Sunland Group Limited & Anor v Gold Coast City Council

[2021] HCATrans 124

[2021] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B64 of 2020

B e t w e e n -

SUNLAND GROUP LIMITED ACN 063 429 532

First Appellant

SUNLAND DEVELOPMENTS NO 22 ACN 164 903 011

Second Appellant

and

GOLD COAST CITY COUNCIL

Respondent

KIEFEL CJ
KEANE J
GORDON J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, MELBOURNE AND SYDNEY

ON THURSDAY, 5 AUGUST 2021, AT 10.00 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the usual practice in remote hearings, I will announce the appearances.

MR S.L. DOYLE, QC appears with MR S.J. WEBSTER and MR C.M. DOYLE for the appellants.  (instructed by Holding Redlich Lawyers)

MR G.J. GIBSON, QC appears with MR M.J. BATTY and MR A.G. PSALTIS for the respondent.  (instructed by Hopgood Ganim Lawyers)

GLEESON J:   At the outset, can I indicate that I cannot see Mr Gibson.

KIEFEL CJ:   You are quite right, neither can we.  We do not have a picture.  We will have to adjourn until we can establish communication.  The Court will adjourn until that is corrected.

AT 10.01 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.13 AM:

KIEFEL CJ:   Yes, Mr Doyle.

MR DOYLE:   Thank you, your Honours.  I was proposing, if I may just start again, as I was hoping to take a different approach to last time, but I will be brief in my introduction.

KIEFEL CJ:   Yes.

MR DOYLE:   The appeal concerns, as you know, the effect to be given to a number of conditions of the planning approval, which was rather perceived by the respondent Council to be the predecessor in title of my clients, the appellants.  The conditions concerned the contributions to be paid to various forms of infrastructure, the services to be provided with the land.  If your Honours go in the core appeal book to page 8, in the reasons of the primary judge, you should see the various conditions.  They are all pretty much the same. 

For various reasons the parties referred to – it is condition 13 in their submissions.  I will probably refer to it and to 15.  There is no point of distinction between them, except you will note in respect of both 15 and 16, the last paragraph of each contemplates some credits to be allowed against the contributions towards infrastructure. 

The particular planning approval here was a preliminary approval granted subject to those conditions in 2007 under the Integrated Planning Act.  The statutory regime has been changed a number of times since then.  There has been no explicit statutory abrogation of the effect of those conditions and, indeed, transitional provisions have operated to preserve the preliminary approval and its conditions.  

The various statutes, including the Integrated Planning Act, have provided for development approvals of two kinds.  This one, a preliminary approval which approves development but does not authorise it to commence, so for example which is the case here, for a development which is proposed to be in accordance with the master plan in stages over a long time, that can be approved, and the provisions of the planning scheme which would otherwise apply to that master plan can be varied.  The second kind of development approval was a development permit which is needed to allow for particular use to commence.  Both are described as development approvals and both can be issued subject to conditions. 

It is the appellants’ case that, properly construed, the conditions of the preliminary approval are operative and binding and take effect, albeit conditionally, as we will come back to. 

KIEFEL CJ:   Mr Doyle, what is the statutory provision which enables the Council to condition a preliminary approval to infrastructure contributions?

MR DOYLE:   Under IPA in which it was made?

KIEFEL CJ:   Yes, under the Integrated Planning Act.

MR DOYLE:   Yes, your Honour.  In volume 1 of the book of authorities ‑ ‑ ‑

KIEFEL CJ:   I think you can take it most of us are working from pamphlets, so if you just say the section number.

MR DOYLE:   Section 6.1.31.

KIEFEL CJ:   Section 6.1.2?

MR DOYLE:   No, 6.1.31.  In the pamphlet copy it is probably page 426.

GORDON J:   Is that section (2)(c) that you rely upon?

MR DOYLE:   Yes, your Honour.

GORDON J:   Thank you.

MR DOYLE:   I will come back to that particular section later on.

GLEESON J:   Mr Doyle, am I correct to read 6.1.31(2)(c) as permitting or empowering the imposition of a…..“under a policy or provision mentioned in subsection (1)(b)”?

MR DOYLE:   Yes, your Honour.

GLEESON J:   Thank you.

MR DOYLE:   There is no debate that that is applicable here, and that that was the power which was at least purported to be engaged when the condition was imposed on the preliminary approval. 

GLEESON J:   Yes.  So, at some stage will you assist us to understand how the relevant conditions were conditions imposed under a relevant policy?

MR DOYLE:   I shall, your Honour.  The policies themselves are referred to in the conditions as the thing which is the basis for the determination and calculation of the sum to be paid.  I will take you to one of – we have included in the material two copies of the policies.  I will probably only take you to one because they are materially the same, but I will do that subsequently, if I may.

But again, whilst I will do that, there is no issue between the parties that that is the case, that the section was at least professed to be engaged.  Whether it was done so effectively or not is a matter of debate between us.  But as I say, the proposition we contend for is that these conditions operate in a binding, albeit conditionally – and I will come back to what those conditions might be in a moment – without the need for a second set of conditions imposing infrastructure contributions in the development permit – are not really the key issue, at least on the basis of the reasoning of the Court of Appeal.

The Court of Appeal came to a different conclusion, which we apprehend the respondents support, but for somewhat divergent reasons.  The Court of Appeal refers to the preliminary approval as a framework for the assessment of a future application for a development permit, and conclude that for any obligation to arise, there must be a condition imposed at the permit phase and it would be those conditions, if they were imposed, which would be the source of the obligation to pay, and not the conditions of the preliminary approval.

The respondent, as we say, we think supports that contention but also urges this proposition.  It advances the notion that the preliminary approval serves the function of being a framework for the assessment of a future application for a development permit but in this case it urges that the conditions of this preliminary approval are too uncertain to operate as the source of any obligation. 

Now, if either of those two is right, it is a difficulty for the appellants because the capacity to now impose a fresh set of conditions in a development permit has been lost by various amendments to the statutes and been lost since about 2011.

Can we start with very briefly saying something about the notion of the framework?  The description of the preliminary approval as a framework is at that level of generality not controversial.  It provides a framework for the assessment of a future development permit application and it also provides conditions which themselves provide a framework for what is to be done in various respects should a development permit be granted - things such as the staking of the performance of works, traffic access, bike paths and many other functional things which your Honours will have seen looking at the form of the conditions to the preliminary approval. 

So, the competing approaches are a part, only in this respect, not on the question of whether these conditions function as part of a framework but rather how they function.  The appellants say they define the obligation which is to operate upon some future contingency.  The respondent contends they do not function at all because they are too uncertain and the Court of Appeal construes them as being of no effect at all unless and until a second set of conditions is imposed and as I have said, that cannot now occur.

KIEFEL CJ:   There might be another way of describing them, Mr Doyle.  That might be that they are not, in fact, conditions but simply notifications of what is going to occur at a later stage at the point when an application for development permit is made.

MR DOYLE:   That is probably, in substance – sorry, I withdraw that – that was what the respondents at one stage advanced and possibly still do, your Honour.  It is perhaps another way of describing what the Court of Appeal’s reasoning suggests that they are notifications of something.  I will come back to this, of course.  If they are, they have no statutory foundation.  There is no statutory basis for treating them as such and unless there is something which locks them in, which makes them binding in some way, they do not fulfil the very practical function which obtaining a preliminary approval is meant to fulfil of providing the developer with some degree of certainty as to what its obligations will be.

KIEFEL CJ:   What does not seem to be discussed in any of the judgments below is the practical question of how far matters can be the subject of certainty and conditions at the point of preliminary approval.  If one takes it as a framework - approval in principle or a framework of approval of development more generally, surely it would not usually be in practice until the stage of development permit that most of the infrastructure contributions could really be assessed because you would not have the detail of the development, would you, to enable the contributions to be properly calculated?

MR DOYLE:   We do not, in a sense, disagree with that, your Honour.  The conditions provide the means of determining the size of contribution.  In a way I will come back to they identify when it is to apply.  They provide a reference to the policy pursuant to which they are to be calculated which in each case is by reference to what are called equivalent terms.  So that the variables are identified in the policies and by force of them, the conditions. 

How those variables apply – that is how many equivalent tenements there are to be in any particular component of the development as it rolls out, needs to be ascertained.  That is one of the reasons I will come back to, to explain why upon the proper construction of these conditions the reference to “apply at the time of making the application” means at the time of the determination of the application for the development permit so that when an application was made for a development permit one will be able to identify what are the variables because one will be able to identify the equivalent tenements, and then to identify what the contribution is to be made in respect of these various kinds of infrastructure contribution.  All of the factors that need to be identified are defined in these conditions. 

STEWARD J:   Mr Doyle, can I ask you a question?  If this matter had proceeded to have granted a planning permit under the original Act – I know that did not happen, but let us just say that it did – would you have expected to see a repeat of the infrastructure contribution conditions in the purpose, or not see them at all, or what?

MR DOYLE:   Your Honour asks me – I will answer it in two ways.  As to what might have happened, it could have been that they were repeated, although if the case put against us is right, that would not be good enough – there would need to be some difference because if it said these are too uncertain there is no point in repeating.  But the statutory regime does not require them to be repeated because under the Integrated Planning Act the conditions that are imposed at the preliminary approval stage are themselves operable as conditions of the development permit. 

If we can ask you to go to the Integrated Planning Act, section 3.1.5 in the pamphlet copy, probably page 154 in the joint book of authorities at page 72 and, relevantly, your Honours will see in subsection (3):

A development permit authorises assessable development to occur–

. . . 

(b)subject to –

(i)the conditions in the permit; and

(ii)any preliminary approval relating to the development the permit authorises, including any conditions -

So that the statutory regime under which this preliminary approval was granted contemplated that its conditions would be conditions of the development permit when issued. 

KIEFEL CJ:   But the conditions spoken of are surely the conditions which the developer must fulfil, not which the Council must fulfil. 

MR DOYLE:   That is so.  That is so. 

KIEFEL CJ:   Well, your argument must be that the Council bound itself to apply the PSPs when it came to a development permit, and to calculate accordingly. 

MR DOYLE:   It is not able, because of another provision, to impose a condition which is inconsistent with the conditions of the preliminary approval.  So that if this is all taken ‑ ‑ ‑

KIEFEL CJ:   Then I suppose a real question is whether or not it is in truth a condition, if a condition is something that a developer fulfils and not the council – for the purpose of the development permit.

MR DOYLE:   Your Honour, the power to impose a condition is in the section I took you to initially at page 426 of the pamphlet, section 6.1.31.  In section 6.1.31(2)(c), relevantly:

For deciding the aspect of an application . . . –

(c)the local government may impose a condition . . . requiring land, works or a contribution towards the cost –

The statutory regime contemplates that the thing which will be the exercise of the power to impose a condition relevant to this matter is one which will require a contribution by somebody towards the cost of supplying infrastructure.  So that for the purposes of IPA and indeed all of these statutes, to be a condition, relevantly, is to require someone else to do something.  If you look at, as I am sure your Honours have, the conditions of this preliminary approval, they almost all, if not all, require the developer to do something.

GORDON J:   But do they require the developer to do something at a particular point in time that can be ascertained with sufficient certainty, is the question.

MR DOYLE:   Yes, your Honour.

GORDON J:   So, where you have a condition which says that:

Contributions shall be calculated at rates current at due date of payment -

and one cannot work out what the due date of payment is, do we not have a difficulty?

MR DOYLE:   Yes, that is the case that is put against us.  But as I hope to show you, that is a question of construction of the condition.

GORDON J:   Well, one of the ways of asking it is to actually look at the statutory power you have taken us to, and consistent with the King Gee line of authorities, ask yourself whether or not inherent in that power there is some certainty required.  When you look at it, given it is an imposition of a contribution cost, or a cost of contribution to infrastructure, the question is whether or not it is certain. 

MR DOYLE:   The question we would urge is whether it is the proper exercise of the power that I have just taken you to.  Does it require the payment of a contribution towards the cost of infrastructure? 

GLEESON J:   Or does it require a contribution under a policy?

MR DOYLE:   Under a policy, that is so.  Now, if your Honours would go back to the core bundle to page 8 – I will look at condition 15 for this purpose if I may, but probably not a lot turns on it.  Contributions towards a particular form of infrastructure we are told:

shall apply at the time application is made for a Development Permit.

Now, there is a matter of construction as to what that means.  It can either mean at the time the application was lodged or at the time the application is assessed and considered for approval, that is, at the time it is determined by the issue of the development permit - that is, the process of making the application rather than the mere initiation by lodgement. 

Now, as I may come back to, there are a number of internal factors which suggest it is the latter, and the Court of Appeal concluded it could not be the former.  It could not be the date of actual filing with the Council the application because of an inherent unfairness to the developer to pay all this money on the basis of what it was asking for the number of equivalent tenements of the proposed that it was asking for, as distinct from what it was given.  So initially that unfairness suggests that is not the right construction. 

In the policies themselves which I will take you to, there are indications that it is referring to the equivalent tenements of what is approved, and as I hope to show you having regard to the statutory context and a few other things, that question of construction will be resolved by understanding the expression “at the time the application is made” as encompassing the whole of the process of the application being advanced to approval of the development permit.  Now, at that moment the number of equivalent tenements is known.  The clause goes on to say that:

The contribution to be paid to Council shall be in accordance with –

a particular policy, and I will take you to the policies in a moment.  They identify the contribution by reference to equivalent tenements, so that in terms of the quantum the mechanism for its calculation is clear and your Honours can proceed on the basis that the Council has continued to publish these policies from 2007 up to now, or at least up to the determination of the proceeding below.

KIEFEL CJ:   Mr Doyle, is it your case that because of conditions 13 to 16, 13 and 15 in particular, that at the point when an application for development permit is made with much more information, that the developer would be prevented from arguing that the planning scheme policy 16 or 3A should not be applied?  Is the developer prevented by conditions 13 and 15 from arguing that at the point of development permit?

MR DOYLE:   Yes, the developer is bound by the conditions which are imposed, so that when it asks for and obtains the – when it obtained the preliminary approval subject to rights of appeal at that time which in fact there were exercised the things which were – the conditions of that approval are binding, binding on the land and binding on him as the owner of the land. 

Now, it can always ask for a variation of those conditions.  It is within the scope of the planning arrangement that you can always ask for a different approval.  But if you are operating within the preliminary approval, which this question proceeds on the basis that we are, the question becomes whether these conditions are an exercise of statutory power and whether it is necessary to impose a second set of conditions to enliven the exercise of that statutory power.

GORDON J:   Is that the question or is the other question whether or not the first question is right, are the conditions emphasised in the statutory power.  What is the answer to “Contributions shall be calculated at rate current at due date of payment”?  What is the due date for payment?

MR DOYLE:   I will come to that now, if I may.  Firstly, your Honours, one can accept there is a degree of ambiguity in these conditions.  There is a degree of ambiguity in many conditions imposed by local governments in approving various approvals.  The law suggests that these conditions are to be read, not in a technical way but so as to bring about practical consequences and uncertainty, which appears in many things, involves proper construction of the words used in order to achieve a practical consequence.

Now, this applicant applies for a set of approvals and conditions which will govern the long‑term development of its master plan so as to give it the framework or the certainty it requires for its future conduct.  The elements of uncertainty which I have addressed so far are capable in the ordinary way of being resolved as matters of construction. 

We then come to the date for payment.  Now, there are number of answers that could be.  The date for payment could be that the instant the development permit is issued, because at that instant the number of equivalent tenements is known and so the maths can be determined in accord with the policies, that is inherently unlikely because it would require an instantaneous payment without giving the appellants an opportunity to pay, that is, to garnish the money to pay. 

It could mean within a reasonable time of the issue of the permit and we have given your Honours in our written submissions a decision at first instance where the judge in enforcement proceedings, that is, when someone was seeking to enforce a condition against the landowner – it goes without saying that in the absence of a time being defined it would be within a reasonable time. 

The third answer which is applicable here is that the approval is itself a statutory instrument and by a process we have described in our written submissions that means that in Queensland certain provisions of the Acts Interpretation Act apply to it and those provisions include one which say where a time is not given for the performance of an act it is to be taken to mean as soon as possible.  So that the law in Queensland really provides the answer.  The date the payment is to be as soon as possible.  If we are right about the anterior questions of construction of this clause that means as soon as possible after the permit is granted and the ETs are ascertainable – the equivalent tenements are ascertainable.

Now, that is the construction which we urge is the correct construction which gives practical effect to the imposition of these conditions which is consistent with the statutory regime because it gives some function.  It is, in fact, then, the exercise of the statutory power to impose a condition requiring contribution towards infrastructure in the way which provides all of the elements required subject to, of course, as I have just said, undertaking something of a construction exercise, all of the elements required to identify what that contribution is.

It is unlike King Gee because no element of that involves a question of discretion.  …..King Gee decision was that in order to fix a maximum price for something, for cloth of some kind, parameters were used where two manufacturers acting reasonably and bona fide, could by matters of subjective judgment come up with different answers whereas here what is involved is merely a question of construing the clause – I say merely – the question of construing the clause, which courts always do, to resolve ambiguity, and you come up with the one correct answer ‑ ‑ ‑

GORDON J:   There is one aspect to that, I think, Mr Doyle, I would like you to address, and that is this.  One of the things when one looks at the exercise of the statutory power, the question posed is whether inherent in its nature it requires better certainty than as soon as possible, especially where you have it as we do here, where there is a possibility of imposing some sort of penalty for non‑compliance, and so that here resort to the Acts Interpretation Act does not address that question.  I raise it for this reason, because if you compare the form of the conditions in 13 to 16 with the other conditions in the preliminary approval, one sees in a sense much greater specificity.  They identify a particular event or time when the obligation crystallises. 

MR DOYLE:   Well, there are two aspects to that.  Firstly, in our submission, if the clause had said pay as soon as possible after the determination of the – the decision on the permit – that would be sufficiently certain to be the proper exercise of a power to impose a condition requiring contribution.  But in effect “as soon as possible” is defining the criteria which has to be met in order to satisfy.  There are plenty of offences we urge which exist which describe the obligation as being breached because it did not comply with an obligation to do something as soon as possible. 

The second question, your Honours – the second aspect of that – is to draw a distinction between this provision and others.  Not all of them have defined events.  There is, for example – many of them do – so I do not want your Honours to understand that we are suggesting most of them do not because we think that – sorry, if your Honours have in what is described as the appellants’ secondary supplementary bundle number…..it looks to be, there should be a better copy of the preliminary approval.  Condition 26 does not do so.

GORDON J:   I think, Mr Doyle, that is true, but there are a number of conditions.  Condition 11 is “by the time specified in the staging plan”.  There are a number of mechanisms available to make the specificity more certain.

MR DOYLE:   That is true.  Of that one, that is true.  So that there are other conditions which by reference to then known events or events which are defined you can work out probably a date.  But the same is true, in our respectful submission, of these conditions.  As a matter of the proper construction of them, to give them any effect – and I will be in a sense repeating what I have said – the statute confers a power to impose a condition which at least was thought to be exercised.  That is, this power is one to impose a condition requiring contribution in accordance with policies, and that is the language used in these conditions, to say something will apply, et cetera, in accordance with some policies. 

The object, we are told, of obtaining a preliminary approval is at least to provide some framework, some certainty to the developer which is to govern its future development of the project.  The statute in a way I will come back to in a moment locks in – if these are valid conditions, locks them in, so that a later set of conditions is not necessary in accordance with the section I have already taken you to.  The conditions of the preliminary approval are conditions of the development permit and locks them in, in a sense that there cannot be a departure from them so as to be inconsistent, all of which is designed to give the imposition of these conditions some practical effect.

Now, when one goes to the particular – and these are important conditions to both parties - when one goes to the conditions, there are aspects which are to some degree ambiguous.  But the proper response to that is to undertake a construction exercise which resolves that ambiguity.  If the result is that it cannot be resolved, so it cannot be said that the exercise of the power required a contribution at all, then it is not the exercise of the power requiring contribution. 

But in accordance with orthodox approaches, in our submission, the ambiguity in these clauses can be resolved in a way that, if I have not already, I hope to take your Honours through shortly, and the one that your Honours are particularly having trouble with is the due date for payment. 

Even if that was all that was said, in our submission you would draw the conclusion it means within a reasonable time.  The choice is then between construing it in a way that has no effect at all as not being a valid imposition, not being a valid exercise of the power, or give it some practical effect which the cases tell us one ought to read conditions of approval with that in mind.  One would infer that it is an obligation to do so within a reasonable time.

STEWARD J:   Mr Doyle, what is wrong with the proposition that the failure of the parties to nominate a due date for payment in relation to this contribution strongly suggests that the parties were not then at that time intending to create a liability, but were simply foreshadowing what type of liability would be imposed later on in a permit?

MR DOYLE:   Two things, your Honour.  One is the operation of the Statutory Instruments Act and the Acts Interpretation Act is to impose a time constraint as soon as possible.  Now, if that is thought to be not sufficient so be it.  But the second is there is no statutory utility in a notification of what might happen, that is, if it is not to be understood as exercise of a power to impose a condition it is just background noise.

STEWARD J:   Well, that may be so, but it might bind both the developer and the local government authority as to the means of the calculation of the liability without yet imposing that liability thus by reference to the identification of particular planning scheme policies. 

MR DOYLE:   The only way it can bind anyone is if it is the proper exercise of the power to impose a condition requiring a contribution towards.  If it falls within that then it is the proper exercise of a power and it has the effect which the Act otherwise gives it.  It binds the landowner from time to time.  It is an offence not to comply with it and so on but, importantly, it is a condition which is locked in because it is carried forward into the development permit phase in the way I have taken you to already and there cannot be a subsequent condition which is inconsistent with it. 

If it is not the exercise of that statutory power then none of those things apply.  No matter what it says it does not bind the landowner.  It is not carried forward so as to be a condition of the development permit when granted and there can be inconsistent provisions.  Those are really the two choices.  It is either something which has statutory foundation, or it is not and if it is not it cannot fulfil the function of being a framework at all.  It cannot fulfil what is the evident purpose of providing the certainty which the developer is seeking by the obtaining of the preliminary approval…..conditions.

GLEESON J:   Is it implicit in what you are saying there that this is a power that can only be exercised once and once exercised is spent?

MR DOYLE:   Subject to it – there not being a subsequent inconsistency, it could be exercised again, I suppose.  But the provisions – start again, the Act does not require it to be exercised twice and there is nothing in the Act which suggests it can be exercised only at the permit phase nor which says it has to be exercised both at the approval stage and the permit phase. 

What the Act does do is provide that if exercised, as I have already…..there are two relevant provisions, one which says it becomes a condition of the permit and the other is if there is something in the permit which is inconsistent with it, the condition of the preliminary approval prevails so that it is hard to imagine for this particular kind of condition but it is right to say the Act contemplates there could be a second set of conditions but it constrains them with some exceptions which do not matter.  It constrains them as not being inconsistent with the first.  I hope I have answered your Honour’s question. 

Your Honours, I wanted really – dealing with this question of construction – deal with it in a number of different components.  I wanted to start really with looking at the statutory context for the imposition of conditions at all.  Some of this I will be repeating what I have said so I will be brief.  There are really six points we wanted to note and obviously the statutory context is going to be important in the construction of the conditions. 

The first, which I have touched upon, there is no language in the statute which requires the second set of conditions and, as I have said, quite the reverse, the statute in section 3.1.5(3), to which I took you, locks in conditions of the preliminary approval as applying to a development permit without more.  This is all in the Integrated Planning Act, and that section, your Honours, was 3.1.5(3)(b)(ii) at page 154 of the pamphlet version. 

Secondly, the Act only contains one source of power – that is the one we took you to in section 6.1.31(2)(c).  Relevant for present purposes it is expressed in terms of a condition requiring a contribution, not forecasting or giving notice of a possible future condition but requiring a contribution to be made. 

The third is that in that section – in 6.1.31 – and perhaps I will trouble your Honours to go to that, page 426 of the pamphlet version - your Honours will see in subsection (3)(b)(i) there is a sunset date.  So, it operated on the ability of the Council to impose fresh conditions but did not operate on the functioning of the conditions themselves, that is Parliament sought to impose a limit on when the Council could impose a new condition, or another condition, but said nothing about the ongoing validity of conditions which had already been imposed. 

Related to that is that the preliminary approval is valid for four years.  That is in section 3.5.21, I will not take your Honours to that.  The conditions we are dealing with are all expressed in a way which makes them at least on their face seem to be relevant for the whole of the duration of the preliminary approval. 

But on the case put against us that was done at a time when it was known that, on the case put against us, there could never be a second set of conditions imposed 13 months later which, in our submission, is inconsistent with the way in which the sunset clause is expressed as being a restraint on a future condition, rather than on the validity of the current conditions, save in some respects where the statute – this is our fourth point – in some respects where the statute gives precedence to the conditions of the preliminary approval, the Act does not relevantly differentiate between the nature of conditions imposed by a permit, or those imposed by a preliminary approval.  Both attach to land, any condition must be reasonable and relevant, and contravention is an offence.

Fifthly, and I have answered I think your Honour Justice Gleeson to cover this, no part of the statutory regime assigns to the second kind of development approval – that is, the permit – the role of imposing infrastructure conditions.  It could have been done that way, that is, the preliminary approval might have said nothing about these conditions but in terms of the statute, the statute does not suggest it has to be in the second of the approvals. 

Given that a purpose of the preliminary approval is to provide the framework and the certainty which the developer party wishes, it is plainly the fulfilment of that statutory purpose to provide infrastructure conditions in the preliminary approval and the Act, as we have said, when that is done, locks them in in the two ways we described, by carrying them forward to be automatically terms of a permit when issued and by constraining the capacity to make a second set of conditions, if inconsistent with the first.

Finally, as I have said in answer to one of your Honour’s questions, I am sorry – the Act does not provide for something which is not a condition, but a mere notification. 

KIEFEL CJ:   But it does not follow from that, surely, Mr Doyle, that what is said to be a condition must be a condition?

MR DOYLE:   Not at all, your Honour.  I mean, there in fact is within this preliminary approval things described as general advice and not conditions.

KIEFEL CJ:   Yes.

MR DOYLE:   But that would not serve the function which the imposition of an infrastructure condition in a preliminary approval is plainly designed to serve.  So that we do not point to this as being sort of a determinative question, but the statutory context is one in which things which are described as conditions have to require the making of a contribution, and then have lots of consequences, all of which fulfil the evident statutory purpose to be fulfilled by a preliminary approval – but none of which is fulfilled, if it is just a matter of notification.

If it is a matter of notification, it does not give any certainty, it does not bind anyone, and it does not fulfil the framework concept which it seems common between the parties, and certainly the view articulated in the Court of Appeal, is intended to be the function of a preliminary approval.  Those are the matters of context. 

Can we turn then to the language of the conditions themselves and again, your Honours, this is in the core bundle at page 8 – and I have touched upon this, I think, so far.  The language used – and again, I will use condition 15 - the language used is language of obligation albeit conditionally upon some future thing.  It is said that it shall apply at the time the application is made.  The words used are “shall apply to be paid” and “shall be in accordance with” various specified policies.  There is no mention in these terms or anywhere of a need to impose a second condition.  So, there is no language of “subject to the terms of” or “subject to the imposition of” a condition in the development permit.  The language used is not language of constraining what condition will be imposed but rather identifying what contribution shall be made.

GLEESON J:   Mr Doyle, you might come to this in due course, but I am curious about the reference to multiple “contributions” in the first sentence and “contribution” in the singular in the second sentence. 

MR DOYLE:   I was not proposing to come to that, your Honour, but I can speculate because as I am going to – this is a set of conditions which are intended to apply across a month…..development.  There could, therefore, and there would, therefore, be a series of times when that – where a contribution would have to be paid.  We are only, of course, talking about the question of when an application for a development permit is made for a particular aspect of that master plan but it would recur each time that happens.

There is - I should have brought this to your Honours’ attention earlier – in the preliminary approvals, and I am sorry this is in supplementary book F, a site density maximum provided for in clause 48, so that if the - contemplated that if there is some revision of that then the applicant will be required to pay the relevant charge or credit accordingly.  So that whilst we are talking about equivalent tenements here, the site density across the whole of the site provided for in clause 48.

KIEFEL CJ:   Mr Doyle, could I ask you, I think you said supplementary book F – can you just check that for me.

MR DOYLE:   Might be an “E”, your Honour, I am sorry.

KIEFEL CJ:   Yes, thank you.

MS DOYLE:   It is the – I hope a better copy of the whole of the preliminary approval and at page 21 of that book.  Your Honours, if I may, back to the language of the conditions we are principally concerned with, each of them refers to a distinction between the contribution applying at the time the application is made and a date which is the day at which the rate is to be calculated and payment made.  That, as a matter of construction, suggests that there is a difference between those two dates so it probably would be – it points to the obligation to pay not being an obligation to pay at the date the application is lodged. 

That was the construction which was considered by the Court of Appeal and rejected, as your Honours will recall, essentially for it being – I think the language used was “remarkable”, but for its unfairness to someone in my client’s position.  But then one needs to focus on the expression:

at the time application is made –

and as we have said one construction is that it means at the time the application is lodged and the other is that it encompasses the period of the process of lodgement, consideration and decision.  The former, if that were the correction construction, would be inherently unfair, it is said and there are other indications I will come to why that cannot be right.  So that, as a matter of construction, we would urge this to be understood as referring to the whole of the process of the making of the application, not limited to the mere lodgement of it. 

That indeed seems to be the way the Court of Appeal viewed it because if the conditions are to provide a framework at all for the imposition of a second set of conditions which impose the infrastructure contribution, it must be because the expression, “at the time application is made for a Development Permit”, refers to when it is assessed and approved.

STEWARD J:   Mr Doyle, do you accept that that perhaps is a strained way of reading the language?  I would have thought the time an application is made would not ordinarily include the receipt of the consideration and the determination of the application.

MR DOYLE:   I accept that.  But, your Honour, if it is accepted that the former cannot be right for at least two reasons - and one I have touched upon - the view expressed by the Court of Appeal is it would be a remarkable construction because of the unfairness to my client and the second is, when we go to look at them, the policies contemplate that what is being spoken of as the equivalent tenements is the equivalent tenements approved.

STEWARD J:   Does that first point assume, though, that the clause creates a liability to make the contribution?

MR DOYLE:   Of course, yes.

STEWARD J:   If one does not assume that and that question is open ‑ ‑ ‑

MR DOYLE:   Yes, your Honour.  If the condition is not a condition requiring the payment of contribution, but something else, then it does not matter what it says on our submissions.  It could otherwise say anything, because it does not bind anyone.  What I am addressing here is why it is we contend the apparent ambiguity in what we accept is some unfortunate language does not lead to the conclusion that it is not the exercise of the power.  Rather, it leads to the conclusion that one has to analyse, as courts always do, the words used – not in a highly technical way, but the words used so as to bring about a practical result.  The things that we point to in each case are simply constructional choices. 

Now, the date identified is not the date of lodgement of the application, but rather the date of making it which includes - I am reminded that it says “at the time the application is made” rather than “the date”, so it is not identifying a particular date of lodgement but rather the time something has taken place.

The making of an application involved putting it to the Council, lodging it with the Council, often public advertisement, receipt of submissions and so on – but it is a process rather than an event and we submit that is the constructional choice.  Assuming one is looking to give it practical effect ‑ ‑ ‑

GORDON J:   Can I ask – one aspect of that.  You put in your submission receipt, consideration and determination of the application.  Does the latter of that trilogy include all of the difficulties that are set out in the IPA and the other Acts about when a development permit takes effect – because it is subject to appeals, and a whole range of other things that might take into account whether or not the matter actually takes effect?

MR DOYLE:   Yes, your Honour.

GORDON J:   So how would we know when that process was complete?

MR DOYLE:   When it takes effect.  That is, if there is no appeal, it will take effect from the date of the decision notice I think is the language used.  If there is an appeal, it takes effect when it is disposed of.  But, your Honour, these are, as we say, only constructional choices.  On either of them, they are treating the condition as imposing a requirement to do something. 

On one, that is, on the one that the Court of Appeal rejected, it would require the payment of the equivalent tenements at the time the application was lodged.  That can be done because you would then say, well, what are the equivalent tenements of the thing for which the application was made.  But for the reasons we have expressed, the Court of Appeal rejected that and there is some sense in that.  So, the alternative ‑ ‑ ‑

GORDON J:   Sorry, that would be inconsistent though, would it not be, with the methods of calculation in the policies?

MR DOYLE:   That is in fact the point we were going to make.  If the method in the policy itself requires there to be – or assumes there to be an approved equivalent tenement, that favours the second construction for which we contend.

GORDON J:   Thank you.

MR DOYLE:   That is one of the reasons – not only what is perceived to be the remarkable nature or inherent unfairness of the lodgement date being a proper construction, but also construing the conditions with the policy and against the background of the statutory context to which we have taken you which suggests that it is the time the ETs are known, and that is by determination of the application. 

What is clear, we would submit, from that language is that it is the contribution which is to apply at…..and that the question of the application of – it is not the case that the question of the application of any obligation to make a contribution is being deferred to some later decision, which is the construction which the Court of Appeal proceeded on.  That is inconsistent with the language of “shall apply at the time the application is made”.  The way the Court of Appeal approached, it should read “shall apply when some other future decision is made”, not this one.

The third thing we would point to is that the methodology for the calculation of the contribution is identified.  At condition 15, the policy is 3A, and your Honours will recall that section 6.1.31 to which we have gone, which is the source of power applies in the case where the local authority has such a policy about infrastructure and the power to impose a condition is a power to require contribution under that policy. 

So, again, that language is, we would submit, reflective of an intention at least to exercise a statutory power which requires a contribution to be made in accordance with the policy, rather than one which constrains the form of a future condition which would require that to occur.

The fourth point is really uncontroversial, we think.  The policies identify the contribution by reference to equivalent tenants.  Now, that is at least at a high level of generality capable of referring to the equivalent tenements of the form of development applied for, that is, the form that is in the document when it is lodged, or, the equivalent tenements in the form of development approved and, in a sense, whichever it is it is a matter of construction.  It is not a matter of certainty or uncertainty.  It is a matter of construction.  But the things I have already mentioned, including the terms of the policy which I will go to now, suggest that it is the latter.  Would your Honours go to - it is volume 7 of the book of authorities, page 1699?

GORDON J:   This is policy 3A which relates to condition 15.  Is that right?

MR DOYLE:   It does, yes, your Honour – 3B we provided to your Honours yesterday, but it is – apart from relating to a different form of infrastructure the language that I am going to take you to is the same in both.  If your Honours note in clause 1.0 “Purpose”, it is to:

apply every development application -

It does not say it applies to every development application, so the condition is at least consistent with reflecting this policy.  In paragraph 2.0, the “Philosophy”:

An applicant shall pay . . . to meet the demand placed on the network by the development.

That language:

placed on the network by the development -

suggests in fact placed so that is the ETs approved as distinct from those asked for.

KIEFEL CJ:   Mr Doyle, that might be a convenient time for the Court to take its morning break. 

MR DOYLE:   As your Honours please. 

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ:   Yes, Mr Doyle.

MR DOYLE:   Your Honours, we were looking at the policy 3A.  Could I ask if you go to page 1712, just to note there is a heading section 4.0:

DEVELOPER CONTRIBUTIONS –

and then in 4.1 it says:

The developer contributions for ‑

certain things shall be this, and then it says:

The contributions are based on equivalent tenements (ET) –

Then there are a series of tables, each of which – the detail does not matter but each of which identifies the sum by reference to the number of ETs.  The expression “equivalent tenements” is defined further at page 1741, at line 50 of the…..book, which we will ask you to read which your Honours will see refers to:

The demand from each property is related to the type of development allowed on the property –

So, in terms of understanding the construction question which we have put a moment ago, the policies themselves contemplate the ETs will be the demand it approved.  And if your Honours turn back to page 1722, there is clause 8, largely irrelevant this paragraph, but if your Honours would look at the second paragraph:

The per ET developer contributions for the water supply network –

we are told is to be levied in accordance with the tables for the particular lot.

KIEFEL CJ:   Mr Doyle, I take it that you are saying the ETs were capable of being determined from the preliminary approval?

MR DOYLE:   No, your Honour.  On this construction which we are urging, the expression, at the time of making the application extends up to its approval at which time the ETs are known, and one of the things we point to in favour of that construction is the policies which are referred to as being engaged by this clause speak of ETs as the ETs allowed on the ‑ ‑ ‑

KIEFEL CJ:   I see.  Yes, I follow, thank you.

MR DOYLE:   The next passage I wanted to take you to is the third paragraph under this heading, really for the same point:

If development at a higher residential density is approved for the lot, then additional developer contributions will be levied for the additional ETs.

So, again, it speaks of approved for the particular lot.  So, when one construes the – and, as I have told your Honour, I can take you to it if you wish, but 3B, policy 3B, is materially the same.  But construing the conditions includes having regard to the terms of the policies and the things which we have already mentioned about the perceived unfairness to the appellant, the applicant, in a particular construction which leads one to take a different construction, is reinforced by reference to these policies, which contemplate ETs describing the amount approved.  Returning then to the ‑ ‑ ‑ 

GORDON J:   Before you leave those, Mr Doyle, can I just ask you about clause 9 on 1734.  Do they assist you?

MR DOYLE:   Might I come back to that?  I must say when I tried to decipher the reasonable print I was not able to see anything particularly helpful describing the timing of things, but I was not able to identify anything that ‑ ‑ ‑ 

GORDON J:   One of the things that it might assist, and I do not know, is that it seemed to provide in the chart that there was to be the subject of discussion and negotiation about yield factors and some of the integers that went into the method of calculation.

MR DOYLE:   Yes, well, I will come back to your Honour, if I may, on that.  That might have to be after my learned friend finishes his submissions, if I may.  Can I return then to the language of the conditions, because construing them as we urge is the proper way, having regard to orthodox approaches to construction, having regard to the statutory context, the words used and the words of the policy.  Once the permit is granted the ETs are known, the rates to be applied are those current with the date due for payment, and as I have said, your Honours, it is common ground they are still published.  The respondent submits in its oral summary that the expression the:

“due date for payment” is not capable of being ascertained as a matter of interpretation of the conditions.

Of course, the date is not stated.  There are a number of possibilities.  We have touched upon them, but they are really resolved as a matter of construction by either being a reasonable time or, as we would urge, by reference to the statutory instruments provision and the Acts Interpretation Act, to mean as soon as possible. 

So, all of the integers required to give these conditions operation, despite some of the inelegant language used, are capable of being resolved by a proper constructional approach, including the one which the respondent relies upon, that is, the due date being incapable of “being ascertained”, that one being the easiest, in a sense, because it is imposed by the statutory provisions in Queensland. 

Still dealing with the construction, if your Honours need to, can you go back to the appellants’ second supplementary volume E, which is where the preliminary approval was – it is at page 7, at point C.  This is the original preliminary approval:

The applicant and the submitters be notified, as required under the provisions of the Integrated Planning Act, the conditions that attach to this Preliminary Approval are as follows ‑

and then there are many pages of things which are set out which are at least intended to be conditions, whereas if your Honours then go to page 24 of the book, at the end of those conditions there is a different heading, “General advice”, and the Council has made it clear that these are not conditions.  It is a small point, but the proposition which the Council now wishes to advance is that even conditions 13 to 16 are not conditions.

Now, it says because they are uncertain, but it also says because they operate as mere notification of something.  Again, as a matter of construing the documents, it is in a document which deliberately draws a distinction between some things which are conditions and some things which are deliberately not, and that supports our ‑ ‑ ‑

KIEFEL CJ:   Mr Doyle, does the appellant continue to pursue the argument based on the contra proferentem rule?

MR DOYLE:   No, your Honour, not as such.  I am going to come back and explain why in a moment.  So that is another contextual matter which assists, we would submit, our construction.  The final topic about construction is one I have probably laboured, that is, the proper approach to construing an approval is to give it practical effect.  Not to construe it, as our friends accept, in a technical way, but so as to give it practical operation. 

Parliament obviously intended, we would submit, there to be a condition which comply with the power in section 6.1.32, to which we have taken you, requiring a contribution to be made, not one contemplating a further condition to be required.  The object of that is the one I have mentioned, and which seems to be common ground between us, to provide a developer with the long‑term certainty of knowing what is going to be the burden or the obligations on it in pursuing its preliminary approval in stages over a number of years.

The only construction which gives these conditions practical effect is the one urged by the appellants.  The respondent says they have no effect at all, and the Court of Appeal, and the respondent joining in, would say they fulfil some kind of notification function, which, as we have said, is not something expressly contemplated by any of these Acts, and which does not provide a framework.  It does not provide the certainty which the provision of a framework requires.

Can we just touch upon really two further aspects of that.  The first is to again remind your Honours of the sunset provision which was in the Integrated Planning Act at page 426 of the pamphlet in section 6.1.31.  We have already addressed your Honours as to the effect of this but, tested against the prism of the case put against us, these conditions were mere notifications.  They are contained in a preliminary approval which obviously relates to the long‑term development of the project and what is plain is that they were imposed at a time when this provision was in force and 13 months before the sunset date. 

So that, whatever function it serves as a notification, it was against a background of knowing that it could never be fulfilled by the imposition of a condition in the 14th month.  That statutory context, in our submission, makes it very unlikely it is to be understood in that passive way of some kind of notification because the parties also would have known that it could never be carried into effect by a condition after the expiry of 13 months.

KIEFEL CJ:   The Council’s knowledge really cannot be of much assistance, can it?

MR DOYLE:   No, but it is an objective consideration, your Honour.  As we have said, this section is concerned with not denuding the operation of things which are imposed, but of preventing a new imposition.

KIEFEL CJ:   If one were to take account of the Council’s knowledge of the development being long term and extending beyond the sunset period, one would also make relevant Council’s understanding of what the next statutory scheme might be, and councils are often in a position with local government ministers and departments to understand what is coming along after the sunset period, and that would not be relevant, would it?

MR DOYLE:   No.  Your Honour, I was not suggesting the subjective knowledge of either party matters.  But the statutory context is one in which at the time these conditions were imposed the statute made plain that if they are not operating in the way we contend for, they would cease to have any role after 13 months because of the sunset provision, and there is nothing in the terms of the approval which suggests that was contemplated, and the approval itself is expressed to operate statutorily for four years. 

So, again, when one has construed the statutory context and asking the question, as we now are, what is the practical effect to be given to them, if they are to be treated as signposts, as a notification without effect, it is a very myopic signpost; it can only operate for a very limited period.  That is a construction of them which would fail to give them the effect which Parliament obviously intended them to have, by the way I have described before, but providing certainty for the period of the preliminary approval at least.

The second aspect of that is that – this is more – the parties themselves have conducted themselves in a way which does not suggest there was any lack of practical operation of these provisions at least until the Court of Appeal.  The respondent at first instance explicitly disowned the submission that the provisions were uncertain, and your Honours will recall ‑ and I think this is in the respondent’s submissions and book of further material – no, it is the respondent’s book of further material at page 6.

KIEFEL CJ:   I am sorry, what was that, Mr Doyle?

MR DOYLE:   The respondent’s book of further materials page 6.  Your Honours probably need not go to it.  This preliminary approval has been amended and republished, if you like, by order and the preliminary approval terms which commence at page 9 ‑ you will see at page 10 ‑ continue to include…..conditions.  We do not suggest that weighs heavily in your Honours’ approach but if the question is are they merely notifications which on the case put against us now cease to have any practical effect from 2011, that was not something which the Council was propounding when they republished these very conditions a couple of years ago.

KIEFEL CJ:   But the question is not really whether the Council intended to bind itself or, on the other hand, to notify.  The question is, essentially, whether by the construction of the…..condition and the provision giving the power to condition 6.1.31, whether or not what it is said to be a condition is truly a condition.

MR DOYLE:   We accept that, your Honour.  We accept that.  That is the subjective intention of the Council about these things.  What I say is probably they intended to be bound by it at the time it was published, why else include it, but the question really is what effect is to be given to it and that is a question of construction.  If you are against us in what we have said about it then so be it.  It is not a condition and we fail.  But to give it – I will not repeat myself. 

The statutory context is such which requires it to have some binding effect otherwise it fulfils no function and if the object is to construe them so as to give them practical effect, that requires they be given some binding effect consistent with the scope of the power, assumed to which they professed to be made, looked like they professed to be made, consistent with the terms of the policies and consistent with the object of providing a framework.

Now, none of that is fulfilled if they operate merely as notifications as informal indications of what might occur, particularly when one knows that the statutory regime under which it might occur was at the time anticipated to cease a very short time into the period of the preliminary approval.

Then one invites the next question, how is it proved to be incapable of practical effect, and it has not, because the Council until these proceedings, has continued to republish these conditions as operative now, at least at the time of that last amendment to the preliminary approval.

So, your Honour is right.  If they are not conditions, none of this matters.  But, in answering the question, are they conditions, one needs to take into account, as we urge, the statutory context, the language used, and then to give the language used a practical effect which means, in our submission, the effect for which we contend.

Your Honours, can I deal with the points of approach, if you like.  The authorities which we probably will not trouble your Honours with presently, identified that the exercise of statutory powers such as the imposition of conditions can be ambiguous.  The response to ambiguity is to approach to resolve it by construing the condition, and to do so in order to give it practical effect, and that uncertainty of itself does not make a condition imposed in exercise of a statutory power invalid. 

The question is whether it ceases to be the exercise of a statutory power and really for both of those propositions – sorry, for the second of those propositions - we will rely upon it without taking your Honours to it ‑ this Court’s decision in King Gee Clothing v The Commonwealth and, in particular, the reasons of Sir Owen Dixon, that approach has been applied in respect to an approval, a condition of approval, in a New South Wales Court of Appeal decision of Westfield Management Limited v Perpetual Trustee Company Limited, and it might be worthwhile taking your Honours to that.  It is in volume 6 of the bundle of authorities and it starts at page 1625.

Your Honours, in that case Westfield owned or managed three adjoining properties, and one of them directly adjoined property owned by Perpetual.  Perpetual…..a right of way easement over its basement carpark to the Westfield property which immediately adjoined it, but then the Council imposed as a condition on a further development approval obtained by Perpetual that in effect extended that right‑of‑way easement to the other two adjoining properties.  There was said to be uncertainty as to how the condition operated, how it combined Westfield as owner of more remote parcels and what terms of the easement were to be granted on.

Your Honours, the relevant condition is at page 1628 in paragraph 4.  At paragraph 32 of the reasons there is some…..discussion under the heading of “Uncertainty”, none of which really matters for these purposes.  But can we ask your Honours to read paragraph 36.

KIEFEL CJ:   We do not appear to have it.  On page 1636 it moves from paragraph 29 and the next page is paragraph 67.

MR DOYLE:   If your Honours go to page 1639 of the book and read paragraph 36.

KIEFEL CJ:   I see, it is out of order.  Thank you.

MR DOYLE:   Now, what is said there is quoting or summarising a submission which was made by Mr Walker.  But if your Honours then turn to paragraph 40 on the next page, their Honours adopt that statement of principle.  Their Honours then go on to undertake the kind of construction exercise, in a different context of course, that we urge here, to put meat on the bones of that easement.

GORDON J:   Mr Doyle, that matter was the subject of an application for special leave to appeal which is set out in tab 44, and there was a resolution of that application at pages 1681 to 1682.

MR DOYLE:   Yes.

GORDON J:   Do you propose to address those paragraphs?

MR DOYLE:   Yes.  Well, we have included that I think in our submissions where special leave was relevantly refused because of the adoption of the principles explained by Justice Dixon in King Gee which is to the effect that uncertainty does not render the exercise of an approval, in this case, invalid.  Uncertainty is to be resolved as a matter of construction unless it can be said that the condition is not the exercise of the statutory power.  So that it is consistent with what we urge that the mere uncertainty in the – the fact of uncertainty in a condition does not render it invalid.  What it requires is the exercise of construction to give it meaning.  Uncertainty is only germane if it has the effect that the power cannot be said to have been exercised.

Now, I am sorry to say I have addressed as much as I hoped to about those passages, because the approach we urge is to recognise there are elements of ambiguity in these conditions, embark upon resolving them as a matter of constructional choice, and there are pointers in favour of the constructional choice for which we urge in the way I have described it, having regard to the statutory context and the language used, the terms of the policies themselves, and giving practical effect to the provision.

Doing so, it cannot be said, in our submission, that it is not the exercise of the statutory power to require a contribution in respect of infrastructure in accordance with the policies.  So that the process of construction gives the clauses meaning which show that it is not outside the scope of the statutory power in 6.1.32, and that is the approach by this Court in the rejection of special leave…..

There are a number of cases which both parties have referred to your Honours about the approach to construing planning documents so as to give them practical effect or a common‑sense effect.  If needs be I will address them in our reply, but we do not apprehend that to be a controversial proposition.  They are not to be construed as documents drawn by lawyers but rather by people seeking to achieve practical effect.

In that context, your Honour the Chief Justice asked me about the contra proferentem proposition.  The way we put it really is slightly differently now that part of the statutory context which is to be taken into account in construing these provisions is to recognise that if effective the conditions impose a burden on the landowner and expose the landowner to the risk of prosecution.  So, that that context is relevant to determining which of two competing constructions might be thought to be the preferred, but that is not a contra proferentem proposition, that is having regard to, as we urge, the statutory context in its entirety. 

If your Honours then go to the Planning Act – I am sorry, that is what I proposed to say about the conditions except now to go to the Planning Act itself, which is in volume 1 and to section 286 at page 245 of the pamphlet or page 371 of the appeal book.  This is about as far as I got last time, but your Honours will recall that this is the statute which applies now, and this is part of the transitional provisions and by section 286(1) it applies to the document under the old Act and that extends this preliminary approval. 

STEWARD J:   Just pausing there, the old Act is the Sustainable Planning Act, how is it put that the preliminary approval was under that Act?

MR DOYLE:   Under the Sustainable Planning Act there is a provision that says that preliminary approval under IPA is to be taken as one within the meaning of section 242, I think it is, your Honour, but I will have my junior check on that.

STEWARD J:   Thank you.

MR DOYLE:   Carried forward, in that sense, in the Sustainable Planning Act, and I will say, not that this matters, that proposition is not controversial between us.  Then it says:

Subject to this part –

I am sorry, it is section 801 of the Sustainable Planning Act has that effect.

STEWARD J:   Thank you.

MR DOYLE:   Then:

Subject to this part –

and I will come back to something about that in a moment:

the document continues to have effect according to the terms and conditions of the document, even if the terms and conditions could not be imposed under this Act.

The expression “document” is defined on the next page in subsection 7(a)(iii) to extend to preliminary approval.  As I took your Honours to last time, section 66 – which is at page 82 of the pamphlet, 308 of the appeal book – section 66(1)(c) provides that if there was an application made under the Planning Act, a development condition must not, other than in some respects:

be given for–

(i)       infrastructure –

So that, putting aside the exceptions, section 286, where it speaks of a preliminary approval having effect even though the conditions cannot be imposed under this Act, plainly had in mind a condition relating to infrastructure.

Now, the exceptions – other than under Chapter 4, Parts 2 or 3 – do not bear upon this question.  But can we just give your Honours a reference to sections 130 and 146 which provide for either a State to impose an infrastructure condition or some different kind of infrastructure; but they do not bear upon the matters before your Honours.

So that on the first part of our case, the conditions were, when imposed under IPA, were conditions.  As a matter of construction, they can be given effect.  It is not a precondition to them having effect that there be a second set of conditions imposed.  They are preserved, in effect, by the transitional provision, section 286, to have effect according to their terms and conditions – even if, even though they contain a condition which could not be imposed under this Act.

STEWARD J:   Can I ask a question, Mr Doyle, I am sorry.  Chapter 8 of the Planning Act deals with repeal and transitional provisions.  Division 5 deals specifically then with infrastructure.

MR DOYLE:   Yes.

STEWARD J:   Do we need to be worried about any of its provisions – in particular, sections 306 and 307?

MR DOYLE:   You do, and I am going to take your Honour to them shortly, if I may, in respect of the notice of contention.

STEWARD J:   Thank you. 

MR DOYLE:   Before I leave our appeal – I am sorry, so that your Honours understand that if we are right about the primary question of construction of the conditions as being conditions, our submission is there is no statutory abrogation of them having effect at all in the interim and the provision of section 286 preserves them according to their terms and effect.  So, the effect is the Council, and we have to, pay in accordance with the contributions called for by conditions 13 to 16.

I wanted to touch upon finally one aspect of that raised in the Court of Appeal’s reasons and if your Honours can go back to the core book, to page 44, to paragraph [50] initially.  His Honour Justice McMurdo said:

Critical to the resolution of this case is the effect of s 880 of the SPA . . . By s 880(2)(b), the Council was precluded from imposing a condition –

et cetera.  Then in [51]:

An obligation to pay was to come from the imposition of a condition of a development permit.  It was then that the amount –

et cetera.  Then in paragraph [56], if your Honours would read that, but particularly – sorry, I will just let your Honours read that.  Now, in our submission, none of what his Honour there says affects the case as we urge it to be.  Over the years the regime allowing local authorities to recover infrastructure by conditions has been slowly removed and the removal was managed by a range of transitional provisions.  As we have seen, when this approval was…..there was a sunset date which applied.  But the transitional provision in section 6.1.31 allowed these conditions to be imposed even though a further condition could only be imposed for some short time. 

IPA was replaced by the Sustainable Planning Act.  I will not take your Honours to it for the moment.  It adopted an infrastructure charges notice regime.  Perhaps I should take your Honours to it.  It is in volume 2 of the record, section 801 of that statute.  It is the one that continues the preliminary approval under this Act. 

By section 848 for a short time – now until 30 June 2010 – even this Act contemplated that a new application could be made and an infrastructure condition imposed - not directly relevant because that did not occur here; we are not concerned with that.  Then section 880 is the one that his Honour thought was critical, and that is at page 558.  What it does under subsection (2) is state that:

A local government must not—

. . . 

(b)impose a condition under a planning scheme policy to which section  847 applies.

Your Honours can accept that 847 applies.  So, it is constraining the power of the Council to impose the further condition.  Now, if the construction put against us is right and the promulgation of a further condition is necessary in order to impose an obligation, then it cannot occur.  But on the construction for which we urge, it is irrelevant that a further condition cannot be imposed.  Indeed, we draw some comfort from 880(3) because subsection (3) says subsection (2):

does not stop a local government—

. . . 

(ii)collecting an infrastructure contribution payable under a condition lawfully imposed –

et cetera.  So, even though it was, under the amendments which were made in 2011, not possible to impose a new condition, it was made plain by the Parliament that it was not affecting the obligation if there was one under a pre‑existing condition and that is the case we advance.  So that this discussion by his Honour is, we would urge, irrelevant to the resolution of the matter because to get there you needed to have decided first that these are not conditions, and having done that of course we fail anyway, but if they are conditions, nothing in section 880 affects the outcome of the decision. 

Can I move very briefly then to the notice of contention, if that is a convenient course.  I am happy to address it now rather than deal with it after my friend has.  I will only be brief. 

KIEFEL CJ:   Yes, thank you, Mr Doyle. 

MR DOYLE:   The respondent by its notice of contention contends in effect that the Planning Act is to be construed so that even if these are conditions which are preserved and of operable effect, the Council cannot give effect to them and must now raise an infrastructure charges notice by a different process, that is the process set out in section 119 of the Planning Act. 

If your Honours could go back to the Planning Act, please, in section 119 in the pamphlet copy commencing at page 127.  The Planning Act does really two things, relevantly.  By section 286 to which we have just taken you it preserves a preliminary approval, this preliminary approval, to:

have effect according to the terms and conditions of the document, even if the terms and conditions could not –

now be imposed.  The consequence is, stopping there, the developer, once the contingencies of the condition are satisfied, has to pay the infrastructure contributions called for by the conditions and by the policies which are called up for by those conditions, but with the benefit of the credits which identify in those conditions. 

The second thing the Act does is to specify in section 119, which has the effect, if it applies, of requiring a local authority to “issue an infrastructure charges notice” and there is no relief in the statute for double payment, and no ability in the statute to allow credit for sums paid under a condition, or indeed to allow credits for the sums identified in conditions. 

It is unclear presently whether the respondent submits that the correct construction is the developer is to pay twice.  In its outline of oral address at paragraph 17 it submits as an alternative to a primary contention that the two provisions operate concurrently.  That may mean that the developer has to pay twice, or perhaps, we think more likely, it is being submitted that we would have to pay whichever is the greater of the two and in that way satisfy both.  I am putting it that way. 

That, however, would largely render the reference to the conditions likely nugatory because of the size of the credits which are available under the conditions which there is no statutory analogue under the infrastructure charges notice provisions.  The statement of agreed facts shows that the Council’s letter in 2017, I think it was, identified the credits as being about $19 million. 

The approach we urge – and this as an approach is not I think controversial – to read the sections together harmoniously, if conflict arises to modify the language best to give effect to the evident purpose and the language and we submit that is relatively easily done in this case. 

Section 119 of the Planning Act only operates if an adopted charge applies to the provision of infrastructure for the development.  In this case, the Council has already made provision, if we are right about the conditions, for the infrastructure contributions to be made for the development under consideration here.  That has to be determined pursuant to the conditions imposed upon that development approval.  They remain valid in effect, according to their terms, and that makes both the requirement for contribution and the requirement for the credits available and effective.

It is, we would submit, relevantly easy to conclude that Parliament did not intend two payments to be made, and a sensible way to construe the two sections harmoniously, having regard to their language, is to say that section 119, which of course operates generically across all forms of applications for development approval, is not applicable to a particular form of development where it has already been decided by the Council what the contribution is to be made and that that continues in operation and effect by section 286.

On the other hand, if there is some irreconcilable clash between the two provisions, in our submission the transitional provision which explicitly preserves the preliminary approval and its conditions to have effect according to their terms, represent the specific transitional provision which applies to those…..situations, and it can only do that - effect can only be given to that by saying it displaces the operation of section 119.

Your Honours, we would urge that both sections 307 and 306 support that conclusion - that is 307 and 306 of the Planning Act.  If your Honours could start with 307:

This section applies to a development approval, in force when the old Act is repealed –

So…..:

that is subject to a condition imposed under the old Act, section 848(2)(c).

Now, I took your Honours to that.  That is a provision not directly applicable here because it was concerned with a fresh application made under the Sustainable Planning Act where a condition is imposed pursuant to the window of opportunity afforded by section 848.  If your Honours would then note subsection (2):

This Act –

other than some that we need not trouble with:

applies to the giving of an infrastructure charges notice in relation to—

(a)       a change approval . . . or –

. . . 

(b)       an extension approval –

If your Honours then go back to section 119(5), it provides:

The local government must give an infrastructure charges notice to the applicant for a change application or extension application if‑‑

(a)an approval is given for the application; and

(b)subsection (1)(b) did not apply for the development approval to which the application relates, but applies because of the change or extension.

On the case which is put against us that section 119 is the specific provision which takes effect really displacing the transitional provisions, that language, which mirrors the language of section 307, makes section 307 otiose – that is why did Parliament, if 119 is intended to be the specific provision, bother with section 307 and the answer is there was no need to have done so because the particular way in which it operates is in respect of things occurring because of the change or extension.

STEWARD J:   Can I ask while you are on that page, if you are right about the effect of section 286 to the preliminary approval, why did Parliament feel the need to insert section 306 in relation to - or take the fresh conditions that might have been applied under the Sustainable Planning Act?

MR DOYLE:   The only answer to your Honour is that the old Act section 848(3) and (5) are said to apply, so that the effect of 306 assumes the operation of 286.  It assumes the approval with its conditions continue in operation and effect, then imposes a qualification with respect to them.  So, it has the effect of imposing a qualification. 

If your Honour goes to – I will read it to your Honours.  The provisions of section 848 of the Sustainable Planning Act, principally in subsection (5) – subsection (3) persists in the notion of precedence given to an infrastructure agreement.  Subsection (3)(b) does not apply, so it does not apply – that is, the Planning Act does not carry forward (3)(b), and (5), which is the remaining effective provision, qualifies the condition that it cannot require adjustment greater than the CPI.

So that for circumstances in which section 306 applies, consistently with our case it assumes that section 286 applies to…..the conditions but then imposes a qualification if you like on the extent of the adjustment that can be made.  So, whilst it is not directly relevant to our case, consistent with what we urge to be the effect of section 286, which preserves the conditions but peculiarly for the operation of section 848, imposes a constraint upon escalation.  I hope, your Honours, that I have answered your question.  Your Honours, those are our submissions.

KIEFEL CJ:   Thank you, Mr Doyle.  Yes, Mr Gibson.

MR GIBSON:   Most of the threshold question, the way it is framed by the appellant is that the Court of Appeal through the conditions 13 to 16 and I will probably refer to 13 as the example as did the Court of Appeal, the submission that was made by the appellant is that the Court of Appeal construed those conditions as something, “other than conditions”. 

That submission is made at paragraph 46 of the appellants’ written outline and it is that which is the springboard for the further submission that has been made, particularly today, that these conditions are simply background noise, or these provisions are simply background noise of no effect whatsoever.  Each of those submissions is incorrect and to the extent that they represent a foundation of the case that is advanced now, they should be rejected.

Firstly, nowhere did the Court of Appeal, Justice McMurdo state expressly or to the effect that the clauses in question were not conditions.  It is true that he used the word “clause” at paragraph 25 of the reasons for judgment but that must be seen in the context of the discussion that precedes it and which explains why his Honour came to the conclusion he did.

KIEFEL CJ:   But, Mr Gibson, what Justice McMurdo, with respect, appears not to have done was to consider – this threshold question is determined by reference to the construction of the statutory power relating to conditions, namely, 6.1.32 of the Integrated Planning Act and construing what is called a condition in light of what is required to take place for it to be a condition.  That is not an exercise which his Honour undertook and that is the exercise which the Court has been engaged in discussion with Mr Doyle this morning.

MR GIBSON:   Yes, your Honour, with respect to section 6.1.31 ‑ ‑ ‑

KIEFEL CJ:   Yes, I am sorry, 31.

MR GIBSON:   I understood your Honour to be referring to that, subsection (2)(c), it is an empowering provision.  It confers power on a local government to impose a condition requiring land works or relevantly contribution towards the cost of supplying infrastructure under a policy, et cetera, but it does not have the converse effect that a clause which we will call a condition in a development approval must relevantly require that a contribution be made to supplying infrastructure.

KIEFEL CJ:   I do not follow that, Mr Gibson.  If the only power to impose a condition of the kind in question, namely relating to contribution to the cost of infrastructure is subsection (2)(c), if what the local government does is not require a contribution towards the cost of supplying infrastructure, how can it possibly be called a condition?  I have to say I am finding your argument thus far a little difficult to follow because it is one that favours the Council.  You do not seem to wish to take it up.

MR GIBSON:   I am uncertain as to what your Honour is referring to?

KIEFEL CJ:   Well, the question of construction - that what is called the condition is not a condition to which the IPA refers is one which is maybe determinative in your favour, but you seem to be arguing against the proposition.

MR GIBSON:   I am not intending to argue against it, although, your Honour, it is our submission that it matters not whether this is called a condition or a clause.

KIEFEL CJ:   No, it does not.  The question is, is it a condition under the IPA, under 6.1.31?

MR GIBSON:   Our submission is that it is not because it does not, in terms, require the developer to make a contribution towards infrastructure.

KIEFEL CJ:   I apologise, Mr Gibson, I had thought you were tending in the opposite direction.

MR GIBSON:   That is undoubtedly my fault, your Honour.  The position - that is what the point of construction of this raft of provisions is.  Does it operate, or do they operate so as to impose a legally enforceable obligation on the appellant?  The Court of Appeal held that they did not, and it is our submission that they did not, and it is further our submission that his Honour Justice McMurdo was entirely correct in his reasoning.  We do not seek to support the outcome by a different form of reasoning.

KIEFEL CJ:   But if that is the case, Mr Gibson, you would have to deal with the argument put against you as to whether or not what is called a condition has to be construed to give practical effect to it, along the King Gee lines, because Justice McMurdo appeared to be of the view that there was some ambiguity in it and seemed to accept what was then the accepted position of the parties that it was intended to operate as a condition, that is to say, the power given by the IPA had been entered upon and the question was whether or not it made it work.  I think that throws open - if you are going to say you adopt the approach that Justice McMurdo took, I think that would include accepting that there is some ambiguity in it. Is that your position?

MR GIBSON:   Your Honour, we do accept that there is a level of ambiguity in the wording, in that there are alternative constructions available.  It is, however, the position that upon a consideration of the issues to which the language of the provisions give rise, there is not only a sufficiently clear but in the circumstances a combination of considerations that collectively, strongly support the conclusion that this clause 13 and its counterparts did not act in the way – or operate in the way the appellant contends.

Your Honours, there are three elements of the wording of the provisions that are called out for this exercise.  If one takes, for example, condition 13, which is the illustration referred to by his Honour Justice McMurdo in the reasons for judgment in the Court of Appeal book, page 33, at paragraph 5 of the reasons for judgment, the issues that arise concern the correct construction of the words “shall apply” and the expression “at the time application is made” and, thirdly, the words “at due date of payment” in the second paragraph. 

Now, before the Court of Appeal, the appellants’ position was to support the reasoning at first instance which was to the effect that the provision imposed an obligation as at the time the application was made by which it was meant when the application was made - or expressed differently, as at the date the application was made. 

That was the basis on which his Honour Judge Everson proceeded and the appeal to the Court of Appeal by the Council was based in part on the submission that that conclusion was simply not reasonable ‑ was not a rational interpretation because of the obvious consequences it could have.  It was defended in writing before the Court of Appeal although in fairness to the appellant some different possibilities were put forward in oral submissions.

In our submission, the words “shall apply” were not effective to, and on their proper construction did not impose any legal obligation.  The reasons for that are firstly that this was a preliminary approval and, secondly, as the Court is well aware, a preliminary approval, although approving development, does not authorise development to occur.  In consequence, a later approval, namely a development permit, is required.  It is against that background that his Honour correctly concluded that the function of a preliminary approval is to provide a framework for the subsequent development permit which will permit development to take place.

KEANE J:   Mr Gibson, can I interrupt for a moment to ask in relation to that submission you are making now, do you see any particular significance in section 6.1.31(2) which speaks of:

For deciding the aspect of the application relating to the local planning policy, the planning scheme policy or planning scheme provision –

Does that chapeau have any effect in relation to your submission as to the limited scope of what is contemplated by (2)(c)?  Do not let me take you out of your argument.  Come back to it if you like.

MR GIBSON:   No.  The chapeau is consistent with the scheme of section 6.1.31 as a whole.  Subsection (1) identifies the circumstances in which subsection (2) applies and that is, as per subparagraphs (a) and (b) – I will not read them out – but note that (b)(i) requires that “the local government” have:

a local planning policy about infrastructure or a planning scheme policy –

and that of course is what the planning scheme policies 3A and 3B were.  It is against that background that subsection (2) more specifically directs attention by the opening words to the content then of, and operation of, subparagraph (c).  So, it is of relevance in delimiting the scope of operation of subsection (c) and, in our submission, is certainly not inconsistent with the submissions we are making.

KIEFEL CJ:   Mr Gibson, while you are interrupted, may I ask you this.  If, as you have said, your submission on the threshold question is that what is said to be a condition or conditions 13 to 16 are not in fact conditions under the IPA, what do you say they are?  What are they to be read to be?

MR GIBSON:   They are provisions that are included in the development approval, and they have utility for two reasons.  One, they notify the developer that it is the Council’s intention that infrastructure contributions will apply at such time in the future as a development permit is granted and, commensurately with that, as Justice McMurdo put it, at paragraph [25] of the reasons for judgment in the Court of Appeal at pages 37 and 38 of the core appeal book, where his Honour said that – I am sorry, paragraph [26] is the paragraph which I had in mind:

Each of these clauses must be interpreted by reference to the purpose and effect of a preliminary approval -

et cetera, and then the next sentence:

The effect of these clauses was that in the assessment of an application for a development permit, a contribution for infrastructure, according to the terms of the planning scheme policy in operation at the time of that assessment, would be required.

In that way, these clauses contribute to the framework which is represented by the development approval.  That is entirely consistent with the use of the words “shall apply”.  Those words were to convey that at a future time, namely when a development permit was granted, that contributions under the relevant planning scheme policies would apply.  That is consistent with the roll‑on function of the preliminary approval and it is consistent with the other…..of the development approval.

What…..role and the role of the conditions as providing framework – that of course appears from the preliminary approval itself, but it may be easier to refer to our written submissions at page 5 at paragraph 15 where we have reproduced some of the conditions which demonstrate the role and function of this preliminary approval.

The first condition, B1, is not immediately on point, because it concerns variations to the planning scheme.  But condition C4 expressly recognises that:

the conditions of this Preliminary Approval shall establish the planning framework for future development on the site –

and goes on to refer to future permits being:

subject to the level of assessment set out in the Table of Development –

and C5 is to the same effect in that it expressly provides to the effect that it:

is not for the detailed design or layout of the development –

Then, thirdly, in condition C7 that further:

Development Permits will be required –

for particular approvals.  C8 is probably by the by.  The wording “shall apply” is entirely consistent with that function.  Then we go to the second element, which is the subject of submissions in the provisions, and that is what is meant by the expression “at the time application is made for a development permit”. 

In that regard, the submissions that have been made by the appellant are very broad and all‑encompassing.  Understandably, they are not confined to the date at which an application for a development permit is made, but it is said that that expression is sufficient to encompass a wide range of events and potentially an extensive period of time including the Council’s consideration of the application, the Council’s decision upon an application, the potential for an appeal from any such decision by a third party, or, indeed, potentially by the appellant here.

In our submission, it is a most unattractive proposition, and it reflects a straining of the language of the provision in an endeavour to achieve a construction for the purpose of the appellant.  In fact, the expression is assisted, or the meaning that could be attributed to it, is assisted by section 3.5 ‑ ‑ ‑

KIEFEL CJ:   Mr Gibson, that might be a convenient time for us to break for lunch.  The Court will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Mr Gibson.

MR GIBSON:   Thank you, your Honour.  If I could turn to further consider the second aspect of the wording of the provisions using, as I am, clause 13 as the illustration, the expression at the time the application is made…..mean when or as at the date the application was made.  It contemplates the provision I could not find immediately before the luncheon break, section 3.2.1 of the Integrated Planning Act which is in volume 1 of the joint book of authorities at page 77 of the volume or page 159 of the pamphlet copy, and it simply identifies how section 3.2.1 – how an application is made for development approval and what formal requirements must be satisfied.

Any view other than that is what those words mean is, in our submission, a strained interpretation.  This is a notification provision that contributes towards the framework, as we have discussed before.  It does not impose an obligation and it does not expose the appellant to liability for a development offence, and so if there is thought to be doubt as to why the date of making the application was chosen, the answer is this is a provision that has not been worded with the same degree of precision or particularity as would be expected of a condition, by which I mean a condition imposing an enforceable obligation on the developer.

With respect to the third and final element, that is, the due date of payment, the appellant put forward what is, with respect, a veritable smorgasbord of alternatives.  They appear in paragraph 44c and d of the appellants’ written submissions at page 12, and also at paragraphs 10 and 11 of the reply submissions.  One only has to have regard to the alternatives to, in our submission, appreciate that this goes beyond a matter of ambiguity capable of being resolved by construction.  In the appellants’ own submission, it is contended that:

The conditions contemplate a “due date for payment”.

That, of course, is undoubtedly correct.  But then it is submitted:

This might be the date when, or a reasonable time after the date when, the Council calculates and requests or demands the payment. 

In oral submissions today, those alternatives have been further added to by the submission that the due date for payment is a date that is either as soon as possible after or within a reasonable time after a development permit is granted.

This range of alternatives is resorted to, it would seem, because quite simply there are not any – let alone any sufficient – contextual clues in any of this raft of conditions or provisions that enable a due date for payment to be ascertained as a matter of construction.  What the appellant is engaged in is, in truth, not an exercise in construction of these provisions.  It is a speculative exercise identifying possibilities and then seizing on ultimately one or two in oral submissions today that might best meet its purposes.

However, as against that, firstly having regard to the role and function of these provisions, the better interpretation is that it is a reference to a date which will be notified to the appellant as being the due date, in consequence of a development permit being granted.  Secondly, the fact that the due date is not stated, in our submission, tells against these provisions being held to impose a legally enforceable obligation on the appellant, having regard to the consequences that follow from the imposition of such an obligation.

Thirdly, under IPA section 3.5.21, which it is sufficient to note it – however, for the record, it is at page 114 of the joint book, and page 210 of the pamphlet copy – section 3.5.21 provides to the effect that there is what is called a “currency period” for a development approval…..four years.

So, the developer, assuming that the developer holds the property, has a period of four years within which to exercise the rights under the development permit.  There is no reason in those circumstances to infer, let alone to construe, these provisions as imposing an obligation to pay the amount of the infrastructure contributions as soon as possible, or indeed within a reasonable time after the development permit is granted.  That provision in 3.5.21 is reflected in the Planning Act section 85, and the Sustainable Planning Act section 341.

We have seen, this is the fourth point, that numerous of the other conditions in the preliminary approval do state a date or a point in time which is able to be calculated as the date for satisfying those obligations, this does not.

Finally, in this context, your Honour Justice Steward inquired of our learned friend what form would the conditions of the development permit take.  We are able to assist with that because in the respondent’s supplementary joint book of authorities Part D at page 2, using the pagination towards the bottom right‑hand corner, is the report of a judgment of the Queensland Court of Appeal in a case of Ashtrail v Gold Coast City Council, and the point is that it illustrates the very type of condition about which your Honour was inquiring, and that appears at page 11 of the volume, paragraph 18 of the reasons for judgment.

As it happened it involved the same local government, and as it happened it involves in this case water supply network infrastructure contributions.  It takes little more than a cursory comparison of the clauses 13 to 16 of this development approval compared with what was condition 5 of the development permit in Ashtrail to see the differences.  So, clause 5 of those conditions is emphatic.  They provide that the applicant must pay ‑ ‑ ‑ 

KIEFEL CJ:   Mr Gibson, forgive me for interrupting, but we are hearing some background noise which is rather distracting.  It could be coming from your end, or it could be from Mr Doyle’s end.  Could I just ask those who are with either of you to be aware of movements of paper and things like that, because as I say it is rather distracting.  I am sorry to interrupt you.

MR GIBSON:   Thank you, your Honour.  Referring to clause or condition 5 in Ashtrail, one notes at the outset the inclusion of the words “must pay” in the first line.  A reference to the same planning scheme policy 3A as a matter of interest, it is referenced in the conditions – or one of the conditions – in this case.  It refers to the rate current at the due date for payment, but then it goes on to identify a date for payment and the date is not a fixed date and that is not surprising. 

It is stipulated as a date prior to the earliest of a series of events, and, again, further to the point that I made about the currency period of an approval, none of those events, it may be accepted, occurs immediately after or even within a reasonable time after – at least not necessarily so – the grant of a development permit.

To the contrary, the endorsement of survey plans and the issuing of a certificate of classification for building work, for carrying out the final plumbing inspection, or the commencement of the use of the premises, are all events that one may expect to occur depending on the developer’s conduct for some years after the approval is granted.  Then, beyond that, the next sentence identifies the amount of the contribution current at the date of the approval.

Your Honour, I might say that we too can hear noise now, but it is not coming from where I am speaking. 

The reason for stating an amount current as at the date of the approval as distinct from the amount that would be payable in accordance with the previous paragraph is for the probably self‑evident reason that the planning scheme policies, their rates are updated to reflect inflationary adjustments and the like, so the figure that is stated there is really a guide.  The point of this is simply to illustrate what one would expect a condition imposing an infrastructure contribution to contain and the absence of those factors from each of these conditions is telling. 

STEWARD J:   Can I ask, are you able to ascertain from this decision whether it involved a case where there was a preliminary approval as well?

MR GIBSON:   We might take a moment to determine that, your Honour.  It is not necessarily going to be evident from the reasons for judgment, and we are not conscious of that in our perusal of the reasons for judgment. 

STEWARD J:   Thank you.

MR GIBSON:   So, as we have submitted in our written submissions at paragraph 35, particularly subparagraphs (b) and (c), Sunland does find itself in a position whereby, although submitting that there are ambiguities which are capable of being resolved as a matter of construction, in fact the circumstances that exist are similar to those that gave rise to the observations of Justice Talbot in the New South Wales Land and Environment Court in the case of Gough & Gilmour v City of Holroyd.  It is to be found in the joint book of authorities volume 5, Part D at page 1343. 

Though the facts are of no particular moment we invite your Honours to go to page 1349, paragraph 19, I think, of the reasons for judgment.  His Honour noted that the developer in that case called in aid the principles in Ryde Municipal Council.  I will return to that later, but for present purposes the point which we wish to refer to commences on the fifth line with the sentence, “The difficulty with the present case”. 

In our submission, those observations apply to the appellants’ submissions here.  It is not simply a question of construing conditions.  Given the range of alternatives particularly evident in determining what is the meaning of the expression “due date for payment” in these provisions, the Court is in fact being invited to redraft the provision. 

As to that, we have two answers.  Firstly, that is well beyond the scope of the constructional exercise.  Secondly, it is simply not necessary because the exercise is sought to be engaged in on the footing that the provision is a condition – we submit it is not – and in an attempt to give meaning to it when the degree of certainty that would be required for a legally enforceable condition is simply not achievable.

As this Court noted – we have referred to it in our submissions but it is not in the bundle – in Taylor v The Owners – Strata Plan No 11564 253 CLR 531 in the joint judgment of Chief Justice French, Justice Crennan and Justice Bell at page 548, paragraph 38, there was a discussion of the circumstances in which…..could be filled either by omitting words or adding words and the point simply made there is that it:

involves a judgment of matters of degree.  That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision.  It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.

At paragraph 40 their Honours referred to the speech of Lord Diplock in the case of Wentworth Securities Ltd v Jones [1980] AC 74 at pages 105 to 106 where his Lordship made what might be regarded as the self‑evident but nevertheless important observation that construction is not judicial legislation. We have noted also the observations of your Honour Justice Keane and also Justice Gageler in the same case, particularly at paragraphs 65 and 66.

Then we note your Honour Justice Gordon’s reference to King Gee, and we of course have referred to King Gee and call it in aid of our position and the submissions we have made – and that is particularly at paragraph 35(a).  In the circumstances in which the appellant submits that these provisions ought be construed as conditions, it is our submission again that this is not simply a question of ambiguity capable of resolution by ordinary principles of construction.  Rather, the situation is reached, as was addressed by his Honour Justice Dixon in both King Gee and Cann’s v The Commonwealth, the power to levy infrastructure contributions has not been pursued and is not well exercised.

KIEFEL CJ:   Do I take it, Mr Gibson, that it is your submission that the power given under the Integrated Planning Act to impose conditions was not entered upon at all by the Council?

MR GIBSON:   With respect to these conditions 13 to 16?

KIEFEL CJ:   Yes.

MR GIBSON:   Yes, your Honour, that is our position.

KIEFEL CJ:   Yes, thank you.

MR GIBSON:   That does not deprive the conditions of utility, contrary to the appellants’ submissions, for the reasons we have given.  But it does not give them the operation for which the appellants contend.  Now, there are a couple of other aspects that I should address for completeness on these issues.  The first is, of course, although one knows the rates that are applicable to various categories of development under the planning scheme policies – the Court was referred to policy 3A, which is in the joint book of authorities, volume 7 of 7, Part E, and one of the so‑called integers is stated in the policy, being the rates that apply and the conversion rates, and that is evident, for example, from the table appearing on pages 43 and following.  What one does not know at the time of a development approval, and one cannot know until such time as a development permit in obtained is ‑ ‑ ‑

KIEFEL CJ:   Did you mean planning approval, Mr Gibson?

MR GIBSON:   I did ‑ ‑ ‑

KIEFEL CJ:   Did you mean to say planning approval?  No, you said development approval.

MR GIBSON:   Well, development approval in the form of a development permit, your Honour, yes.  A planning approval in the form of a development permit.

KIEFEL CJ:   Yes.

MR GIBSON:   But noting the distinction between a development approval and a development permit.  It is not until such time as a development permit is obtained that one knows…..that will apply.  So, one knows one part of the calculation – that is, the rates that apply.  But one does not know the second – and there may be more factors – but certainly a second and critical element or integer, knowledge of which is necessary to enable the amount of the infrastructure contribution to be determined.

It seems – or I will put it this way, there is no reason, no purpose that would be served by purporting to impose on a developer a legal obligation to pay an unspecified amount of infrastructure contributions at an indeterminate future date.  There is no policy outcome ‑ ‑ ‑

KIEFEL CJ:   Under the Integrated Planning Act section 6.1.31, subsection (2) is said to apply where there is a decision regarding a development application – which of course can be either an application for a planning approval or a development permit.

MR GIBSON:   Yes.

KIEFEL CJ:   Do I take it from what you are saying that you are saying that…..subsection (2) can only really apply to…..development permit because a local authority would never be in a position to do what is required by subsection (2)(c) until that point. 

MR GIBSON:   Your Honour, it may be possible to envisage a circumstance in which, for a small or very particular type of development, section 6.1.31(2)(c) would be capable of applying even to a development approval.  However, that said, we cannot immediately put forward an example of such a circumstance.  So even though, as worded, the provision is capable of applying to both a development approval and a development permit – in practical terms, its practical operation would be limited to a development permit.  That is illustrated, if I might say, by section 3.1.5, which is at page 74 of the pamphlet copy, and page 72 of the volume; where it is stated in subparagraph (1) that:

A preliminary approval approves development –

and then there is the editor’s note under subparagraph (2) which really identifies in most cases, almost all cases, the practical utility of a preliminary approval – and of course, that is exactly the situation that applies to the appellants’ application and in such a case ‑ ‑ ‑

GLEESON J:   I am sorry to interrupt you midstream.  My question concerns this reference to due date for payment conditions, and how that applies in relation to the relevant policies.  I am looking in particular at the water supply network developer contribution policy, which is at Part E, volume 7, page 1711, and thinking about the condition that you took us to recently, it talks about the contributions being adjusted at the time for payment. 

That suggests to me that a contribution is levied on the basis that a developer will have a choice about whether to…..or not, but it will be calculated at the time for payment, but the clauses that we are looking at here seem to suggest, on Mr Doyle’s case, that the Council had a power to impose a due date for payment.  Is it your case that the power in 6.1.3(2)(c) includes a power to fix a due date for payment, or is that an indicator that the clause is really not imposing a contribution under the relevant planning policies?

MR GIBSON:   Your Honour, we incline to the view that it would be the latter, but I am not sure that there is a necessary inconsistency between the two.  Your Honour took us to page 1711.  It is an indexation provision in 3.5.  What it does is state that the contributions are “calculated in June 2004 dollars” and then provides for adjustment “at the time of payment” to reflect CPI movements.  It does not in terms determine a date for payment and…..because this is a policy which would inform the decisions that are made by the local government ‑ ‑ ‑ 

GLEESON J:   But the policy does not seem to say anything about how one would identify the due date for payment.

MR GIBSON:   No ‑ ‑ ‑ 

GLEESON J:   I am rather thinking that – but I may completely misunderstand the context here – the developer could not be obliged to pay within 14 days of the development permit, for example, but maybe that is not correct – but there certainly does not seem to be anything in the policy which sets parameters around when a due date for payment would be set.

MR GIBSON:   That is correct, and perhaps I need to revise the answer I proffered earlier, but this being a policy and a policy which does not address that issue, it would be within the purview of the Council in imposing the conditions of a development permit to stipulate and take the payment and all conditions are subject to a statutory requirement that they be reasonable and relevant, and were the Council to impose a condition - well, for example, that the payment of the infrastructure contribution is to be made within 14 days of the development permit issuing, other than in an extraordinary situation it would be difficult to uphold such a condition as reasonable or relevant having regard to the currency period to which I have referred.

So that is why it would seem the condition in Ashtrail nominated a sunset date, for want of a better word, being the earliest of the dates on which identified events would take place.  I hope that addresses your Honour’s question, but I am happy to deal with it further if I – so the other aspect of this policy that is important in determining the construction exercise is that your Honour directed attention to the flow chart.  What I am looking at is at page 1735, but there is another, 1736. 

It is rather difficult to read some of the entries in this document, but if one starts at the top – I am looking at 1735 – and it breaks into two and then ultimately three and four columns and there is a column which is headed “Assessable ET” and as one moves down that column we see a box which is about five boxes down which has the wording “Identify yield factor for the development from” - I cannot quite read the rest; it is something “Appendix A”.  Then over to the right there is another box which says:

If developer believes the yield factor to be unreasonable, then the developer may apply to Council for a relaxation of the yield factor at the developer’s cost.  CEO or delegated officer is to determine if policy yield factor is to be used or revised.

The point I simply wish to make in that context is that it is evident that the determination of infrastructure contributions, even if one does know all of the integers or elements that feed into that calculation, under this policy it is still not simply a mathematical exercise because provision is made for intervention by the developer if the developer is of the view that at least one of the factors, a yield factor that has been adopted, is unreasonable, it again, in our respectful submission, is a contributing consideration to the conclusion that these particular provisions should not be understood as operating as conditions under section 6.1.32 – or 31, rather. 

One might say that they do have utility though, apart from the reasons I have mentioned, because section 6.1.31(2)(c) authorises the Council to impose conditions on a development approval that might require either land or works or a contribution towards the cost of supplying infrastructure under a policy, and each of these provisions makes it clear that what the Council will be looking to in due course is the provision of a contribution, that is, a financial contribution, to be calculated pursuant to the planning scheme policy rather than the provision of land or works.  The further matter to which we refer is this contra proferentem principle.

KIEFEL CJ:   Well, I think that Mr Doyle has said that in its reference to the contractual sense that is not pursued, and I think he summarised the general sense in which something like that applied in the public law sense is ‑ ‑ ‑

MR GIBSON:   Yes.  Your Honour, the analogy in the public law context was that indicated by the passage from Gough & Gilmour to which I referred earlier.  That was at volume 5 of 7, page 1349.  In the first few lines his Honour Justice Talbot referred to two cases:  Ryde Municipal Council; and one which is difficult to pronounce so I might simply call it the Logan City Council Case.  Both of those are well‑established principles and are referred to in our primary submissions - at paragraph 30 of our written outline. 

We there, I must say, had something of a quibble with respect to the principle as stated in the Logan City Council Case, but on reflection there is no material difference, it would seem, between that formulation and the formulation in Ryde Municipal Council.  The formulation as shortly stated – and this appears again at paragraph 30, page 10 of our written submissions where Justice Else‑Mitchell observed quite simply:

“Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.”

The statement of principle proceeds on the footing that the provision under consideration is indeed a condition.  It is of no material assistance if the Court accepts our submission that these provisions are not conditions.

But in any event, there is a deeper concern with the issue, that is, even if that principle were to applied, as we have again observed in our written outline, to say that the Council must take the consequences of any failure to specify accurately the conditions to which a consent is subject, and one seeks to apply that principle to the circumstances of this case, particularly the clauses in question, one would think that the consequence is that the Council’s attempt to impose a condition has failed.

The consequence is not that for which the appellants contend.  The appellants’ contention boils down to an attempt to use this statement of principle as a springboard from which to embark on the wide‑ranging – and in our submission, unacceptably so – constructional exercise.  But that is not how this principle applies, certainly to circumstances of these conditions.

So, for all of those reasons, it is our submission - I return to the point that Justice McMurdo was correct to conclude at paragraph [25] of the reasons for judgment in the Court of Appeal at core appeal book pages 37 over to 38, and at paragraph [26], that:

these clauses must be interpreted by reference to the purpose and effect of a preliminary approval –

which purpose and effect his Honour had earlier correctly concluded at paragraph [19] of the reasons for judgment was to establish:

the framework under which applications for development permits for the land were to be assessed.

The consequences that follow from that conclusion are, relevantly, that there is no foundation for the appellants’ submission that these clauses impose an obligation on the appellant and that, as a matter of construction, the condition both obliges the appellant and entitles the respondent to payment of infrastructure contributions pursuant to the planning scheme clauses.  That was a topic that was to be finally addressed at such time as the development permit was granted.

If I can return to the point your Honour Justice Steward raised with us earlier, as to whether the application for a development permit in Ashtrail was preceded by the grant of a preliminary approval, a development approval in the form of the preliminary approval, the…..your Honours, and the answer to that is no……paragraph [9] note that at a particular date someone:

lodged another development application seeking development permits for a material change of use.

Then at paragraph [13] it is noted that at a later date:

the Council gave a Decision Notice approving the application –

There is simply no reference to the preliminary approval, not that such a reference would have been necessary, but one might have expected it by way of background had there been one.  We are content to proceed on the footing that there was preliminary approval in that case.

STEWARD J:   Thank you.  Could I ask you a question while you are there.  What is going to happen about the credits?  Is there some mechanism like a Planning Act for the credits to be acknowledged and recognised or is this just a…..

MR GIBSON:   No.  Well, plainly, in our submission, the Council could not gain a windfall.  Well, there are two answers to your Honour’s question.  There are no provisions in the Planning Act that recognise credits which have been previously accrued.  However, it does not follow that the Council would accrue a windfall benefit or at least not one that it could retain were it to derive a windfall in consequence of the supervening statutory regime.  It would be entitled to disgorge it, if it did not do so voluntarily; that is the position in that regard. 

That takes me then, and I can deal with it briefly, to the notice of contention, but proceeds on the footing that our primary submissions are not accepted and we have set out in the written submissions a brief review of the changes in the statutory regime as they evolved over the years.  In fact, however, a more comprehensive and undoubtedly more erudite review appears in his Honour Justice McMurdo’s reasons for judgment. 

As his Honour points out ‑ and I am looking now at paragraph [27] of the reasons for judgment and following on page 38 of the core appeal book ‑ the Sustainable Planning Act, which commenced on 18 December 2009 largely reproduced the provisions of the Integrated Planning Act with respect to, relevantly, preliminary approvals.  That appears in the Sustainable Planning Act at section 241, which is at page 134 of the pamphlet copy, I believe, and page 490 of volume 2 of the joint book of authorities, and paragraphs 241 through to 245 reproduce earlier provisions of the Integrated Planning Act.

However, as his Honour noted, paragraph 847, which is at page 538 of the pamphlet copy and 636 of the volume, applied to continue, or to say that in circumstances in which, immediately before the commencement of that Act, local Government had a planning scheme policy about infrastructure, which is the case here, then the infrastructure contribution required by the policy could be calculated in various ways, but by subsection (6), if the local Government had an infrastructure charges plan, then – and there was an inconsistency, then it was that plan that prevailed, and it established a sunset date.  The sunset date that was included in the relevant provisions in the Integrated Planning Act was 30 June 2008, but that was extended to 30 June 2010.

His Honour notes that 847 broadly corresponded with section 6.1.20 of IPA, I am looking at paragraph 30 of the reasons for judgment.  That is because this change to what became known as the adopted charges policies, and the termination of the scheme or regime whereby infrastructure contributions were imposed by conditions on approvals, that was replaced by the issuing of infrastructure charges notices.  So infrastructure charges were no longer imposed by way of conditions on an approval, but by a separate procedure.

That is indeed what happened when the Council gave its permits to Sunland in 2016, in July and December.  The agreed statement of facts, which is in the appellants’ book of further materials at page 41, notes at paragraph 19 that:

Between 17 July 2016 and 8 December 2016, the Council resolved to grant the development permits to Sunland in respect of‑

various applications it had made, and at paragraph 20, it is stated:

The Council also issued what purported to be infrastructure charges notices to Sunland in respect of each application.

That is what brings us to Court because there was an admittedly considerable quantity and value of infrastructure credits that had accrued under the previous regime.  Sunland still obtained credits but not in the amount that it says it was entitled to under the previous regime and that is why these proceedings have been brought.

To move on, in due course, in 2011, as his Honour notes at paragraph [32] of the reasons for judgment at page 39 of the core appeal book and over to page 40, the Sustainable Planning Act was itself then subject to substantial amendment, at least in relation to infrastructure charges, in 2011.  New provisions were inserted and they included relevantly section 630, which conferred a power to adopt charges, known as “adopted charges” by resolution and that for such charges to provide for trunk infrastructure for development.  Then the subsequent provisions of the Sustainable Planning Act at page 384 of the pamphlet copy and following concerned charges resolutions.

It culminated at section 635, which was the provision under which the Council gave the infrastructure charges notices to Sunland and that was to the effect that a development approval – in this case development permits now – was given and an adopted charge applies, as it did, then the local government must give the applicant an infrastructure charges notice.

His Honour then noted section 880 of the Sustainable Planning Act and his Honour reproduced the provisions, having noted in particular subsection (2)(b) of section 880.  It provided from subsection (1) that on a date which had certainly passed by 2016 a local government, subsection (2)(b), must not:

impose a condition under a planning scheme policy to which section 847 applies.

Then, by subsection (3), it negated the operation or qualified the operation of subsection (2) in a limited way because by subsection (3)(b), relevantly subparagraph (ii) it was provided that the earlier subsections did not stop a local government:

collecting an infrastructure contribution payable under a condition lawfully imposed under a planning scheme policy to which section 847 applies.

Now, his Honour noted at paragraph [35] of the reasons for judgment, at page 41 of the core appeal book, the statements in the explanatory notes.  His Honour adopted in later paragraphs the statement to the effect that subsection (2) effectively switches off the ability to impose a condition:

under a planning scheme policy to which section 847 applies –

from a particular date.  His Honour noted at paragraph [36] that this was the point of departure between the Council and his Honour Justice Everson, the primary judge in the Planning and Environment Court, because at first instance the judge proceeded on the footing that section 880(3), particularly (b)(ii), effectively saved the position – that is, saved the position for Sunland – because the effect of the clauses 13 to 16 was indeed to impose an obligation to pay infrastructure charges and that by virtue of section 880(3), Sunland was entitled to declarations that the Council did have power to collect infrastructure contributions under conditions 13 to 16 and it had no power to issue an infrastructure charges notice under what was by that time the Planning Act. 

Those declarations are reproduced at paragraph 12 of his Honour’s reasons for judgment and elsewhere, at paragraph [49], his Honour reproduces the two paragraphs from the primary judge’s reasons for judgment that his Honour the primary judge relied on to make the declarations. 

Now, as to that, his Honour Justice McMurdo concluded, with the concurrence of the other members of the court, that the primary judge had erred in both his interpretation of the conditions and also his interpretation or application of section 880.  His Honour Justice McMurdo dealt with this at paragraph [45] of the reasons for judgment, page 43 of the core appeal book.  In fact, that paragraph notes something else I omitted to refer to earlier, namely that the primary judge had been taken by the fact:

that the Council had continued to publish up‑to‑date rates for the planning scheme policies –

as indeed it continues to do.

KIEFEL CJ:   That is not…..by the appellant though, is it, Mr Gibson?

MR GIBSON:   Well, it gets a mention in the appellants’ submissions.  But there is a short answer to it, and that is – well, there are two answers.  The first answer is, as I have indicated earlier by reference to the planning scheme policy itself, the fact that rates are continued to be published only addresses half the issue because without knowing the rest of the story one cannot actually apply the rates in the policies. 

But as to the reason why the policies - rates continue to be published that is simply a matter of speculation.  The appellant, it would appear, invites the inference that these rates are kept alive because of either this preliminary approval, or perhaps others, but there is, we would submit, a more obvious explanation and that is that there are permits still extant to which conditions of approval included the requirement to pay infrastructure contributions under the planning scheme policy, and even though the legislative scheme has since changed, those conditions are still on foot and still require the ongoing publication of rates.

Now, there is no evidence to that effect, but it is a sensible and likely explanation, and is at least as likely as the conjecture put forward by the appellants.  But returning to the reasons for judgment, I need only really observe that his Honour at paragraphs [45] to [55] at least, rejected the primary judge’s approach, and in particular his Honour refers again to the “switching off” - this is at paragraph [51] of the reasons for judgment:

The effect of s 880 was to “switch off” the Council’s ability to impose such a condition.  Absent such a condition, no amount could become payable in accordance with the planning scheme policies.

The next paragraph of relevance to the notice of contention is paragraph [52] of the reasons for judgment and that deals with the operation of section 880(3).  His Honour pointed out, correctly, in our submission, that it:

clarified, rather than qualified –

I think said “qualifying” earlier:

the effect of s 880(2) -

and, importantly:

It preserved the Council’s position where there was an infrastructure contribution already payable under a condition –

one might interpolate “already”:

lawfully imposed under a planning scheme policy to which s 847 applied.  It provided that s 880(2) did not prevent the Council from collecting such a contribution.

Bu, his Honour continued, that did not assist Sunland in this case because, in the last sentence of paragraph [52]:

no infrastructure contribution was payable by force of the Preliminary Approval –

and, therefore, there was nothing to which section 880(3) could attach.

Now, pausing there, we have to note – pausing there, yes, the statutory scheme evolves further with the commencement of the Planning Act.  It is in volume 1 of the joint book of authorities.  It commenced operation on 3 July 2017 and his Honour refers to the Planning Act at paragraphs [37] and following of the reasons for judgment.  His Honour starts with section 286 to which reference has already been made both in the written submissions and ‑ ‑ ‑

KIEFEL CJ:   Mr Gibson, forgive me for interrupting you, but I think you can take it that we are familiar with the reasoning of his Honour and I understand that for the purpose of the notice of contention that you adopt and rely upon his Honour’s reasoning.  Is there anything you wish to add in addition to his Honour’s approach?

MR GIBSON:   No, your Honour, there is not.  It culminates in this, that it is our submission that in consequence of the changes to the legislative regime effected by amendments to the Sustainable Planning Act in 2011 and by the commencement of the Planning Act in 2017, the Council is now obliged to issue – or rather I will put it differently – the Council is obliged to impose infrastructure charges by the mechanism of an infrastructure charges notice and not by virtue of conditions imposed under a previous preliminary approval. 

In our submission, therefore, if the appellant’s submissions as to the proper construction of these provisions prevails, then nevertheless the statutory scheme precludes the imposition of conditions on this preliminary approval…..pursuant to the preliminary approval.  Those are our submissions, if it please the Court.

KIEFEL CJ:   Yes, thank you, Mr Gibson.  Do you have anything in reply, Mr Doyle?

MR DOYLE:   Yes, your Honour.  Can I start with the power question under section 6.1.31 of IPA.  His Honour Justice Keane asked a question about the operation of the chapeau to subsection (2) and I think everyone has asked a question about the operation of subsection (2)(c).  The section refers and applies to a development approval.  It does not choose to refer – that is, subsection (2)(c).  It does not choose to refer to a development permit but rather uses the language which is defined in the statute to include both a development permit and a preliminary approval.

So that is the first indication from the language of the section that it is not confined to a development permit.  The language of the chapeau is that it is concerned with the application for such a thing, which relates to the local planning policy, the planning scheme policy, or the planning scheme provisions.  They are defined throughout the document but extend to include a policy of the kind – policies of the kind with which we are concerned here, that is, infrastructure policies. 

So, the thing which the chapeau professes to operate on is an application relating to, amongst other things, the policies which seek to make provision for infrastructure charges.  So that as a matter of the language of this section and, indeed, the other things we have taken you to, there is no anterior issue of it only applying to a development permit.  This is a power which confers on the Council the ability to do something in respect of either the preliminary approval or the development permit or both.  That is our primary submission.

Our learned friends then want to – sorry, I will come back to deal with some construction issues later, and I do not want to oversimply the case put against us, but the principal challenge is to the failure to identify the due date for payment.  If the preliminary approval had been clear about the due date for payment, if it had said “payable no later than 30 days after the issue of the decision notice approving the development permit”, so that we overcame the uncertainty or ambiguity which is implicit in the language used here, there can be no doubt in our submission that that would fall within the power conferred by subsection (2)(c) - a preliminary approval which contemplates conditionally upon the grant of a preliminary permit an obligation to pay 30 days later in accordance with certain policies.  So, the language of the section is suitable to the imposition of a condition of that kind at least in the preliminary approval. 

Now, we recognise that there are some uncertainties or ambiguities in the particular conditions with which we are concerned.  But can I ask your Honours to go back to what was said in the King Gee decision, which is in volume 4 of the joint bundle.  I wanted to take your Honours to page – I am sorry, in the report at page 197, or in the book at page 863 because it is defining the approach to the question of whether uncertainty in the exercise of the power of this kind renders the power – that is, the exercise of the power – ineffective because it is invalid.  His Honour…..about line 22:

It needs no imagination to see that in drafting an order for the fixing of prices for an important trade many difficulties must be encountered and it would be impossible to avoid ambiguities and uncertainties which are bound to arise both from forms of expression and from the intricacies of the subject.  But it is not to matters of that sort that I refer.  They depend upon the meaning of the instrument and they must be resolved by construction and interpretation as in the case of other documents.  They do not go to power.  But it is another matter when the basis of the price, however clearly described –

and so on.

Now, that is the proposition that we were advancing in the course of our primary submissions.  Uncertainty does not go to the invalidity of the exercise of the power unless it can be said the power has not been exercised at all.  That, too, is to be, in these cases, understood against the approach which everyone accepts of reading planning documents of this kind in a practical, common-sense way to give them some effect. 

Now, there are essentially two broad aspects which are put against us as rendering the exercise of the power so uncertain that it cannot be an exercise of the power.  One was the use of the expression “the time the application was made”.  We have addressed your Honours as to what we would say that can mean.  It can either mean at the time it is lodged, or in a broader sense.  But, and our friends point to a provision of IPA which says it is made – that those provisions which talk about making an application properly by a certain form. 

Assume that to be so, assume it means the day it was lodged.  Contrary to what we would urge is the sensible - ultimately the sensible construction of it, because the conditions say that the contributions shall apply to that date, but the sum to be paid is to be calculated in accordance with some policies at the due date for payment.

So, however one describes the content of the words “at the time the application is made”, it is ultimately not going to make any difference to the outcome of the construction of this clause.  What makes a difference is the proposition that our learned friends have advanced, that in order to know what the equivalent tenements are, in accordance with the policies, so as to apply the policies, you need to know what has been approved.  We accept that that is the most likely construction. 

When you read these provisions with the policies which they engage, you need – for the reasons I took you through when I went to the policies – to know what the ETs approved are.  That is true even if before you get to what ETs are approved there…..developer to engage with the Council about it.  The end of the process is the ETs are identified and the conditions then say that the contributions are to be calculated at the date on the basis of the application of the rates in both policies which apply to the known ETs and at the due date for payment.

Put aside for the moment the due date for payment.  The language of the conditions, by reading them together with the policies, enabled you to identify what the ETs being referred to are, given whatever view one takes as to the expression “the time at which the application is made”.  The point about the expression “the time at which the application is made”, which favours our construction and is contrary to the Council’s, is that what we are told is that the contributions apply at that time, whereas our learned friend’s construction requires you to understand this condition as saying it does not apply at that time, it will apply if and when some future condition is imposed.

Our construction can live with whatever view your Honours were to conclude about the meaning of the words “the time at which the application is made” because it does not affect the ultimate outcome.  But it is inconsistent with anything the Council has to say because the Council requires you ignore those words which presently say, “contributions shall apply at that date”, whereas, necessarily, their view is that contributions shall only apply at some other date if required.

We then come to really, the final ambiguity which is said to be the due date for payment.  When the matter was – in a sense this does not matter much, but when the matter was raised before his Honour Justice Everson, no one addressed the question of uncertainty.  The contention being advanced by the Council was that these things were conditions, but they were displaced by the operation of the Sustainable Planning Act and there was no question of uncertainty raised until we got to the Court of Appeal in a way which we described in our reply submissions. 

In our reply submissions, and in our submissions orally, we advanced different views as to what the expression “time at which the application was made” might mean to identify that there is an uncertainty to be resolved by the usual processes of construction.  I will not repeat what we have said.  I should say, though, that none of those alternative views were the subject of any discussion by the Court of Appeal, that is the different meaning we attribute to the expression “time at which the application was made” as encompassing not simply the lodgement but the process was not adverted to in the Court of Appeal’s reasons. 

Similarly, in respect of “the due date for payment” it is said we put forward a number of options.  It is true it is capable of meaning immediately, within a reasonable time – which would probably be the right construction but for the operation of the Statutory Instruments Act and the Acts interpretation Act.  But given that we do have those provisions which the Council accepts – in fact the Council has certified - this approval requires - reads “the due date for the payment of the sum” as meaning as soon as possible. 

Now, if it is right to say that the policies can only be given effect to once you know what the ETs are, then that can only be once the development permit is issued and then the expression “the due date for payment” means as soon as possible after the issue of the development permit. 

GLEESON J:   Mr Doyle, would you resist a reading of the word “apply” in condition 13 as be levied?

MR DOYLE:   Probably, your Honour, because “levied”  assumes some process of calling for payment and if the expression “the time at which the application is made” is to be understood in the way “at the time it is lodged”, then that gives rise to some difficulties.  If it means that, there are ways of construing the clause to give effect to it, but you would in effect have to read the application of the policies as referring to the equivalent tenements applied for, as distinct from the equivalent tenements approved. 

That is not consistent with the language of the policies for the reasons I have already shown you, but also has the element of surprise or is “remarkable”, as the Court of Appeal said, which makes you take a different position. 

Rather what it does, in our submission, is to articulate the imposition of the obligation.  When you apply you come under an obligation to pay the sum which is calculated in accordance with these policies upon the ETs being determinable so that you can apply the policies. 

The reliance we place upon those words is, as I have already said, to show that it applies without more, without there being some other step being required to be taken which is the imposition of a second set of conditions, whereas the contrary view is to ignore those words and say they cannot mean anything and that the contributions only apply if we, the Council, decide to impose them in the development permit, which is plainly inconsistent with the language of the conditions.

So, the approach we urge is one which, consistently with what Sir Owen Dixon said, looks to resolve the ambiguities and uncertainties by the orthodox means of construction, and to give a practical effect to the conditions.  Doing so, in our submission, requires some consideration, obviously, of the context to which we referred and the policies, but gives rise to a practical effect which we are told is the very thing one should do with these kinds of approvals.

The contrary position is despite it said to give no practical effect at all for these conditions this preliminary approval contains a raft of conditions, but of all of them we are told these four are merely some non‑binding indication of the Council’s future intention and there is nothing in the language used which suggests that to be the case, quite the reverse. 

The reference in each of the conditions to the rates to be calculated in accordance with the policies is sufficient to identify those things which are required as the formula for the calculation of the sum view once those ETs are known and they are known by the issue of the development permit. 

Your Honours were referred to the decision in Ashtrail in the Queensland Court of Appeal which, in those respects, does no more than identify that the Council sometimes drafts its conditions better than…..Really, there is no point of principle in that case which will assist the determination of this one, one way or the other, recognising, as our friends do, that the question in this case did not arise in that one because there was no – this was not a condition of a preliminary approval. It was a condition only of a development approval. 

Our friends also referred you to the decision in Gough & Gilmour, which perhaps I should take you to - that is in volume 5 of the authorities bundle.  Our learned friends rely upon – I am sorry, it is at page 1343.  Our learned friends say that what you are really being asked to do is, consistently with what his Honour said, not to interpret a document, but rather fill a gap for something which has been omitted.

Now, we suppose that every time a court construes an obligation where the time for performance is not stated and infers that it is to be a reasonable time or infers by reliance upon the statutory provisions to which we have referred, it is filling a gap which is not stated in the words.  But the discussion in Gough’s Case is far removed from the present one.

When your Honours have an opportunity to read the case, his Honour goes on to deal in the orthodox way with taking into account the context and the words used, in order to give content to the meaning of the expression “the easement” in favour of the council and would have said what it meant, even though those words do not appear in the language of the condition itself – but said he did not have to, because of the limited relief which was sought by the applicant in that case.

So, the applicant sought the relief only to the effect that a particular form of easement satisfied the condition and his Honour was not, therefore, prepared to consider what different form of easement would have done so.  But it is undoubtedly the case that the approach for the…..is one of looking beyond the uncertainties and ambiguities of the clause, to give it content in the way we urge is required as a matter of construction and to give it practical effect – and would have done so, had the relief being sought been a broader one.

Can we now move to the question that my learned friends were asked about the capacity to give us ‑ that is, to give the appellants ‑ credit for the credits.  There is no provision in the Planning Act which permits that to occur, as I think our friends rightly conceded.  If your Honours would please take up the appellants’ further book of materials to the statement of agreed facts at page 41.  Would your Honours note paragraph 21, so that in respect of the past approvals which the Council had at that stage granted us, the notices…..did not allow the credits, but more importantly at paragraph 24:

To progress the development on the land, Sunland will seek further development permits under the Planning Act 2016 (Qld), and the Council intends to levy further charges without reference to the conditions in the Preliminary Approval.

So that the thing which brought us before his Honour was future applications made under the Planning Act in respect of which we were told by the Council that they intended to levy charges without reference to the conditions, which are the only things which confer upon my client entitlement to a credit. 

We note what our friend said, but the issues before the Court do not reveal any mechanism by which the credits either have been provided to us or are to be provided to us, and certainly not the credits to be determined in accordance with the conditions.

That brings us very briefly to our learned friend’s reference to section 880.  I have touched upon this already, but it is right to say that when the Sustainable Planning Act was in force some applications for development permits were made by my side.  But the dispute between us, as you have seen from paragraph 24, concerns applications yet to be made under the Planning Act in respect of which we sought the declarations to the Council’s obligations and our rights.  So that in a sense nothing which is provided in the Sustainable Planning Act is relevant to the matters before you, unless the effect of the Sustainable Planning Act is to render invalid the conditions of the preliminary approval.

Now, the effect of section 880(2), as our learned friend read it to you and as the language shows, is to preclude the imposition of a condition.  If we are right, you do not need a second condition.  Then the prohibition on the imposition of the first condition is irrelevant.  We draw support from the language of section 880 (3) which says despite the prohibition on imposing a new condition, the Council can cover the money under a lawfully imposed condition. 

That is why we submit this section is irrelevant to the determination before your Honours.  If the conditions we are concerned with are conditions and if they do not require an order to be given effect to the imposition of a further condition, section 880 is silent.  If they do require the imposition of a second condition in order to have any effect, we accept that cannot be done, and that is the controversy.  But if we are right, there is no occasion to consider the imposition of a fresh condition because none is required.

Can I align to that finally our learned friend’s adoption of the Court of Appeal’s reference to section 880 switching off the capacity to impose a

new condition as being relevant to the notice of contention, which we understood Mr Gibson to say.  It is, of course, irrelevant to the notice of contention.  The notice of contention arises if they are right that these are conditions and that their operation is preserved according to their terms and effect by section 286 and if that is right, it is irrelevant whether there is or is not a capacity to impose a fresh condition because these conditions have already been imposed.

The notice of contention therefore invites really a different question.  If you have two provisions, section 119 and section 286, giving effect to these conditions, which are in conflict, how do you resolve it?  So that the switching off of a capacity to impose a fresh condition as being not relevant is the premise on which the notice of contention proceeds.  So it is quite misplaced for our friends to say that section 880 is relevant at all to the notice of contention.

It only arises because Justice McMurdo saw it as critical and as being determinative.  In the way he described it initially, it cannot be.  If they are right about the effect of these conditions, section 880 never arises and if they are wrong about it the only relevance of section 880 is that the Council can no longer impose a new condition and…..  Your Honours, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Doyle.  The Court reserves its decision in this matter and adjourns to 9.30 am on Thursday, 12 August for the pronouncement of orders and otherwise until 10.00 am.

AT 3.49 PM THE MATTER WAS ADJOURNED