Summerland Plantations Pty Ltd v Brisbane City Council

[1995] QCA 474

IN THE COURT OF APPEAL	[1995] QCA 474
SUPREME COURT OF QUEENSLAND

Appeal No. 57 of 1994 Appeal No. 145 of 1994

Brisbane
[Summerland Plantations v. Brisbane City Council]

BETWEEN:

SUMMERLAND PLANTATIONS PTY LTD

(Appellant) Respondent

AND:

BRISBANE CITY COUNCIL

(Respondent) Appellant

McPherson JA
Pincus JA

Byrne J

Judgment delivered 27/10/1995

Judgment of the Court

Orders:

1.           That condition C(ak) included in the order of 20 July 1994 be excised.

2.           Otherwise, both appeals are dismissed.

3.           The appellant Council is to pay the respondent's costs of the appeals to be taxed.

CATCHWORDS: BUILDING CONTROL AND TOWN PLANNING - town planning - subdivision - approval by local authority - whether consent of Chief Executive of Department of Transport required - whether land contiguous to declared road - s.3.16 Transport Infrastructure (Roads) Act 1991, s.38(1)(b)(iii) Transport Infrastructure Act 1994 - s.20(1)(b) Acts Interpretation Act 1954.

LOCAL GOVERNMENT - town planning - subdivision - whether subdivision application in conflict with strategic plan - whether sufficient planning grounds to justify approval - s.5.1(6A) Local Government (Planning and Environment) Act 1990.

STATUTORY INTERPRETATION - repeal - whether refusal under repealed Transport Infrastructure (Roads) Act 1991 has continuing force - s.20(1)(b) Acts Interpretation Act 1954.

Counsel:	Mr P J Lyons Q.C. for appellant
Mr I D F Callinan Q.C. with him Mr C L Hughes for respondent
Mr J A Griffin Q.C. with him Mr J A M Innes for State of Queensland
Solicitors:	Director of Legal Services, Brisbane City Council for appellant Dowling & Dowling for respondent Crown Solicitor for the State of Queensland
Hearing date:	31 March 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 57 of 1994

Appeal No. 145 of 1994

Brisbane

Before McPherson JA
Pincus JA
Byrne J

[Summerland Plantations v. Brisbane City Council]

BETWEEN:

SUMMERLAND PLANTATIONS PTY LTD

(Appellant) Respondent

AND:

BRISBANE CITY COUNCIL

(Respondent) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27/10/1995

On 6 October 1993 Summerland Plantations Pty Ltd ("Summerland") applied to Brisbane City Council for approval to subdivide 77.82 ha of land at Pullenvale into 63 allotments. The Council's deemed refusal of the application led to an appeal to the Planning and Environment Court. On 7 March 1994 the judge announced that the appeal was allowed and that the subdivisional application "should be approved subject to" "a condition requiring any necessary compliance with s.3.16" of the Transport Infrastructure (Roads) Act 1991 ("the 1991 Act") and to other "standard subdivisional conditions".

Section 3.16 was included in Division 6 of Part 3 of the 1991 Act. The Division is headed "Dealing with Contiguous Lands Subject to Approval of Corporation". Section 3.16 has its own heading: "Local authority to approve subdivision of land contiguous with declared roads only with Corporation's approval". The "Corporation" is the Director-General of Transport (see s.1.5 of the 1991 Act), who has been restyled the Chief Executive. The section itself provides:

"(1) A local authority must not approve any plan of subdivision of land contiguous with ... any ... land in respect of which the Corporation has previously advised the local authority in writing that it is intended to become a declared road except with the prior written consent of the Corporation.

(2) The local authority may appeal in writing to the Minister where the Corporation has failed or refused to consent or imposed unreasonable requirements...".

Section 3.16 mattered because the Council had been notified in late November 1993 by the delegate of the Director-General, Department of Transport of a corridor "intended to be ... included into the declared road network" which passed through the land near its eastern boundary, and the Director-General had not consented to Summerland's proposal.

On 20 July 1994 formal orders were made disposing of Summerland's appeal. In the meantime, on 15 April, s.3.16 had been repealed by the Transport Infrastructure Act 1994 ("the 1994 Act"): see s.90 and Schedule 3. The Court's 20 July order recites that reasons were delivered on 7 March and records that "It is this day ordered that the ... appeal be allowed" and that the subdivisional application "be approved subject to" conditions attached to the order. Condition C(ak) obliged the Council to forward the subdivisional application with the Court's reasons to the Chief Executive of the Transport Department asking whether he required steps to be taken to comply with the 1991 Act or with the 1994 Act. Section 3.16 accounts for the reference to the 1991 Act. The reference to the 1994 Act is explained by s.38(1)(b)(iii) of that Act. If the Chief Executive has notified a local authority in writing that a road is intended to become a State-controlled road, and the local authority intends to approve a subdivision which would have a significant impact on the planning of that road, s.38(1)(b)(iii) requires the local authority to obtain the Chief Executive's approval. On 20 July 1994, presumably it was thought that the November 1993 notification still had significance. In fact, s.38(1)(b) was not germane. The Council had not been notified that the corridor was intended to become a State-controlled road, and the 1994 Act had not accorded any status to a notification of intent under the 1991 Act to make land a "declared road".

The Council instituted two appeals to this Court. The first is against "the determination" of 7 March; the other relates to the 20 July orders. The appeals were heard together. No point was taken about the competency of either appeal. And although only the first notice of appeal mentions s.3.16, it was not suggested that the Council must be confined to those grounds mentioned in the second notice.

The main point argued concerns s.3.16 of the 1991 Act. The Council contends that s.3.16 required the Planning and Environment Court to dismiss Summerland's appeal because, as Mr Lyons Q.C. put it, "there has been a determination under" s.3.16 "adverse to" Summerland "which remains effective" despite the section's repeal before the Court's formal approval of the subdivisional application. A letter to the Council from the Director-General's delegate in December 1993 is said to refuse consent to Summerland's proposal, and that refusal is said to have continuing force by virtue of s.20(1)(b) of the Acts Interpretation Act 1954 as something "done ... under" s.3.16.

The delegate's December 1993 letter is a response to what the letter itself calls the Council's "submission ... requesting comments" on the subdivision. The letter conveyed the Director-General's objection, adding an assertion to the effect that the proposal was inconsistent with the Department's intention eventually to construct an arterial road through the corridor. The Council's letter was not adduced in evidence and it is not clear that it sought consent to Summerland's proposal. If it was not such a request, perhaps the response should not be treated as a refusal to consent. That is by the way. The Council's contention, which effectively characterises the delegate's letter as an irrevocable refusal to consent to the subdivision, confronts a more formidable difficulty.

Section 3.16 attached consequences to a "consent" by the Chief Executive. In terms it did not accord significance to an objection to a subdivisional proposal, or even to an objection tantamount to a refusal to consent. It is therefore difficult to regard a refusal as a thing "done ... under" the 1991 Act. Section 118(1) of the 1994 Act supports this view. It provides:

"A consent ... of the Corporation in force under s.3.16 ... immediately before 15 April 1994 has effect, and is taken to have had effect, as if it were an approval ... by the chief executive under s.38(1) ... of this Act."

This section, an amendment to the 1994 Act introduced by the Transport Infrastructure Amendment Act (No 2) 1994, contains two indications that a refusal to consent to a subdivision affecting a "declared road" is not presently relevant. First, what is preserved is a consent, not a refusal. Secondly, the consent does not take effect in relation to "declared roads". Instead it operates as an approval under s.38(1), which concerns State-controlled and future State-controlled roads, and the planned corridor is neither of those.

It is necessary to observe that the reader of these reasons may find difficulty in locating s.118 of the 1994 Act, to which reference has been made. Its legislative history appears to be as follows. It first made an appearance as s.80A of the 1994 Act inserted by s.10 of Act No. 49 of 1994 - the Transport Infrastructure Amendment Act (No. 2) 1994 to which reference has just been made. Subsection 2 of that section said, "This section expires six months after it commences". Because the section commenced on 18 November 1994 (see Queensland Legislative Annotations Issue 6, p.889) it expired on 18 May 1995. It was still in force when this appeal was heard some weeks before that date, but it is no longer in force, nor is any reference to its erstwhile existence to be found in the current reprint. Despite the inaccessibility of this short-lived section it has, in the way which has been explained, an impact on the outcome of the case.

The contention that the refusal has continuing force by virtue of s.20(1)(b) of the Acts Interpretation Act fails. This makes it unnecessary to consider Summerland's submission that s.3.16 of the 1991 Act and s.38 of the 1994 Act, though they matter to decisions of a local authority, have no application to determinations of the Planning and Environment Court.

Then it is said that in approving the subdivision the judge erred in law by a failure to apply s.5.1(6A) of the Local Government (Planning and Environment) Act 1990, which provides:

"The local government must refuse to approve the application if -

(a)	the application conflicts with any relevant strategic plan ... ; and
(b)	there are not sufficient planning grounds to justify approving the application despite the conflict."

The Town Plan for the City of Brisbane includes a Strategic Plan which, according to cl.2.1 of the Town Plan, "is a statement of planning intent to achieve the goal of providing for the needs of the citizens of Brisbane within the broad content of its overall sphere of influence". An aim of the Strategic Plan is the "promotion of an urban structure characterised by high levels of mobility ...", and among its "objectives" are "relating land use to traffic and transportation systems to permit adequate mobility ...", and "making provision for improvements to the traffic and transport systems": cl.2.4. According to cl.2.4.4(b) of the Strategic Plan, cooperation with the State Government in relation to the siting of government services will be encouraged by giving support for "the development and improvement of road and transport systems". And by cl.2.4.5(a) of the Plan, land use is to be integrated with traffic and transportation systems "to permit adequate mobility and accessibility within the City by the appropriate location of ... transport corridors and residential areas in relation to each other".

The "Aims of the Plan" are also "reflected in the Structure Plan Maps": cl.2.1.
The Structure Plan is a "Strategic Plan" for the purposes of s.5.1(6A): see the

definition of "Strategic Plan" in s.1.4 of the Act. The intent of the Structure Plan is

described in cl.3.2 in this way:

"The Structure Plan is an outline plan or framework for the future development of the City and defines the areas in which future growth will take place.

The Structure Plan is not a cadastral document but a conceptual framework within which the statutory controls are intended to operate and against which development proposals will be assessed. The plan indicates the general distribution of land uses, activities and transport networks for the development of the City ...".

One of the "principal components" of the Structure Plan is concept 6 ("Provision of a comprehensive metropolitan open space system") which identifies as one of its important elements that "Proposed Roads represent those routes where it is intended that future major road systems be established". A Structure Plan map depicts the intended arterial road. But the indication is so broad that the road, which Mr Lyons acknowledged would be about 30 m wide near Summerland's property, could be constructed within the indicated area without entering the land. Mr Lyons, however, submits that any subdivision which might affect the road conflicts with cll.2.4.4(b) and 2.4.5 of the Strategic Plan.

As the road can be constructed through the indicated corridor without impinging on Summerland's property, the subdivision is not inconsistent with the "appropriate location of commercial centres, transport corridors and residential areas in relation to each other". Accordingly, it is not in conflict with cl.2.4.5(a) of the Strategic Plan. The proposal may be a little difficult to reconcile with the very general cl.2.4.4. And, because it envisages that allotments will be developed for purposes other than the indicated transport corridor, there may be a conflict between the application and a "Strategic Plan". However, it is unnecessary to consider these possibilities.

Although the judge did not mention s.5.1(6A), he made findings and remarks which are only consistent with an opinion that sufficient planning grounds existed to justify approving the subdivisional application despite any arguable conflict with a Strategic Plan. His Honour, whose reasons dealt with the Structure Plan, concluded that Summerland's proposal complied with all the many detailed requirements of the ordinances specifically relating to subdivision; that a subdivision designed to take the proposed arterial road into account would result in a decreased allotment yield and a less attractive subdivision; and that to require land to be allocated for the road which, as the judge found, "could be built in about 20 years or perhaps a little more but only time will tell" was not reasonable from a planning perspective.

The judge was not persuaded, nor did the evidence compel the conclusion, that "there are not sufficient planning grounds to justify approving the application despite" the arguable conflict between Summerland's proposal and the Strategic and Structure Plans. Section 5.1(6A) did not require refusal of the application.

There were criticisms of incidental remarks by the judge: for example, (i) his reference to a "right to", rather than a legitimate expectation of approval for, a subdivisional proposal which adequately addresses the matters listed in s.5.1(3) of the Act and satisfies the requirements of the ordinances; and (ii) views he expressed about the potential impact on compensation in the event of a resumption were Summerland required to subdivide in a manner facilitating a future acquisition for the road. These observations were not important and it serves no useful point to examine them. A few other issues were raised by the notices of appeal. They were not pursued and need not be considered.

Condition C(ak) should be excised, as Summerland sought by a notice of contention. The appeals should be dismissed. The appellant Council is to pay the respondent's costs of the appeals to be taxed.