Selpam Pty Ltd v Douglas Shire Council
[1997] QCA 72
•11/04/1997
| IN THE COURT OF APPEAL | [1997] QCA 072 |
| SUPREME COURT OF QUEENSLAND |
Appeal No. 2514 of 1996
Brisbane
| Before | Fitzgerald P. Davies J.A. Ambrose J. |
[Selpam P/L v. Douglas Shire Council]
BETWEEN:
SELPAM PTY LTD A.C.N. 008 411 710
(Applicant) Appellant
AND:
THE COUNCIL OF THE SHIRE OF DOUGLAS
(Respondent) Respondent
JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.
Judgment delivered 11 April 1997
The single issue on this appeal is whether a Permit to Subdivide Land No. 414, which was issued to the
appellant by the respondent Council under cover of a letter dated 7 August 1990 which described the
Permit as a “preliminary approval”, has lapsed. It is common ground that the Permit would have lapsed
had it been issued under s. 34 of the Local Government Act 1936 and Ch. 36 of the Council by-laws,
“Subdivision of Land”, by virtue of cll. 10 and 19 of Ch. 36, which required that certain steps[1] be taken
[1] Construction and drainage of roads and execution of other works required by the approval or
within two years after notification of an approval to subdivide. It is also common ground that the subdivision involves a “group titles plan” within the meaning of the Building Units & Group Titles Act
1980. The appellant submits that Ch. 36 does not apply in relation to the Permit:
(i) by reason of that Act; and
(ii) because Ch. 36 does not extend to a subdivisional approval issued under that Act.
Chapter 36 is expressed in general terms which are appropriate to all subdivisions, and the appellant’s
argument was essentially grounded on the construction of the Building Units & Group Titles Act.
The subdivision of land outside Brisbane was generally controlled at the material time by the Local
Government Act, and, by sub-s. 34(1), land could not be subdivided except in accordance with that
Act. Where, as in the present matter, a subdivision involved the opening of a road, sub-ss. 34(6) and
(10) required an application to a local authority accompanied by plans and specifications and prohibited
the subdivision of the land until (i) the application, plans and specifications had been approved; (ii) roads
had been constructed and drained and any other necessary work had been carried out in accordance
with the requirements of the local authority or as prescribed by by-law;[2] (iii) a plan of the subdivision
[2] Subject to sub-s. 34(7), which provided for payment or security to pay the Council to execute the
containing the road had been signed by 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 [the Local Government] Act ... have been complied with” (sub-s.
34(6)(d)); (iv) 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” (sub-s. 34(6)(e)); etc.
By sub-s. 34(10), a local authority was authorised to grant an application for subdivision conditionally or unconditionally or to refuse it. Matters to be considered by a local authority in making its decision
and limits on its powers, including in respect of the conditions it might impose or the requirements it
might make under a by-law, were specified in sub-ss. 34(11) et seq. Various provisions involved by-
laws; for example, sub-s. 34(12G), which dealt with a minimum area for allotments. Other parts of s.
34 dealt with water supply and sewerage works, water, gas and electric mains and pipes, etc. Sub-
section 34(14) dealt with the dedication of roads contained in a subdivision, and sub-s. 34(15) provided
for appeals by persons dissatisfied with local authority decisions to the Local Government Court. While
it is unnecessary for present purposes to discuss s. 34 in more detail, it is evident from what has been
said that it contained extensive provisions which dealt with a variety of issues related to the subdivision
of land.
Reference has been made in the brief discussion of s. 34 above to local authority by-laws. A local
authority had wide by-law making powers under ss. 30 and 31 of the Local Government Act, with
further power given by other provisions including sub-s. 33(21); the latter power authorised by-laws
which were necessary or convenient to implement, and to provide for, regulate and control the
administration and execution of a town planning scheme, and included by-laws to regulate and control
the subdivision of land. By virtue of sub-s. 33(2C), which was inserted into the Local Government Act
by the Local Government Act and Another Act Amendment Act 1980, by-laws to implement, and to
provide for, regulate and control the administration and execution of a town planning scheme, whether
made before or after the commencement of the 1980 Act, formed part of the relevant town planning
scheme. Chapter 36 of the Council’s by-laws accordingly formed part of its town planning scheme.
By sub-s. 31(27) of the Local Government Act, a by-law approved by the Governor in Council and published in the Gazette had “the same force and effect as if enacted in [the Local Government] Act”.
It is not in dispute that Ch. 36 of the Council’s by-laws were made and had effect under the Local
Government Act.
The Building Units & Group Titles Act provided for new forms of subdivision;[3] in the case of a building
[3] The original legislation for this purpose was the Group Titles Act 1973.
by a “building units plan” as defined in sub-s. 7(1), and in the case of land by a “group titles plan”,
which, by the definition in the same sub-section:
“means a plan which -
(a) is described in the title or heading thereto as a group titles plan;
(b) shows the land comprised therein as being divided into lots and common property; and
(c) complies with the requirements of section 9,
...”
Sub-section 8(1) of the Building Units & Group Titles Act provides that land may be subdivided into
lots and common property by the registration of a plan in the manner provided by or under that Act, and
sub-s. 9(2) provides what is required in a group titles plan, which, by sub-s. 9(6), generally may not
contain more than 50 lots. Sub-section 9(7) provides:
“(7) Every plan lodged for registration shall be endorsed with or be accompanied by a certificate of the local authority sealed with the common seal of the local authority that the proposed subdivision of the parcel as illustrated in the plan has been approved by the local authority and that all the requirements of the Local Government Act 1936- 1979 as modified by this Act have been complied with in regard to the subdivision.”
By sub-s. 7(4), the reference to the Local Government Act “includes a reference to any town planning
scheme approved pursuant [to the Local Government Act] that is applicable in relation to” the land
being subdivided. Sub-section 7(1) defines a “town planning scheme” to mean “a town planning scheme
approved, and as amended from time to time, pursuant to the Local Government Act ...”.
Pausing there, in our opinion “the requirements of the Local Government Act [including the Council’s
town planning scheme] as modified by [the Building Units & Group Titles] Act” involved compliance
with cll. 9 and 10 of Ch. 36 of the Council’s by-laws which, as stated above, formed part of the
Council’s town planning scheme. Once the period of two years after notification of Permit to Subdivide
Land No. 414 had elapsed, a certificate could not be issued in respect of the proposed subdivision
under sub-s. 9(7) of the Building Units & Group Titles Act unless contrary provision is to be found
elsewhere in that Act.
Sections 8 and 9 are in Division 1 “Creation of Lots and Common Property” of Part II “Subdivision of
Land” of the Building Units & Group Titles Act. The only other part of that Act referred to in argument
was s. 24, which comprises Division 3 of Part II, and is as follows:
“Division 3 - Approval of Local Authority
24. Approval of subdivision. (1) The provisions relating to subdivision of land contained in the Local Government Act 1936-1979,[4] or any other Act, shall not apply to -[4] As noted earlier, by sub-s. 7(4), this includes the Council’s town planning scheme, including Ch.
(a) a subdivision of land into lots effected by the registration of a building units plan; or
(b) a resubdivision of lots or common property or lots and common property effected by the registration of a building units plan of resubdivision:
Provided always that the boundaries of the parcel correspond with boundaries of a lawful subdivision within the meaning of the Local Government Act 1936-1979. (2) Subject to this section, the local authority may direct the issue of a certificate for the purposes of section 9 (7) in relation to -
(a) a subdivision of land into lots effected by the registration of a group titles plan; or
(b) a resubdivision of lots or common property or lots and common property effected by the registration of a group titles plan of resubdivision,
notwithstanding that it does not comply with the provisions relating to subdivision
contained in the Local Government Act 1936-1979.[5][5] See fn. 4.
To the extent to which the local authority, on application stating the specific provisions from which waiver is required and the reason therefor and having regard to all the circumstances of the case, considers that waiver of compliance with those provisions is warranted, the local authority is hereby authorized to waive such compliance, but the boundaries of the parcel shall correspond with the boundaries of a lawful subdivision within the meaning of the Local Government Act 1936-1979.[6](3) The power of a local authority to make ordinances or by-laws, as the case may be, shall include power to make all such ordinances or by-laws not inconsistent with this Act as may be necessary or convenient to regulate and control subdivision undertaken by the registration of group titles plan pursuant to the provisions of this Act (including but without limiting the generality hereof matters to which sections 22 and 25 relate).[7](4) In respect of an application for a certificate for the purposes of section 9 (7) the local authority shall, subject to subsection (5), direct the issue of the certificate if it is satisfied that -
[6] See fn. 4.
[7] It is common ground that no material by-laws have been made by the Council under this provision.
(a) the subdivision complies with the applicable provisions referred to in subsections (l), (2) and (3);
(b) separate occupation of the proposed lots will not contravene -
(i) the provisions of -
(A) the town planning scheme; or (B) a by-law made pursuant to section 33 (21) of the
Local Government Act 1936-1979;[8] or[8] See fn. 4.
(ii) the policies of the local authority in force -
(A)
in the case of a building units plan, at the date of the approval given by the local authority to the erection of the building; or
(B) in the case of a group titles plan, at the date of
lodgment of the application;(c) any consent or approval required under any such town planning scheme, ordinance or by-law has been given in relation to the separate occupation of the proposed lots;
(d) the proposed subdivision of the parcel into lots for separate occupation will not interfere with the existing or likely future amenity of the neighbourhood, having regard to the circumstances of the case, the public interest and the adequacy of access drives and parking areas within the common property.
(5)
(a)
Within 40 days (or such longer period as may be approved by the Minister for the time being charged with the administration of the Local Government Act 1936-1979[9]) after the date of receipt of the application in respect of a group titles plan for a certificate for the purposes of section 9(7), the local authority shall notify the applicant in writing of its decision to approve and the conditions imposed, if any, or refuse the application but the local authority shall not issue such a certificate until it is satisfied that any necessary works lawfully required by the conditions of approval are completed and any money lawfully required to be paid to the local authority is paid and that the applicant has entered into any necessary agreement with the local authority lawfully required and has furnished any security lawfully required by the ordinances or by-laws, as the case may be, of the local authority and that all other conditions of approval lawfully required have been complied with in every respect.
(b)
Where the application has been approved pursuant to paragraph (a) and the applicant has complied in every respect with the requirements of or pursuant to the ordinances or by-laws, as the case may be, of the local authority, the local authority shall within 14 days of notice being given to it of such compliance or, if the relevant plan is submitted to it at a later date, within 14 days of such later date, issue or endorse on the plan the certificate required for the purposes of section 9 (7).
[9] See fn. 4.
(6) An applicant for a certificate required for the purposes of section 9(7) who feels
aggrieved by -(a) the refusal of a local authority to direct the issue of the certificate;
(b) the failure of a local authority to -
(i) direct the issue of a certificate; or (ii) notify approval and conditions imposed (if any) pursuant to
subsection (5) (a),
within 40 days (or such longer period as may be approved by the Minister for the time being charged with the administration of the Local Government Act 1936-1979[10]) after the receipt by the local authority of the application for that certificate;
[10] See fn. 4.
(c) the conditions imposed by a local authority pursuant to subsection (5)(a); or
(d) the failure of a local authority to comply with the provisions of subsection (5) (b),
may appeal to The Local Government Court within the meaning of the City of Brisbane Town Planning Act 1964-1979 in accordance with the provisions of section 34 (15) of the Local Government Act 1936-1979 and the provisions of that section shall extend with such modifications as may be necessary to and in respect of such appeal.
(7) The decision of The Local Government Court upon any appeal under this Act shall be final and shall be binding upon the local authority and the appellant and for the purposes of this Act shall be deemed to be the final decision of the local authority.”
Sub-sections (1) and (2) of s. 24 are markedly different from each other. By the former, the provisions
of the Local Government Act and town planning schemes are generally inapplicable to the subdivision
of buildings by building units plans. Conversely, those provisions are applicable to the subdivision of
land by group titles plans, subject to the power of a local authority in most circumstances to waive
compliance and direct the issue of a certificate under sub-s. 9(7).
It is unnecessary in this matter to make further reference to building units plans. So far as group titles
plans are concerned, if the requirements of the Local Government Act and any material town planning
scheme have been complied with and other specified conditions have been met, then, subject to sub-s.
24(5), a local authority must issue a certificate under sub-s. 9(7); otherwise, as stated, it may generally do so, despite non-compliance, under sub-s. 24(2). While it is not clear why, having regard to sub-s.
7(4), sub-ss. 24(4)(b)(i) and (c) are necessary in addition to sub-s. 24(4)(a), or why sub-s.
24(4)(b)(i)(B) is necessary in addition to sub-s. 24(4)(b)(i)(A), the standard of drafting is not high, and
any overlap seems likely to result from an excess of caution on the part of the draftsperson. Read in
context, including sub-s. 24(2), sub-s. 24(4) seems to us consistent with what has been said in relation
to the operation of sub-s. 9(7) read in conjunction with sub-s. 7(4). Accordingly, in our opinion, sub-s.
24(4) is of no assistance to the appellant.
Sub-section 24(5) likewise is badly drafted in that it is expressed as though a two-stage process,
involving, as in this case, an initial application for a subdivisional approval and later an application for
a certificate under sub-s. 9(7), was encapsulated in a single stage initiated by an application for such a
certificate. There is little point in dwelling on the form of sub-s. 24(5); it plainly envisages both a
subdivisional approval and, later, a sub-s. 9(7) certificate. We cannot find any sufficient indication in
sub-s. 24(5) that “... the requirements of the Local Government Act”, including the Council’s town
planning scheme, are intended to be “modified” within the meaning of sub-s. 9(7) so as to exclude the
requirements of Ch. 36 of the Council’s by-laws.
Sub-sections 24(6) and (7) do involve modification of the Local Government Act, but not in any respect
which is presently material.
In summary, in our opinion, cll. 10 and 19 of Ch. 36 of the Council’s by-laws were applicable in respect of Permit to Subdivide Land No. 414. It was not contested that, if that is correct, the appeal must fail.[11]
[11] The material and argument before this Court did not refer to a possible waiver by the Council under
We would therefore dismiss the appeal, with costs to be taxed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 2514 of 1996
Brisbane
[Selpam P/L v. Douglas Shire Council]
BETWEEN:
SELPAM PTY LTD A.C.N. 008 411 710
(Applicant) Appellant
AND:
THE COUNCIL OF THE SHIRE OF DOUGLAS
(Respondent) Respondent Fitzgerald P.
Davies J.A.
Ambrose J.
Judgment delivered 11 April 1997
Joint reasons for judgment of Fitzgerald P. and Davies J.A.; separate reasons of Ambrose J.
APPEAL DISMISSED WITH COSTS TO BE TAXED.
CATCHWORDS: | BUILDING CONTROL AND TOWN PLANNING - Group title subdivision - whether approval of group title subdivision under Building Units and Group Titles Act subject to limitation period imposed by Local Government Act and local Council by-laws. |
| Counsel: | Mr P. Lyons Q.C. with him Mr W. Cochrane for the appellant. Mr D. Gore Q.C. with him Mr M. Hinson for the respondent. |
| Solicitors: | Marino & Smith for the appellant. Williams Graham & Carman for the respondent. |
| Hearing Date: | 5 November 1996 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 2514 of 1996
Brisbane
Before Fitzgerald P
Davies JA Ambrose J
[Selpam P/L v Douglas Shire Council]
BETWEEN:
SELPAM PTY LTD A.C.N. 008 411 710
(Applicant) Appellant
AND:
THE COUNCIL OF THE SHIRE OF DOUGLAS
(Respondent) Respondent
REASONS FOR JUDGMENT - B. W. AMBROSE J.
Judgment delivered 11 April 1997
This is an appeal against a declaration made in favour of the respondent that a preliminary
approval of an application for a group title subdivision given on 7 August 1990, lapsed by reason of the
appellant's failure to comply with time limits contained in cll.10 and 19 of Chapter 36 (Subdivision of
Land) of the respondent's By-Laws.
The appellant's application for approval of a group title subdivision dated 12 October 1989 was
received by the respondent on 16 October 1989. It was a formal application for a four stage group title
subdivision comprising 113 residential lots with areas varying between 0.5ha and 1ha (approx) seeking
a waiver of some of the minimum requirements of Chapter 36 By-Laws within the guidelines of current
council policy published with respect to group title subdivision. The content of the application seems
to meet the requirements of by-laws 2 and 3 of Chapter 36. The application was accompanied by a town planning report, various other technical reports, an overall plan of subdivision and a detailed plan
of subdivision for stage I of the proposed group title subdivision. The application was accompanied by
a cheque described as a "subdivision application fee". The fee was calculated on the basis of $250 per
metre of "public road" and $10 "per allotment" in respect of 113 group title residential lots, a commercial
lot and an area of common property. The residential density conformed with the requirements of
Chapter 36 for subdivision of land within the rural-residential zone in which the land was located
although the areas of the lots were smaller than the minimum areas specified for allotments in a
subdivision under s.34 of the Local Government Act - their reduction in size being reflected in the size
of the common property resulting from the proposed group title subdivision.
On 7 August 1990, the respondent advised the appellant that it had granted preliminary
approval of the application for subdivision subject to conditions listed in "Permit to subdivide land No.
414". Accompanying that permit to subdivide was the proposal plan initially submitted by the appellant
which had been endorsed with the respondent's preliminary approval given at a council meeting on 10
July 1990.
The appellant appealed to the Local Government Court against certain of the conditions of
approval imposed by the respondent.
On 27 October 1992, the Local Government Court made an order - apparently with the assent
of both appellant and respondent - varying certain of the conditions imposed and ordering that the
application to subdivide, be approved subject to the various conditions specified in the order.
It appears that no steps relevant to the matters canvassed upon this appeal were taken by or
on behalf of the appellant until, by letter dated 24 August 1995, its solicitors notified the solicitors for
the respondent that it proposed to proceed with the group title subdivision.
The respondent contended that by August 1995, a period in excess of two years had elapsed
since the preliminary approval in August 1990 and the making of the order by the Local Government
Court in October 1992 upon appeal, and pursuant to by-laws 10 and 19 of its subdivision of land by-
laws (Chapter 36) which were in force at those times, the approval had ceased to have effect.
It was upon this point that declaratory relief was sought in this court. A declaration was made
in favour of the respondent and it is against that declaration that this appeal is brought.
It is the contention of the appellant that the respondent's subdivisional by-laws - and in particular
by-laws 10 and 19 of Chapter 36 - did not apply to the appellant's application for permission to effect
a group title subdivision or to the preliminary approval given to it. The appellant contends that that
application was made pursuant to s.24 of the Building Units and Group Titles Act 1980 and that no
by-law made under that Act had the effect of by-laws 10 and 19 of Chapter 36 of the respondent's
subdivisional by-laws. It is contended that in the absence of such a by-law the preliminary approval
given by the respondent in 1990 did not expire by effluxion of time and the appellant is entitled to
subdivide the land in compliance with the terms of the permit given in 1990 at any time it chooses to do
so.
At the time approval was granted, and indeed at the time the Local Government Court made
an order varying the conditions of approval, subdivision of land generally was governed by s.34 of the
Local Government Act and a group title subdivision of land was governed by Division 1 of the
Building Units and Group Titles Act 1980.
For the purposes of this appeal, the following sections of the latter Act are relevant:
"s.8(1) - Land may be subdivided into lots and common property by the registration
of a plan in the manner provided by or under this Act.
...
(3) When a plan has been registered -
(a) each lot comprised therein may devolve or be transferred, leased,
mortgaged or otherwise dealt with; and
...
(b) ...
in the same manner and form as any other land held under the provisions of the Real
Property Acts.
...
(5) Upon registration of a plan ... the Registrar of Titles shall thereafter be authorised
to issue a separate certificate of title for each lot showing that the proprietor holds the
share of the common property appurtenant thereto in accordance with the lotentitlement set forth in the plan."
Section 9(2) then defines the requirements of a group titles plan.
Section 9(7) provides:
"(7) Every plan lodged for registration shall be endorsed with or be accompanied by a certificate of the local authority sealed with the common seal of the local authority that the proposed subdivision of the parcel as illustrated in the plan has been approved by the local authority and that all the requirements of the Local Government Act 1936- 1979 as modified by this Act have been complied with in regard to the subdivision."
Section 7(4) provides:
"(4) In this Act unless the contrary intention appears a reference to the Local Government Act 1936-1979 includes a reference to any town planning scheme approved pursuant thereto that is applicable in relation to the parcel in question."
Under s.7 of the Acts Interpretation Act 1954 a reference to an Act includes a reference to
a statutory instrument which under s.7 of the Statutory Instrument Act 1992 includes a by-law.
Section 9(12) provides:
"(12) Every group titles plan lodged for registration shall be endorsed with or be accompanied by a certificate of a licensed surveyor registered under the Surveyors Act 1977-1978 that the boundaries of the lots and of the common property shown on the group titles plan have been faithfully and truly surveyed, measured and marked on the ground and that the measurements and boundaries given in the plan are correct and comply with the standards of accuracy set forth in regulation 32 under the provisions of the Surveyors Regulations 1978."
At the time the respondent granted preliminary approval for the group title subdivision in 1990
and at the time also of the variation of the conditions imposed by the order of the Local Government
Court in October 1992, part of the respondent's by-laws were contained in Chapter 36 relating to
subdivision of land. By-law 10 provided:
"(10) It shall be a condition of approval of a proposal plan that the applicant shall within a period of two (2) years from the date of notification of approval (or approval subject to conditions) of the proposal plan, or such extended period as may be approved by the Council -
(a) Execute to the satisfaction of the Council and in accordance with the conditions of approval of the work of constructing and draining the roads involved in the proposal and any other works the execution of which is a condition of approval; or
(b) Subject to section 34(7) of the Act, (i.e. of the Local Government Act) pay to the Council such sum as may be agreed upon with the Council as the cost of executing such work, and agree with the Council as to when such work shall be executed by the Council; or
(c) Give to the Council security to its satisfaction that he will execute such work mentioned in subclause (b) of this By-law to its satisfaction within such time as may be fixed by Council."
By-law 19 then required submission to the respondent within two years after notification of
approval of an accurate plan of survey in accordance with the approved proposal plan suitable for
deposit in the Office of the Registrar of Titles. The by-law required that the council seal the plan of
survey if it conformed with the approved proposal plan with a power to make notations immaterial to
present consideration.
At all times material to the grant of approval and the variation of conditions of approval by the
Local Government Court, the respondent had a duly published policy relating to town planning and
subdivision directed specifically to group title subdivision. The policy related to minimum lot areas and
frontages, and minimum areas for common property within the subdivision. Clause 4 of the policy
provided:
"(4) Notwithstanding the above dimensions the total number of lots shall not exceed the total number of allotments that would be permissible if the parcel was subdivided in accordance with Chapter 36 of Council's By-laws."
Clause 5 provided (inter alia):
"(5) Council's requirements for the provision of services, drainage, public garden and recreation area and contribution rates as described in Chapter 36 of Council's By-laws and Council's 'Policy for Developer Contributions for Water supply and Sewerage services' shall apply in respect of all applications for Group Title Subdivision.
.......
Notwithstanding the above provisions, Council may dispense with or modify any or all of the above requirements where it determines that the particular circumstances warrant."
In a meeting held on 28 July 1988 the respondent resolved that the town planning application
fee for group title subdivisions be $181.50 plus $10 for each lot to be created with a maximum fee of
$5,000.
In my view a group title subdivision of land pursuant to s.8 of the Building Units and Group
Titles Act 1980 is clearly a subdivision of land for which the approval of the relevant local authority is
required. Chapter 36 of the respondent's by-laws, at the material time, was the subordinate legislation
regulating the extent and manner of exercise of the power to approve - subject however to the
modifying effect of the respondent's policy relating to group title subdivisions to which I have referred.
Section 24(2) permits a local authority to issue a certificate under s.9(7) of the Act
notwithstanding that the group titles plan does not comply with the provisions of its subdivisional by-laws
made under the Local Government Act.
The respondent in this case apparently did not make by-laws specifically to regulate and control
group title subdivision as it might have under s.24(3), although clearly enough it did make, formulate and
publish a policy to govern the exercise of its discretion to disregard the provisions of its subdivisional
by-laws which it was empowered to do under s.24(2). The policy to which I have referred was
presumably made under s.24(4)(d)(ii)(B).
It was contended strongly for the appellant that the application for preliminary approval of the
group title subdivision was really an application for a certificate under s.9(7) of the Act. It is quite clear
that the application for preliminary approval was made with a view ultimately to having the respondent
certify a duly prepared plan of survey for the group title subdivision. It is quite unhelpful in my view
when considering the point in contention to categorise the application made by the appellant in August
1988 as one made for the issue of a certificate under s.9(7).
Section 24(2) provides:
"(2) Subject to this section, the local authority may direct the issue of a certificate for
the purposes of section 9(7) in relation to -
(a) a subdivision of land into lots effected by the registration of a group titles
plan; or
(b)...
notwithstanding that it does not comply with the provisions relating to subdivision
contained in the Local Government Act 1936-1979."
Section 24(5) provides:
"(5)(a) Within forty (40) days ... after the date of receipt of the application in respect of a group titles plan for a certificate for the purposes of section 9(7), the local authority shall notify the applicant in writing of its decision to approve and the conditions imposed, if any, or refuse the application but the local authority shall not issue such a certificate until it is satisfied that any necessary works lawfully required by the conditions of approval are completed and any money lawfully required to be paid ... etc."
In my view in its plain terms, s.24(5) contemplates the receipt of an application for approval of
a group title subdivision; upon approval if the subdivision is to be effected the preparation of a group
titles plan conforming with s.9(12) will be required for certification pursuant to s.9(7).
The local authority must notify the applicant of its decision whether to approve with or without
conditions or to refuse.
If however it decides to approve as it may obviously do, it may not issue a certificate until it is
satisfied that all necessary works required by the conditions of approval and the payment of all moneys
required to be paid etc, have been paid and that any security required for the completion of
subdivisional works has been given.
Under s.5(b) where the application has been approved and the applicant has complied with all
the requirements, conditions etc, then the local authority within 14 days of notice of such compliance
or within 14 days of the submission of the relevant plan of survey, must endorse upon the plan the
certificate required under s.9(7).
It is only if the local authority refuses the application for approval or imposes conditions to which
the applicant objects, or if it simply does not respond to the application ("a deemed refusal" under
s.6(b)) that the applicant may appeal to the Local Government Court. The applicant may also appeal
to the Local Government Court against the failure of a local authority when so obliged to endorse a
certificate for the purpose of s.9(7) of the Act upon the plan of survey.
The decision of the Local Government Court upon any such appeal is deemed to be the final
decision of the local authority (s.24(7)).
Undoubtedly in my view the preliminary approval of the appellant's application for group title
subdivision given by the respondent under cover of its letter of 7 August 1990 in the terms of its
attached "Permit No. 414 to subdivide land" was a notification in writing "of its decision to approve" the
appellant's application (or "submission") made on 12 October 1989 and "the conditions imposed"
thereon within the contemplation of s.24(5)(a) of the Act.
Assuming that the appellant's application of October 1989 was indeed the first stage of an
application for a s.9(7) certificate, it is clear from the terms of s.24(5)(a) that the respondent was unable
to issue that certificate until all the works lawfully required by the conditions of approval had been completed, and all moneys paid and security given and agreements made with the local authority to
ensure compliance in every respect with those conditions.
I have dealt with this procedural aspect of the appellant's application only because so much
attention was given to it in the course of argument. Accepting that the appellant's application of October
1989 should be categorised as perhaps the first stage of an application for a certificate under s.9(7), the
second stage required that the appellant satisfy the local authority that all conditions of preliminary
approval had been complied with and all moneys paid and security given etc, to lead to the certification
of the plan of survey when produced so that it might be capable of registration. That analysis, to my
mind, gives no assistance in determining whether subject to the respondent's waiver of some of the
requirements of Chapter 36 of its subdivisional by-laws, those by-laws did generally apply to the
application to subdivide in this case.
There is nothing to suggest that the respondent in any way waived compliance with by-laws 10
and 19 of Chapter 36.
The extent to which the respondent did waive any requirement of its subdivisional by-laws may
be established simply by considering the detailed conditions of preliminary approval contained in "Permit
No. 414" (as modified by the Local Goverment Court) in the context of the express provisions of the
subdivisional by-laws, and its published policy relating to group title subdivision to which I have already
referred.
In my view there is no reason to conclude that the terms of the Building Units and Group
Titles Act 1980 manifest an intention that the respondent's ordinary subdivisional by-laws should not
apply to an application for approval of a subdivision of land under s.24 of that Act. Indeed the terms
of ss.24(1) and (2) of the Act in my view manifest a contrary intention.
In my judgment the declaration against which the appeal has been brought was correctly made. The respondent's written notification to the applicant on 7 August 1990 that it had granted
"preliminary approval subject to the conditions listed in the attached Permit to Subdivide Land No. 414"
was a notification in writing of its decision to approve within the meaning of s.24(5)(a) of the Act.
The order made by the Local Government Court on 27 October 1992 varying the conditions
of preliminary approval became the deemed decision of the respondent upon the appellant's application,
pursuant to s.24(7) of the Building Units and Group Titles Act.
Pursuant to by-law 10 of Chapter 36 it was a condition of the approval deemed to have been
given on 27 October 1992 that the appellant should within a period of two years of that time execute
to the satisfaction of the respondent and in accordance with the conditions of approval the works
required or pay to the respondent the agreed cost of the execution of such works by the respondent or
give to it security for the execution of such work within such time as it might fix.
The appellant was, in 1995, clearly in breach of the condition imposed upon the approval by
by-law 10 (and indeed of that imposed by by-law 19 requiring the timely submission of a certified plan
of survey).
By reason of the breach of those conditions the effect of the respondent's approval given in
August 1990 lapsed.
I agree that the appeal should be dismissed.
payment or security to the Council in respect of the agreed cost of executing the work, and submission to the Council of an accurate plan of survey of the approved subdivision suitable for registration by the Registrar of Titles.
works.
36 of its by-laws.
Although the appellant’s argument seemed, on occasions at least, to assert that sub-s. 24(3) of the Building Units & Group Titles Act was inconsistent with the continued operation of Ch. 36 of the Council’s by-laws in relation to subdivision by group titles plan, we can identify no foundation for such a conclusion.
sub-s. 24(2).
0
0
0