Sunland Group Limited & Anor v Gold Coast City Council

[2021] HCATrans 61

[2021] HCATrans 061

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

AT CANBERRA ON FRIDAY, 9 APRIL 2021, AT 9.45 AM

Copyright in the High Court of Australia

MR S.L. DOYLE, QC:   May it please the Court, I appear with MR S.J. WEBSTER for the appellants.  (instructed by Holding Redlich Lawyers)

MR G.J. GIBSON, QC:   May it please the Court, I appear for the respondent with my learned friends, MR M.J. BATTY and MR A.G. PSALTIS.  (instructed by Hopgood Ganim Lawyers)

KIEFEL CJ:   Yes, Mr Doyle.

MR DOYLE:   Your Honours, we have hard copies of our short oral summary, if you would like those handed up, although they have been emailed, I understand, this morning.

KIEFEL CJ:   We have them, thank you, in hard copy.

MR DOYLE:   Thank you.  Your Honours, this appeal concerns the effect, if any, to be given to a number of conditions of a planning approval which was granted by the respondent Council in respect of land which is now owned by the appellants.  The conditions concern the contributions to be paid for infrastructure to be provided to the land. 

The particular planning approval here was something called a preliminary approval ‑ and I will come back to explain the significance of that shortly – which was granted subject to those conditions.  That was granted in 2007 under a statutory regime, the Integrated Planning Act, which has subsequently been amended and repealed and replaced by others.

There has been no explicit statutory abrogation of the effect of those conditions and, indeed, the transition provisions have operated to preserve the preliminary approval together with its conditions.  The essential controversy in this appeal concerns the proper construction of the conditions at the time they were imposed under the Integrated Planning Act and their effect now under the current legislation. 

Can we take you immediately to the current legislation, which is in the authorities bundle, volume 1, at page 371?

GORDON J:   Would you mind telling us which Act?  Some of us are working off electronic and some of us are working off hard copy.  Could you just tell us which Act and which section, please?

MR DOYLE:   Very good.  This is the Planning Act 2016 and the sections I am going to now will be 286 and then 66.

GORDON J:   Thank you.

MR DOYLE:   If you go first to page 371, which is section 286, and turn across to subsection (7), you will see that in that section “document” includes, and then in (iii):

an approval (a development permit or preliminary approval, for example) ‑

A preliminary approval, which is what we have, is a document for these purposes.  Turning back then to the start of the section.  This section applies to a document under the old Act and, for reasons I will not trouble you with, that is satisfied here.  Then, in subsection (2), it says:

Subject to this part -

and there is no relevant exception:

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.

If you turn then to page 308, which is section 66, you have a section headed “Prohibited development conditions” and it is this section which identifies the conditions which cannot be imposed under this Act.  There is a short number of them, the detail does not really matter for these purposes.  But in subsection (1)(c), you will see, other than for an exception which we need not worry about, it says a development commission must not:

require a monetary payment for the establishment, operating or maintenance costs of, works to be carried out for, or land to be given for‑

(i)       infrastructure -

so that infrastructure conditions are one of the conditions which the Planning Act provides cannot be imposed under it and which we would submit Parliament plainly had in mind when it drafted section 286 as referring to a preliminary approval continuing with its terms and conditions being given effect, even though they are not conditions which can be imposed under this Act. 

So the starting point for the appellants is that they have the benefit of a preliminary approval.  Everyone agrees it is continued in force and it continues until 2023 at least.  It contains conditions which cannot be imposed now but which seem to derive the benefit of section 286, but the respondent will not give effect to those conditions.  It recognises the validity of the preliminary approval itself and presumably other terms of it, but it says for two separate reasons it need not or must not give effect to the infrastructure conditions with which we are concerned. 

The first – and I am paraphrasing what is said – but the conditions never took effect as conditions at all.  Rather, they were in the nature of a notification of a kind and having no operative effect no matter how conditionally, or it may be said they are uncertain and so cannot represent the valid exercise of the power to impose conditions. 

Under that first argument we apprehend it is said there is nothing to which section 286 can bite because there is no condition to continue, it never having been a condition.  That, in substance, is the way the decision below in the Court of Appeal was made.  The Court of Appeal puts it slightly differently because the court reasoned – as I will show you shortly – in terms of whether the conditions imposed any obligation to pay, but in the end their Honours concluded that the conditions expressed no obligation to pay – however conditionally – and so, in substance, the point is the same.

KIEFEL CJ:   Mr Doyle, section 66(1)(c) – the reference to “chapter 4, part 2 or 3” – is that to an infrastructure notice and to the scheme by which a condition can be imposed?

MR DOYLE:   The infrastructure notice provision ‑ ‑ ‑

KIEFEL CJ:   Notice provision.

MR DOYLE:   ‑ ‑ ‑ does not provide for a condition at all.  The nature of – this capacity to have work done instead of the imposition of charges.  The infrastructure charges notice regime is a different one to the conditions regime.

KIEFEL CJ:   I understand that, but that is part of the point, is it not ‑ ‑ ‑

MR DOYLE:   Yes, that is the point.

KIEFEL CJ:   ‑ ‑ ‑ that Justice McMurdo made, that there is a new regime and that the old regime of conditions applying PSPs was phased out.

MR DOYLE:   That is so.  It was phased out.  I will come to that, obviously, later on.

KIEFEL CJ:   Yes, thank you.

MR DOYLE:   But the transition provisions preserve the preliminary approval and their conditions throughout.

KIEFEL CJ:   But the question is what the preliminary approval does.

MR DOYLE:   That is so.

KIEFEL CJ:   That is the essential question.

MR DOYLE:   That is the essential question.  As your Honours understand, the Court of Appeal concluded that in order to have any obligation imposed to require a contribution towards infrastructure, required a second condition to be imposed at the development permit state – that is, the conclusion reached by the Court of Appeal was that these conditions did not operate to impose any obligation, rather they formed only a framework for some future decision‑making process and unless and until that second condition was imposed, there was no obligation to make a contribution under a condition.

KIEFEL CJ:   The point I understand Justice McMurdo was making was that it would be unusual for a developer to want to bind itself at the preliminary approval stage to financial contributions and that that was something which would normally occur at a development permit stage when the assessible aspect of the development is considered.

MR DOYLE:   It is not – that is true, that is true what his Honour reasoned.

KIEFEL CJ:   You say that is wrong?

MR DOYLE:   It is wrong because of the starkness in which it is put.  It was put that it would be a remarkable thing if the developer was bound by the original condition to make a contribution towards infrastructure before he obtained the approval to carry out the work and his Honour reasoned from that it cannot be right to construe the condition as imposing any obligation, but it is not the binary choice. 

The construction for which we urge is the proper construction of the condition is one which does define the obligation, albeit conditionally – conditionally, at least, upon my client applying for a development permit because the language of the condition, as we will see in a moment, requires that to be done, that is, requires as a condition for the condition to operate, that there be an application for a development permit. 

Then there is some ambiguity in the condition about the date at which the calculation of payment is to be made which we would urge can be resolved sensibly by having regard to the various things I will take you to in favour of it being the date when the permit is, in fact, granted.

KIEFEL CJ:   Can the details of the development which might affect infrastructure contributions vary between the time of the preliminary approval and the development permit?

MR DOYLE:   Yes, and that is why the condition operates – if we are right about the construction, the one I will be urging today, and one we have urged in writing, the condition requires a contribution to be made upon two things occurring.  One, obviously, the making of an application for development permit and then, probably, as a proper construction of the condition, that being granted, at which time the relevant criteria are defined. 

You know the date, you know the equivalent tenements, which is the thing, the integer required for the calculation of the contribution, and all of the things required for the determination of the sum to be paid have crystallised.  That occurs whether or not a second set of conditions is imposed at the time of the development permit. 

If that is right, if that is the correct construction, and I will hope to persuade you that is what the statute really calls for, then section 286 has effect, and according to its terms, when my client applies for a development permit to build an apartment building or some such thing and it is granted, the obligation which is then crystallised is one which can be said to be derived from the original condition, and not dependent upon the introduction of a second set of conditions.

GORDON J:   Is the integer for the calculation of the contribution still published?

MR DOYLE:   Yes.  That was an agreed fact.  Now, that is the first part of the case put against us.  The second part of the case put against us is that, if we are right, that is, if the condition operates in the way I have described, nonetheless the respondents wish to contend that the Planning Act itself precludes them from recovering money under a condition that requires them to recover it under the infrastructure charges notice provision, section 119.  I will come back to, obviously, that aspect, later on.

Can we ask your Honours to go to the conditions, please.  You should have received a book of further materials, the appellant’s second supplementary - it looks to be E, which is a clearer copy of the original preliminary approval.  If your Honours go to page 7 of that book, you will see at about line 22 the heading “Preliminary Approval”:

1Council’s Gold Coast Planning Scheme . . . other than the approved variations detailed above –

and the variations are in paragraph 1 above:

shall be the planning instrument against which future development applications upon the site are to be assessed.

2This Preliminary Approval is comprised of the following documents –

including, you will see, the last dot point:

The conditions of this Preliminary Approval -

a matter I will come back to later.  It is right to describe this as proposing a framework – in part a framework to govern the future development of the large area the subject of the “Lakeview at Mermaid Plan” or the “Lakeview at Mermaid Place Code”.  There is then the heading “Assessment Framework” and paragraph 4 your Honours should read.  The table of development, which is referred to there, appears later in the document, and I will show you.  In paragraph 6, various things are declared to be codes for the future development, including the conditions of the preliminary approval.

KIEFEL CJ:   In paragraph 4, Mr Doyle, the document does not say, “The conditions of this preliminary approval shall be the conditions for development.”  It says “planning framework”.

MR DOYLE:   Yes, but your Honour they will do that because – if we confine ourselves to the conditions with which we are concerned, subject to applying for a development permit and it being granted – so when my client does decide that it wants to do whatever particular aspect it wishes to do and that is assessed against the table of development to say it is permissible or not permissible and that is granted, the question then arises what is to decide how much you have to pay and that is governed by the conditions.  That is the framework under which it operates.

The statute itself does not call for a second set of conditions.  In fact, what it contemplates is that the first set of conditions will de facto apply to the development permit.

GLEESON J:   Is the planning framework a defined term?

MR DOYLE:   No.

STEWARD J:   Can I ask a question?  If your client proposes to proceed with the development, it will seek a development application under the current Act?

MR DOYLE:   Yes.

STEWARD J:   Does the current Act have the same provision that was formerly in the Integrated Planning Act whereby conditions for a development permit were subject to the conditions in the preliminary approval?

MR DOYLE:   It provides for the prevailing of any inconsistency of the first set of conditions.

STEWARD J:   Is there a section in the current Act which does that?

MR DOYLE:   Yes, there is, which I will take you to.

STEWARD J:   Perhaps your junior will bring it up at some stage.  Thank you.  I suppose the question I am really asking is what is to stop the Council from issuing a development application on different terms.

KIEFEL CJ:   Adjourn the Court.

AT 10.03 AM THE MATTER WAS ADJOURNED