111 of such a kind as to allow access by road from Lot 1 to Settlement Road. That possibility does not justify the conclusion that the implementation of the approved development of Lot 111 would change matters so as to require the road access that the appellant desires.

Mr Gore argued for the respondents by election that the respondent should not, and the Court should not, impose the condition of access to Lot 1; he contended, on the basis of authorities such as Coulson v. Shoalhaven Shire Council (1974) 29 L.G.R.A. 166, that to do so would be beyond power.

In Coulson's case subdivision was approved subject to a condition that there be a right of way in favour of an adjoining allotment. The condition was declared invalid and the judge remarked :

"Planning principles involve public considerations, including the placing of restrictions on the rights of owners of land to use, enjoy, or even retain their land, in the interests of the community, and no doubt tree preservation and private access to public roads are matters involving public considerations; but to suggest that these considerations enable the alteration of rights of property as between private individuals, that they can be used to compel one owner to confer a private right of property on another, seems to me foreign altogether to the notion of the application of any town or country planning principles to matters of subdivision".

It appears that the implication that such a condition amounts to compelling one owner to confer a private right of property on another is erroneous, as may be seen from the discussion of a similar point in Lloyd v. Robinson (1962) 107 C.L.R. 142 at 154. There, the High Court examined the proposition that imposing as a condition of approval that a subdivider transfer 20 acres to the Crown free of cost for park and recreation purposes was a confiscation. That was rejected:

"If approval is obtained for the subdivision of one area of land by complying with a condition which requires the giving up of another area of land for purposes relevant to the subdivision of the first, it is a misuse of terms to say that there has been a confiscation of the second. For the giving up of the second a quid pro quo is received, namely the restored right to subdivide the first. It may be that the quid pro quo is inadequate, and that the landowner, though under no legal compulsion to give up the second area of land if he chooses to forego the idea of subdividing the first, is nevertheless under some real compulsion, in a practical sense, to submit to the loss of it because of the importance to him of obtaining the approval. But there is no room for reading the Act down in some fashion by appealing to a principle of construction that has to do with confiscation."

Neither Coulson nor any other authority which we have found provides reason to doubt the Council's power to impose such a condition as the appellant seeks. It would be advantageous to the owner of Lot 1 to have the access; the advantage is reflected in the appellant's offer to pay money towards the cost of provision of access. It may be said that if the desired access were provided, that would be a private advantage for the appellant arising out of subdivision, because no doubt the access could augment the value of his property, but the access would, it must be remembered, be a public, not a private road, and one which persons other than the appellant could use.

The judge recognised, at the beginning of the last section of her reasons, quoted above, that she should consider the extent of public benefit the access would provide. Her Honour having done so is one of the reasons which tend against the conclusion that the case was decided by reference to the tests of sterilisation and landlocking mentioned in the reasons. Other considerations pointing in the same direction are the judge's having treated as material the argument based on Exhibit 29 (mentioned above), as well as the practicability of alternate means of access and the willingness of the appellant to contribute towards the cost of the access. None of these matters are related merely to sterilisation or landlocking.

In favour of the appellant, it may be said that if the judge did not treat the two criteria, sterilisation and landlocking, as decisive, or at least important, it is puzzling that her Honour mentioned and dealt with them. If the Lot 111 development either sterilised Lot 1 or landlocked it - assuming one can ascribe a sufficiently precise meaning to those notions - then there would surely be a good case for imposing the condition in favour of Lot 1. But the obverse is not so, because an access condition not required to prevent sterilisation or landlocking might well still be good.

Nevertheless, it is our view that her Honour's digression into consideration of these matters does not vitiate her reasons. Reading her reasons fairly, one must conclude that her Honour kept in mind the terms of the statutory test and dealt with considerations relevant to it.

We would add that the matter was argued here on the basis that the interpretation of s. 33(16C) of the Local Government Act 1936 established in Cardwell Shire Council v. King Ranch Australia Pty Ltd (above) applies to the rather different wording of s. 6.1(1)(c) of the 1990 Act. The appellant was prepared to accept, as we understood the matter, that for the purposes of this case the presence of the words "relevant or", in the 1990 provision, could make no difference to the result. It was even suggested by counsel for the respondent that the words "relevant or" are surplusage; that seems to us improbable. It may be that a condition which is not reasonably required by the subdivision is nevertheless lawful, because relevant.

Support for this view may be found in the approach of the High Court in Lloyd v. Robinson (above) where the statute did not expressly require that a subdivisional condition be relevant. The High Court upheld an "open space" condition as being in the Court's opinion "well within the limits of a proper understanding of the Board's functions under the Act" and "entirely relevant to the application for approval". The Court also said:

"If it were correct the Board could never give an approval of a subdivision conditionally upon the applicant's giving up the land for any purpose, for roads, for public recreational areas, for foreshore reservation purposes, or for anything else, however relevant the condition might be to the observance of proper standards in local development."

It may well be that a condition which is in no proper sense of the word "required" by a subdivision is nevertheless relevant in the way indicated by the High Court, as falling within the proper limits of a local authority's functions under the Act, as imposed to maintain proper standards in local development or in some other legitimate sense. For example, a condition relating to the layout of the subdivisional roads may not be able to be supported as "required" - reasonably or otherwise - by the subdivision in question, but may be defensible as reasonably imposed in the interests of the rational development of the area in which the subdivision is located. We would not, without further argument, be prepared to accept that the broad notion of relevance as applied in Lloyd v. Robinson can have no application under s. 6.1(1)(c) of the 1990 Act.

Of course the mere fact that a condition is relevant to the proposed subdivision will not necessarily be sufficient to justify its imposition. The positive side of imposing conditions is dealt with by s. 5.1 of the Local Government (Planning and Environment) Act 1990, subs. (3) of which requires the local authority to assess many prescribed matters "to the extent they are relevant to the application". Section 5.1(6) grants the power to approve an application subject to conditions. Comparable provisions, dealing with planning scheme amendments, rezoning in stages and subdividing in stages respectively are found in ss. 4.4, 4.7 and 5.9 of that Act. The negative side is dealt with by s. 6.1 which forbids the imposition of conditions that are not relevant or reasonably required. In this context, the positive matters that are to be addressed under s. 5.1 assist in identifying the matters which may attract the imposition of conditions, but it is interesting to note that the category is not closed, and that the local authority is to assess "such other matters, having regard to the nature of the application, as are relevant" (s. 5.1(3)(u))." A condition may therefore go beyond the specific matters mentioned in s. 5.1(3), but it cannot be inconsistent with what may be seen to be the "terms or the plan or policy of the Act." (Coupe v. Mudgee Shire Council (1986) 7 N.S.W.L.R. 264, 266 per McHugh J.A.).

However, for the reasons we have given, we have concluded that the appellant has not demonstrated that the judgment below was founded upon or affected by legal error, and the appeal must therefore be dismissed with costs.