Rofail v Wells

[2011] QPEC 125

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Rofail & Ors v Wells [2011] QPEC 125

PARTIES:

MAGED ROFAIL, SABINA MANUELA ROFAIL & ROFAIL GRANDCHILDREN FUND PTY LTD
(Applicants)

v

AMANDA JANE SACRE WELLS
(Respondent)

FILE NO/S:

BD2213/2001

DIVISION:

Planning & Environment

PROCEEDING:

Originating Application and Application in a pending proceeding

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

6 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2011

JUDGE:

Dorney QC, DCJ

ORDERS:

It is ordered that:

1.   The applicant’s Amended Originating Application is dismissed.

2.   Both parties have leave to file, and serve on the other party, submissions (if any) in writing on the issue of costs, by 4pm on 13 October 2011.

CATCHWORDS:

Declarations and remedial enforcement orders – whether completed operational works under a development approval have any continuing operation, particularly after subsequent sale following subdivision registration – whether rights (in rem or in personam) arise against subsequent owner

Acts Interpretation Act 1954, s 14B
Environmental Planning and Assessment Act 1979 (NSW), s 123
Integrated Planning Act 1997
Land Title Act 1994, s 184
Local Government Act 2009
Sustainable Planning Act 2009, ss 235, 238, 243, 245, 347, 367, 375, 377, 456, 580, 601, 604, 606
Breskvar v Wall (1971) 126 CLR 376
Cumerlong Holdings Pty Ltd v Dalross Properties Pty Ltd& Ors [2011] HCA 27
Hawkins & Izzardv Peramarig Pty Ltd & Brisbane City Council(No. 3) [2001] QPELR 423
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 [appeal from (2002) 55 NSWLR 446]
Project Blue Sky v ABA (1998) 194 CLR 355
Stevens v Kabushki Kaisha Sony (2005) 224 CLR 193
Sushames v Pine Rivers Shire Council [2007] 1 Qd R 382

Indefeasibility and Council Consent Conditions (2005) 79 ALJ 143
Planning law v Property law: Overriding statutes and the Torrens system (2008) 25 EPLJ 82

COUNSEL:

R A Quirk for the applicant

S P Fynes-Clinton for the respondent

SOLICITORS:

Southside Property & Commercial Lawyers for the applicant

Canning Weil Lawyers for the respondent

Background

1. The respondent owns land situated at 7 Pontiac Street, Thornlands, Queensland, described as Lot 39 on SP201409 (“Lot 39”), on which is constructed a residential dwelling.  She purchased the house from its previous owner in 2010 and she and her husband live there as their principal place of residence.

1. In early 2011 the respondent caused to be built on Lot 39 a domestic swimming pool on the northern, rear boundary of that Lot.

1. Lot 39 was created as part of a subdivision approved in 2002, which subdivision work was carried out in stages by the applicants.   The stage which included Lot 39 was completed to the extent of enabling the Lot to be registered on 10 August 2007.  These works carried out were pursuant to an Operational Works Development Approval (for operational works associated with the subdivision) granted by the Redlands Shire Council on 16 February 2007 (“the DA”).

1. Part of those operational works included the installation of a roofwater drain along that northern boundary of Lot 39.  During the course of the swimming pool construction – for reasons unimportant to the present determination – the respondent relocated, and subsequently reconnected, part of that roofwater drain (being a part which was adjacent to the site of the swimming pool).  While the Operational Works Development Approval required a 225 mm pipe – which was constructed according to that requirement – the reconnection by the respondent involved a substitution for that pipe of two 150 mm pipes.

1. What the applicants now claim, pursuant to an Amended Originating Application, is a declaration, and consequential orders, essentially directed towards, first, the establishment of a development offence pursuant to s 580 of the Sustainable Planning Act 2009 (“SPA”) and, secondly, since the establishment of such an offence would enliven the power of this Court under s 604 of the SPA, the granting, amongst other things, of an enforcement order (in the nature of a mandatory injunction).  The respondent has, by Application in a pending proceeding, filed 20 July 2011, sought summary dismissal.  By orders made 22 July 2011, and filed 29 July 2011, all relevant disputed issues were set down for hearing (which proceeded before me on 26 September 2011).

Issues

1. I accept, as formulated by the applicants, that the issues (somewhat interrelated) in this application are:

(a)        did the alteration to the roofwater drainage pipe generate a requirement to request a change to the original DA;

(b)        is there any exception to such a requirement (if it exists);

(c)        was such alteration contrary to the Operational Works DA such as to constitute a development offence; and

(d)        if there is a development offence, what relief, or remedy, if any, should be granted?

Further Factual Matters

1. It was not put in contest that:

·     the original and relocated roofwater drainage (constituted, respectively, by the old pipe and the new pipes) was and is wholly within the respondent’s Lot 39;

· apart from any potential continuing effect of the Operational Works DA, the work concerning the relocation was “operational work” within the meaning of s 10 of the SPA;

·     there is no easement over Lot 39 concerning drainage (certainly not roofwater drainage), and there is no condition of a land use or subdivision approval that creates any form of statutory easement;

·     the works concerned with the Operational Works DA – whenever completed – were completed prior to the respondent’s purchase of Lot 39 in 2010;

·     it can be reasonably inferred that the roofwater drain along the northern boundary of Lot 39 was also designed to carry roofwater generated by other lots in a future stage of the overall subdivision for eventual connection to the Council’s drainage in Pontiac Street;

·     the Operational Works DA contains no condition of approval imposing any continuing obligation on Lot 39 which is any way even in the nature of a drainage easement;

·     the applicants’ interest is that they were the owners of the land adjoining the northern boundary of Lot 39 and are, therefore, potentially adversely affected by any relocation of the roofwater drainage on the northern boundary of Lot 39, as the vendor of such land having the benefit of the works done under the DA; and

·     the works the subject of the Operational Works DA were accepted as “off maintenance” on 18 May 2010.

1. Those conclusions must lead to the determination that – s 245 of the SPA, and its repercussions, apart – neither the SPA nor the Redlands Planning Scheme makes the “development” arising from such minor “operational work” other than exempt, pursuant to s 231(2) of the SPA and under Table of Assessment 4.24.5 for the Urban Residential Zone, and for the Urban Residential Zone generally, where it is only assessable development which requires a development permit:  see [12] of these Reasons.  Whether it “related” to the Operational Works DA is another matter; as is also whether that triggered the need for a request to change that DA.

Legislative Provisions

1. In the circumstances of this case, given that the works that were the subject of the Operational Works DA were not “off maintenance” until after the commencement of the SPA, that DA continued as a development approval under the SPA after its commencement on 18 December 2009: see s 801.

1. By s 245 of the SPA, a development approval both attaches to the land and is binding upon the then present owner of that land, as well as the owner’s successors in title.

1. The Operational Works DA, in the form of a development permit, was subject to conditions pursuant to s 243 of the SPA. There is no evidence that gainsays the conclusion that such conditions were fulfilled by 18 May 2010. Pursuant to ss 367 to 377 of the SPA, changes can be requested, and made, to a development approval, although such provisions can require an owner’s consent, an assessment by the Council and a decision to approve the request, with or without conditions (if it is not otherwise refused). But such change has to be a “permissible change” within the meaning of that term as it is defined in s 367.

1. Section 580 of the SPA makes it an offence for a person to contravene a development approval, including any condition in the approval. If the relocation of the rainwater drainage on the northern boundary of Lot 39 were to have been held to be assessable development, then it could only be authorised by a development permit: see ss 235(1) and 238 of the SPA.

1. Section 604 of the SPA empowers this Court to make “final” enforcement, remedial orders, upon, relevantly, being satisfied that an offence (e.g. against s 580) has been committed. Section 456 of the SPA has a potential application, empowering the making by this Court of declarations about construction of the provisions of the SPA, planning instruments and various guidelines [see paragraph (b) of subsection (1)] and the “lawfulness” of “development” [see paragraph (e) of subsection (1)].

Effect of s 245 of the SPA

1. There is, unfortunately for present purposes, no express guidance by any relevant authority of any kind which provides for an easy resolution of the question of the continuing effect of a development approval after all operational works have been completed and all conditions fulfilled.  For present purposes, it is common ground that all actual operational works and associated conditions under the DA were completed and fulfilled prior to the respondent’s purchase of Lot 39.

1. Considering the effect of the predecessor to s 245 of SPA [namely, s 3.5.28(1) of the Integrated Planning Act 1997 (“IPA”)] in Sushames v Pine Rivers Shire Council [2007] 1 Qd R 382, Keane JA, with whom both Williams JA and White J (as she then was) agreed with respect to this issue, stated that it may be accepted that the “registered” owner of the land will be the “beneficiary” of any approval obtained concerning that land: at 386 [20]. That case, though, involved a successor in title to the owner who had made the relevant application for approval and for which the successor sought the benefit.

1. Of passing interest is the decision by Brabazon QC DCJ in Hawkins & Izzardv Peramarig Pty Ltd & Brisbane City Council(No. 3) [2001] QPELR 423. There, he held, with respect to s 3.5.28 of the IPA, that the purpose of the section is to impose “liabilities” on “new” owners of the land: at 429.  This was in the context of the further determination that the imposition of such liabilities did “not necessarily” absolve former owners from liability, “especially if a development offence has been committed”, noting that this was particularly so where the land title passed to a new owner “before” the work required by the development approval was “completed” by the developer: also at 429.  Unfortunately, it helps little in cases where such work is “completed” by the time of the alleged offence. 

1. As raised by the respondent’s counsel, the effect of a provision such as s 245 of the SPA needs to be considered in light of the doctrine of infeasibility of title granted by s 184 of the Land Title Act 1994, particularly where, as here, there is no form of any easement of any kind.

1. The clash of the creation of statutory rights “in rem” with the effective operation of a system of Torrens Title was canvassed by the majority judgment of the High Court in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472. It must be noted, at the outset, that a provision such as s 245 of the SPA was not under consideration there. What was considered was a provision in the nature of s 604 of the SPA [namely, s 123 of the Environmental Planning and Assessment Act 1979 (NSW) (“EPAA”)]. As with s 604 of the SPA, that provision required the identification of a breach of a relevant Act.  What was a potentially identifiable breach was one of a part of another provision of the EPAA which stated that the relevant person must not carry out the development on land to which the provision of an environmental planning instrument applies unless “the development is carried out in accordance with the consent and the instrument”. On the evidence before it, the majority judgment held that there was no contravention of that provision: at 487-488 [43].

1. In Hillpalm the majority judgment clearly distinguished between a relevant development which was the use of the land and a relevant development which was a subdivision:  at, for instance, 489[49].

1. This distinguishing feature has been the subject of commentary by Peter Butt in Indefeasibility and Council Consent Conditions (2005) 79 ALJ 143. As suggested by him, consent conditions of the kind found in Hillpalm to exist (i.e. once-only subdivision conditions) could bind “only” the proprietor who carries out the development: at 144. He then concluded that, as a practical matter, purchasers need not fear unfulfilled consent conditions relating to subdivision, while expressing the view that they should still fear “unfulfilled” consent conditions relating to the continuing “use” of land: at 145. But, importantly, the author was not concerned with the effect of a provision such as s 245 of the SPA.

1. In a more extended consideration of Hillpalm, among other cases, Brendan Edgeworth in Planning law v Property law: Overriding statutes and the Torrens system (2008) 25 EPLJ 82 commented that a person who occupies land “consequent on” a subdivision and sale of a parcel of land, where a condition is expressed to attach to the implementation of the subdivision, cannot be considered to “carry out” that development as required by s 123 of the EPAA, concluding that the equivalent provision to s 604 of the SPA therefore offers further support for the conclusion that orders can only be made against the developer in such a case: at 96. Again, there was no concern with s 245 of the SPA.

1. While the recent High Court Decision of Cumerlong Holdings Pty Ltd v Dalross Properties Pty Ltd& Ors [2011] HCA 27 (3 August 2011) noted that it may be true – applying a passage, in the intermediate appeal, of Hodgson JA – that State planning legislation “is concerned with land as a topographical entity, indifferently to its proprietorship”, and that this may entail interference with private property rights (at [7]), it is clear from the majority in Hillpalm that, should rights “in rem” be identified from “relevant statutory provisions” (at 491 [54]), there would then be a real and lively question about how the two statutory schemes were to be reconciled, and questions of implied repeal or amendment might arise: at 491 [53]. In the Court of Appeal, following the above approved passage, Hodgson JA added that “there is a continuing contravention of a condition of a development consent for as long as the development continues and the condition is unfulfilled” (emphasis added): (2002) 55 NSWLR 446 at 449 [18]. Subject to the specific restrictions placed on that statement by the High Court’s conclusions, the emphasised part contains the germ of the notion of a limited time of application of the consent (or approval), embracing the idea of continuance only until fulfilment.

1. Unfortunately for present purposes, no bright line is derivable from a consideration of the mentioned authorities and commentaries concerning the consequences of a provision such as s 245 of the SPA.  On the face of the terminology used, it would appear that the Legislature may have “intended” to create rights that bound the actual land even if of Torrens Title.  Nevertheless, in the propositions advanced by Edgeworth, he insists that Hillpalm, and later decisions implementing it, suggest that Breskvar v Wall (1971) 126 CLR 376 – an important decision for considering the scope and effected of overriding statutes – reinforces the view that Torrens Title legislation is resistant to implied repeal: at 93.

1. It is unnecessary in this case to reach a final conclusion about whether s 245 does create rights in rem. This is because, whether it does or not, it is clear from Hillpalm that planning legislation will not be readily interpreted as interfering with private property rights of remote parties.  This notion must have the effect that, where there is no continuing condition, or term, as to “use” – or works – with respect to a development approval, the effect of any legislative provision dealing with such development approval after completion of its task is exhausted.

1. Consequently, where, as here, the relevant subdivision operational works and conditions attaching to them have been completed prior to the respondent’s “development”, it is unlikely, in the absence of a very clear legislative provision, that the development approval should be interpreted to have continuing effects. That is, even if the “new” development is somehow “related” to such completed operational works, the mere fact of relationship does not engage s 245 and thence the relevant contravention provision. It is helpful in resolving ambiguity or obscurity that the concept of “development”, introdued in the IPA and carried through to the SPA, has been the subject of an Explanatory Note: see ss 14B(1)(a) and 14B(3)(e) of the Acts Interpretation Act 1954. For the IPA the Note stated that development was defined to be an “action”, rather than the result of an action, exemplifying that concept by reference to the “carrying out” of the works. Furthermore, no real assistance is derived from either s 375 (dealing with disposal of a request for “permissible change”) or s 245(2) (removing doubt that a later development, including reconfiguring, if also approved, does not disapply the earlier approval). For the former, change must have a temporal dimension inapplicable subsequent to completion of, say, approved works, because the approval would have then expired (if it was not however the subject of continuing conditions) and because the notion of “off maintenance” must be given some practical meaning; and, for the latter, while in practice it might raise issues of completion, abandonment, inconsistency and the like [see Legal Online (Thompson Reuters) (p.2) (considering s 3.5.28(2)) of the IPA], it, if anything, demonstrates that like matters can exist in parallel, each governed by its own regime, provided they both continue to exist.  In the end, harmonious goals, {per Project Blue Sky v ABA (1998) 194 CLR 355 at 381-382 [70]} can be achieved between all those relevant provisions without straining their meanings, avoiding the end of providing eternal time lines for their application despite exhaustion of their content. Finally, s 347(1)(a) of the SPA is of little assistance either.  In the present circumstances, there would not be two extant, inconsistent obligations.

Effect of s 580 of the SPA

1. In order to “contravene” the development approval (including any condition in the approval), it seems clear that the person must be subjected to the terms of the development approval.  Since this has criminal law consequences, a careful approach to interpretation is justifiable.  As remarked by the majority in Stevens v Kabushki Kaisha Sony (2005) 224 CLR 193, an appreciation of the “heavy hand that may be brought down by the criminal law” suggests the “need for caution” in accepting any loose, albeit “practical”, construction: at 210-211 [45].

1. It is easy enough to understand the logical conclusion that, insofar as s 245 of the SPA applies to the “person”, when a development approval still has relevant continuing effect s 580 can be engaged: but the contrary proposition must also be true (namely, that if the identified “person” is not the subject of the application of s 245 of the SPA, then s 580 has no capacity for engagement concerning that person).

General Conclusions

1. The mere consequence that a deficiency might be identified in the legislation if it were not to cover a “change” to what had been the result of the development approval after all operational works had been completed and associated conditions fulfilled does not mean that the deficiency leads to a conclusion of the practical necessity for a wide interpretative effect.  As contended for by the respondent, it was always possible, by the formulation of either continuing conditions on behalf of the Council when giving its development approval or by the Council, or the developer, causing the creation of relevant (protective) easements, to address the concerns that are otherwise identified as a possible deficiency in the legislation.  Additionally, in the postulated circumstance of a developer, after “completion”, changing, say, the position of roofwater drainage, it is arguable that such “operational work” would be assessable because it would change the subdivision works “layout”.  As the respondent contends, if that is not the consequence, remedies still lie in the hands of local authorities by amendments to planning schemes and by temporary local planning instruments, if not by the exercise of powers under “drainage” provisions such as are provided in the Local Government Act 2009 (see Division 2 of Part 3 of Chapter 3) (or, failing that, install its own drainage using its powers and then require individual property owners to connect).

1. Important to the determination of any contravention is what the development approval was for. It is incontestable that the DA was for operational works associated with the “subdivision”. That subdivision having occurred, the title to the land having passed to a new owner, the work required by the development approval having been completed before that transfer, and associated conditions having been fulfilled, must all mean that it is now difficult, if not impossible, to see how s 245 and, therefore, s 580 of the SPA can impose any liability on any such new owner: see, helpfully, the obiter remarks of Brabazon QC DCJ in Hawkins & Izzard v Permarig Pty Ltd & Brisbane City Council (No. 3) [2001] QPELR 423 at 429.

Enforcement Orders

1. As considered in the legislative provisions examined earlier, the enforcement provisions are contained in, relevantly, ss 601 to 606 of the SPA.

1. Given that s 604(1)(a) conditions the exercise of the power to make an enforcement order on the court being satisfied that an offence has been committed, in the absence of the establishment of an offence against, for instance, s 580, these provisions cannot have effect. That obviates any consideration of the difficult question of how any such orders could be formulated in these circumstances. Undoubtedly, the necessity for further evidence (which was foreshadowed should these preliminary issues have been determined otherwise) would have arisen.

Effect of s 456 of the SPA

1. Section 456, dealing as it does with the power of the Court to make declarations, is also not engaged if there is nothing to which s 456(1) has application. The notions of unlawfulness and contravention have coalesced in this case.

1. Consequently, it is unnecessary to consider this declaratory power further.

Orders

1. Since I have concluded that the applicant cannot establish a basis for seeking the relief pursuant to the SPA that they have claimed, their application must be dismissed.  That obviates any need to consider summary dismissal as a separate issue.  Also, there is no further need for any additional hearing, because all issues have been dealt with.

1. Accordingly, I intend to make an order that the amended originating application filed 21 September 2011 is dismissed.

Costs

1. As the respondent has vigorously foreshadowed, there may well be cost consequences from this outcome.  Indeed, costs were reserved for the hearing on 22 July 2011.

1. Hence, in order to enable both parties to file submissions as to costs, if any, that should be awarded, I will give both parties seven days in which to file and serve submissions concerning costs.