Sunland Group Limited & Anor v Gold Coast City Council

[2020] HCATrans 160

[2020] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B27 of 2020

B e t w e e n -

SUNLAND GROUP LIMITED

First Applicant

SUNLAND DEVELOPMENTS NO 22

Second Applicant

and

GOLD COAST CITY COUNCIL

Respondent

Application for special leave to appeal

NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO CONNECTION TO BRISBANE

ON TUESDAY, 13 OCTOBER 2020, AT 10.30 AM

Copyright in the High Court of Australia

MR S.L DOYLE, QC:   I am sorry, I am having trouble hearing you.  I appear with MR S.J. WEBSTER for the applicants.  (instructed by Holding Redlich Lawyers)

NETTLE J:   We are having a bit of trouble hearing you too, I must say.  Mr Gibson, are you having any difficulties?

MR G.J. GIBSON, QC:   Not so far, your Honour, thank you.  I appear with MR M.J. BATTY for the respondent.  (instructed by HopgoodGanim Lawyers)

NETTLE J:   Let us try it out.  We will see how we go, Mr Doyle.

MR DOYLE:   Very good.   As your Honours know, a preliminary approval was granted for a multi‑stage residential development on the Gold Coast.  It was granted under the then Integrated Planning Act, and by that Act and all later relevant Acts, preliminary approvals approved development, but a further approval is required in order to commence that development.  It was granted with a raft of conditions, seemingly intended to be binding, including some which, on their face, imposed obligations to make contributions for infrastructure of various kinds.

The statutory regime was subsequently changed so that conditions could no longer be imposed to raise infrastructure contributions but rather they were done by a charge levied pursuant to a notice.  The ultimate issue in the case is whether the conditions governed the contribution towards infrastructure or whether it is now to be governed by the infrastructure charges notice levy.

EDELMAN J:   Mr Doyle, I could not see anything in the materials that indicated what the difference between those two charges might be.  Is there any information about that?

MR DOYLE:   There is none, but it is significant, your Honour.  There is none in the agreed statement of facts.  The conditions carried with them some credits which the evidence, which is in the material, showed were worth some $19 million and the credits which have been allowed have been trivial compared to that.

The ultimate question that described it turned upon the effect, if any, to be given to the conditions, and that, ultimately, was because of a transitional provision in the Sustainable Planning Act which preserved the Council collecting a contribution payable under a condition lawfully imposed under a planning scheme policy.  The Court of Appeal ultimately concluded that while these conditions were core conditions, they did not require, in fact, anything to be done, even if conditionally, but rather were merely a framework for some determination of a future application.  And it was for that reason the Court of Appeal concluded the infrastructure charges notices regime applied rather than the contribution under the conditions.

Now, while this case arises in the context of some particular transitional provisions, the point of principle which was discussed by the Court of Appeal is one of a more general application, because it is, what effect is to be given to things which appear to be conditions of a preliminary approval, not a development permit. 

NETTLE J:   …..on the particular context, though, is it not?

MR DOYLE:   The context – yes, it does, of course, your Honour, it turns on the terms of condition, but the particular context which the Court of Appeal relied upon was the fact that it was a preliminary approval, and I was going to take you to two passages of their reasons which are in our written argument which really identify that.  That is paragraphs [25] and [26] of the Court of Appeal’s reasons, at application book page 63. 

NETTLE J:   Yes.

MR DOYLE:   Your Honours would have read that before because we have extracted that, as I have said, in our written argument.  The gravamen of the reasons were that the conditions did not, it said, themselves unambiguously create an obligation to pay, and that having regard to the nature of the approval as a preliminary one, which established a framework for the determination of some future application, it was concluded that those conditions did not in fact create such an obligation. 

Now, of course, it is that which we challenge.  In our submission, neither the language of the conditions nor of the Act provides any support to the Court of Appeal’s conclusions.  The Court of Appeal’s conclusion really assumes that it is necessary to make a choice between a preliminary approval being one which provides a framework and not conditions which can be binding.  That is a false choice, in our submission, the preliminary approval can do both.  It can provide a framework for the determination of future development permit applications, but also provide binding conditions, relevantly in relation to infrastructure contributions. 

EDELMAN J:   You accept that that is a question that will never arise anymore under the Planning Act.

MR DOYLE:   It will never arise as a result of a fresh set of conditions but it will arise in respect of conditions which have been imposed under previous regimes and which are preserved by the various transitional provisions which led to this case. 

EDELMAN J:   Is there any evidence ‑ ‑ ‑

NETTLE J:   …..as to the number of those, Mr Doyle?

MR DOYLE:   We are not in a position to tell you the number of those but when this matter came before the Court of Appeal – can we ask you to go to the application book page 49, to paragraphs 3 and – probably 3 will do for these purposes.

NETTLE J:   It sounds good but it depends on the numbers that are in the pipeline.

MR DOYLE:   An applicant, of course, in my client’s position cannot ever know that.  But there is at least this one which is worth a great deal to my client and that is one of the things we do rely upon and the determination of this point was said by the Council – which is in a better position to know than us – that it was important for the reasons I have just given you – not simply to this Council, to all councils, but also to the councils’ capacity to budget and finance.  If it was simply a one‑off matter, it would not have been capable of being described in that way by our learned friends in their application for leave.

NETTLE J:   Just one other thing while we are talking about practicalities, you put in very recently some New South Welsh legislation, presumably to say that this point affects their legislation also, is that correct?

MR DOYLE:   It is.  Both in New South Wales and South Australia there are regimes which mirror – not obviously exactly – but which mirror the Queensland regime of a preliminary approval followed by a more substantive development approval where conditions are capable of being imposed at both stages and where the conditions of the later approval are constrained so as not to be inconsistent with the earlier consent approval, or conceptual approval as it is called.  So that if the reasoning which the Court of Appeal found favour with is apposite to the construction of these conditions, it is likely to be relevant for both in South Australia and in New South Wales.

NETTLE J:   Thank you.

MR DOYLE:   Your Honours, I said that the language of the conditions themselves did not support the Court of Appeal’s conclusions.  Could I ask you to go to page 12 of the application book ‑ I am sorry, my mistake, page 20 of the application book, to the four relevant conditions, 13 to 16.  They are all in similar terms, and the Court of Appeal used 13 as the template, we are content to do that, although you will note under both 15 and 16 in the last sentence of each of those, there is reference to those credits that I mentioned earlier.  The language of condition 13, just to use it as the example, is that it only operates if some further action is taken, namely, a further application is made.

But when that application is made, the condition operates according to its terms, and according to its terms, that is at a time expressly before the development permit is granted, which makes it difficult, in our submission, to construe it as only providing a framework for the determination of an application for that future development approval when, according to its terms, it operates at a time before that approval can occur.

The condition is expressed in terms that the contributions shall apply at that time, and this is common to each of those conditions.  That language is incapable, in our submission, as being understood as making the obligation dependent upon the imposition of some future condition of a future approval.

EDELMAN J:   Presumably your submission is that “shall apply” means are due but not yet payable.

MR DOYLE:   Correct.  And the question of when it becomes ‑ sorry, the rate is to be the rate which applies to the date of payment, and the thing which there is some ambiguity about is the date of payment.

EDELMAN J:   If the ambiguity were removed, then one would expect that, perhaps, this issue would not have arisen.  In other words, if the provision said “shall apply at the time the application is made and shall be payable at”.

MR DOYLE:   Yes.

EDELMAN J:   So why is this not then just ultimately a question of construction of a bespoke provision as to the omission of the additional words “and shall be payable at a reasonable subsequent time” or “at the time the development is approved” or whatever might, on your view, be the reasonable construction?

MR DOYLE:   Your Honour, our ultimate reasonable construction is to say that it is probably payable at the time the further development permit is granted, and that is really, I think, the case which is implicitly put against us.  If the Court of Appeal had decided on the basis of it being, in fact, an obligation which arises under the preliminary approval by a condition which is, in fact, an obligation rather than merely a framework, but then made an error in the construction of what that obligation was, that would be a different case.  And that is, with respect, what your Honour is really suggesting to me, if they had made an error as to when it becomes payable, we would have a debate about whether that gives rise to a special leave case.

EDELMAN J:   I think the point that I am making to you is that if it were clear as to when it became payable then it would be clear that it was an obligation, would it not?

MR DOYLE:   Well, not on the Court of Appeal’s case.  The Court of Appeal’s approach was it does not unambiguously give rise to an obligation at all because, in part, there is uncertainty as to the date of payment, we accept that, but because of the context that it is within an approval which is itself a framework.  As to the possibility, this is a bespoke condition which can have no greater significance than the determination of this case.

Assuming that, we still submit that the interests of justice require special leave in respect of my client’s interest, a matter I will come back to, but such an approach would be inconsistent with what the Council itself said to the Court of Appeal as to the importance of the determination of this question, that it was not limited to this application, it was limited to all matters affecting councils throughout Queensland and to the extent that it affected their budgeting financial plans.

Your Honour, that in a sense really is the ultimate point, that the Court of Appeal approached it as if the choice was framework or obligation and not that it is a framework which contains obligations.  In respect of the submission which we made below that the uncertainty as to the date for payment could be resolved having regard to the very things the Court of Appeal points to in paragraph [26] of their reasons as showing that the proper construction of the condition is that the obligation to pay arises – sorry, the time of payment is when the development permit is granted subsequently because, at that time, you can identify with precision the nature of the development and, therefore, work out in accordance with the policy the amount to be paid.

But that conclusion does not mean that the source of the obligation to pay is not the condition of the preliminary approval, and yet that is what the Court of Appeal found, and in doing so did not address the submission that we have just made to your Honours that the proper construction of the condition is that it imposes an obligation subject to the condition that my side makes an application for a development permit that all of the terms of the condition are set and the only uncertainty as to the date of payment which is a matter of construction should be resolved as being the date when the subsequent permit is granted.

If that were right, then returning to the transitional provision which is relevant, the question is whether when the Council collects that contribution is it collecting a contribution payable under a condition lawfully imposed under a planning scheme policy and the answer, in our submission, is plainly, yes it is, in which event the contribution scheme under the conditions apply and the charge scheme does not apply.

Your Honours, I want to say a few additional things about the Act which support the conclusion for which we contend.  The relevant Act is the Integrated Planning Act and that is at appeal book page 91.  I do not need to take you to many of these divisions.  I will summarise their effect, if I may.  The first thing is that under section 3.5.32 no subsequent condition can be inconsistent with the condition with which we are concerned.  That is significant because it does not require, for the efficacy of a condition of the preliminary approval, that there be a later condition.  It merely permits, if there is a later condition, that it must be consistent with the primary condition in the preliminary permit.

The second thing, your Honours, is that under section 4.3.3, non‑compliance with a condition is an offence and that extends to these conditions, notwithstanding that they are conditions of a preliminary approval.  The third and perhaps the one I would take you to is at page 93 of the application book.

EDELMAN J:   Does not the second point cut both ways because it does tend towards a construction of a provision which does not provide clearly for a date for payment to suggest that it would be an offence not to pay?

MR DOYLE:  Yes, but it would only be an offence not to pay upon the proper construction of the condition, which, as we have said, having regard to the terms of the Act, would be the date that the subsequent development permit is issued, and that would be so even if that subsequent development permit was silent as to the contributions towards infrastructure; that is, assuming we are right about the construction and my side applied for and obtained a development permit which does not contain any conditions about infrastructure contributions, and then you look at the question, “Is there an obligation under conditions 13 to 16 of the preliminary approval to pay this sum?”, the only thing missing is the date for payment ‑ and as a matter of construction I picked the late date, that is, the latest of the dates that it would be – and if it is not paid at that stage, your Honour, we would submit it is plainly an offence.

EDELMAN J:   But the difficulty with construing it as an obligation to pay at that date, when there are other contending possibilities for dates at which it might be paid, is that an offence is created for failure to pay when there is no clear provision at all as to when the date for payment is going to exist.

MR DOYLE:   We accept, your Honour, that it would be easier to identify the commission of the offence – it identified a date, but it does identify every part of the obligation except the payment date and, as a matter of construction, we would urge there can be a date by which the payment is required.

Your Honours, the last thing I wanted to say on the statute is section 6.1.31(2)(c).  The power to impose this condition at all is expressed to be ‑ in subsection (2)(c), to:

impose a condition on the development approval –

which relevantly includes the preliminary approval:

requiring . . . a contribution towards the cost of supplying infrastructure –

So, the very power which was invoked was one which spoke not in terms of a framework for future imposition, but as a present imposition.

Your Honours, I want to say some brief things about why special leave should be granted.  There are really three.  Firstly, it is necessary to remedy the substantial injustice to the applicant.  This is not an applicant who is just a disappointed applicant for approval.  The agreed statement of facts show that it bought the land only after receiving assurances from the respondent that credits were available under – and this is the language used – under conditions 15 and 16, and this was after the Sustainable Planning Act had been amended so as to preclude the imposition of conditions for the recovery of infrastructure contributions and replacing it with the notice regime.  So, to remedy the substantial injustice to my client, leave should be granted in this case.

Secondly, as we have said, it is of significant importance throughout Queensland for the reasons I have touched upon.  Finally, it is of significance to other States in the Commonwealth, South Australia and New South Wales at least.  As to all States and Territories, we think all of them include regimes for the imposition of conditions and, to some extent, the articulation of the approach by the Court of Appeal bears upon whether things described as conditions pursuant to a power to impose conditions are to be understood as imposing obligations at all.  For those reasons, this is an appropriate case, in our submission, for the grant of leave.  Those are our submissions.

NETTLE J:   Thank you, Mr Doyle.  Mr Gibson.

MR GIBSON:   Thank you, your Honours.  For the reasons we have given in our written outline, it is our submission that this is not an appropriate case for a grant of special leave.  In particular, the issues raised are, as we have submitted at paragraphs 8 and 14(a) of our written outline, that is, at pages 132 and 135, not granted on principle.  The decision of the Court of Appeal will not stand as authority for any principle of general application.  It turns on matters of construction alone and those matters of construction are informed by the status of a preliminary approval in the Queensland legislative scheme. 

The Integrated Planning Act, which applied at the relevant time, that is, the time at which the preliminary approval was granted in 2007, has been relevantly continued under subsequent legislation, the Sustainable Planning Act and now the Planning Act in recognising the difference between a preliminary approval, on the one hand, and a development permit on the other.  His Honour Justice McMurdo, with whom the other members of the court agreed, recognised that distinction.

It is stated in the legislation, but as his Honour noted, in particular at paragraph [19] of the reasons for judgment, in the application book at page 62, and also at paragraph [26] in the application book at page 64, the difference between a preliminary approval and a development permit is that a preliminary approval approves the development but it does not authorise development to take place.  As his Honour correctly stated it in the two paragraphs to which I have referred, the role of a preliminary approval is to establish a framework, a planning framework, under which subsequent applications for development permits will be assessed.

EDELMAN J:   Whereas your submission is effectively that the remarks at paragraph [26] are just referring to the framework as being one aspect of context in the construction of the particular provision.

MR GIBSON:   Yes, exactly so, your Honour, that is true.

NETTLE J:   Mr Gibson, if that is right, why would the conditions say that the amount payable be as set out in the particular policy?  Why would it not just say that the amount payable would be the amount payable under the legislation applicable at the time of the grant of the development permit?

MR GIBSON:   Well, your Honour, that is a point on which we would rely ourselves, because, as appears from the reasons for judgment, at the time of the grant of the preliminary approval in 2007, the planning scheme policy regime, if I can use that term, which is referred to in each of these provisions, was itself under the shadow of a sunset clause, and that appears in section 6.1.20 of the Act, which was reproduced in the judgment of the Court of Appeal at paragraph [21], commencing at page 62.  And, relevantly, that is the provision, in subsection (2), that identifies what it is that a planning scheme policy must do, and then, in subparagraph (4), it is provided to the effect that the section ceases to have effect on 30 June 2008.

So it is an extraordinary state of affairs whereby, in a preliminary approval which was granted in May 2007, and which was intended to operate for many years thereafter, should be so construed as to impose an obligation to pay infrastructure contributions under a condition imposed pursuant to a planning scheme policy when it was inevitable that those planning scheme policies would cease to ‑ not the policy cease to have effect, but the regime for the adoption of planning scheme policies would cease to have effect, about 12 months later.

Now, true it is, that subsequent legislation preserved the effect of planning scheme policies that were adopted before, as it turned out, 2011, but at the time the preliminary approval was granted that was not to be known.  So, that is another contextual consideration, in our submission, that supports the conclusion that, consistent with these provisions being part of a framework for the assessment of subsequent applications, it is most unlikely – and it is not the correct construction – that it impose an obligation to pay those charges.

NETTLE J:   Then, what was the point of that so‑called “condition”?

MR GIBSON:   The point of it, your Honour, was to notify the developer – who was the beneficiary of the approval – that these contributions towards this type of infrastructure would be…..shall apply at a later time, a time that the application was made for a development permit.

EDELMAN J:   To notify it in the context of provisions that are concerned with imposing conditions.

MR GIBSON:   It notified the applicant, your Honour, that a condition imposing infrastructure charges would be imposed at such time as a development permit or permits were granted. 

NETTLE J:   Would it not say, take notice that contributions will be payable in accordance with the legislation as it may exist from time to time, full stop?

MR GIBSON:   That may be so but, nevertheless, even substituting those words by way of construction, does not convert these provisions into provisions that themselves created an obligation to pay – as Justice McMurdo dealt with it at paragraphs [25] and [26] of the reasons at page 64 of the appeal book.

NETTLE J:   Why can it not be construed as imposing an obligation subject to a condition subsequent that a development permit is granted?

MR GIBSON:   There are two reasons.  Firstly, in our submission, there remains the question of the uncertainty as to the date for payment of the contributions.

EDELMAN J:   That date would be when the condition subsequent satisfy.  It would have to be. 

MR GIBSON:   That may be so, your Honour, yes.  But, the effect of the condition if it was to provide to the effect that the contributions be paid in accordance with the legislative scheme in force at the date of approval of the development permits is not an outcome for which the applicants would contend because it would produce the situation which had evolved, namely, that infrastructure contributions would be charged by way of infrastructure charges notices under the subsequent legislation.  That is not what the applicants seek.  They seek to hold the Council to the express wording of this provision, namely, that the contributions both shall be in accordance with the planning scheme policy.

So, this debate about the correct approach to the construction of the provision and the correct outcomes does not assist the applicant in the result and, if anything, confirms simply that this is a matter which was agitated before the Court of Appeal and as to which the court unanimously concluded against the applicants.

The submissions that were made, both in writing and this morning, that later conditions – conditions approved on later approval – imposed on later approval, cannot be inconsistent with the conditions imposed on preliminary approval.  That, with respect, begs the question as to whether these provisions so operated as to impose an obligation to pay.  It is unlikely in a further contextual consideration is as follows, that as a development permit would inevitably be sought and permits have in fact been granted to the applicant over the years since 2007, inevitably it is at that stage that the details of the development which are authorised to be undertaken is known.

Those details are known only in a broad sense under a preliminary approval.  It is not until an application is made for a development permit and ultimately a permit is granted that the details of the development can be known.  It is unlikely, with respect, that a preliminary approval would deliberately impose an obligation to pay infrastructure challenges when the details of the development, the subject of those charges, would not itself be known until a development permit be granted.

NETTLE J:   Presumably, Mr Gibson, the developer could work out from the formula in the early policy what would be payable according to the way in which he structures his development. 

MR GIBSON:   Yes, but the question then is whether that has worked out in accordance with planning scheme policy 16 or the other policies referred to in these provisions, or whether they are worked out in accordance with policies that – or other provisions, infrastructure charges provisions that apply at the time the development permit is granted.

NETTLE J:   You are making the point that there is no lack of certitude in the charges being payable in accordance with this policy specified in the condition.  Au contraire, it gives complete certitude from the outset and allows the developer to structure his development knowing what charges will be payable.

MR GIBSON:   Yes, but as I have said earlier, your Honour, in our submission, it is sufficiently unlikely interpretation and is one that should not be adopted, but the Council saw fit to bind itself to a particular policy or policies which were known and the date the preliminary approval was granted to be expiring at a later time.  This is in the context, I should add of ‑ ‑ ‑

EDELMAN J:   The flipside of that is that the Council may have been aware that the expiry of those policies would have left the developer in a state of considerable uncertainty, if there were not some certitude provided for the likely amount of charges. 

MR GIBSON:   But, your Honour, that is not inconsistent with the preliminary approval and the conditions imposed on it being a part of the planning assessment framework which would be crystallised only at the later date at which a development permit was granted.  The interpretation – his Honour then carefully went through the impact of subsequent provisions of the legislation, the Sustainable Planning Act, and particularly the 2011 Act, as it was termed, at paragraph [32] of the reasons for judgment at page 66 of the application book, and culminating in the provision currently applicable which is section 119 of the Planning Act, which obliges a local government in this Council’s position to give an infrastructure charges notice. 

Section 119 appears at paragraph [40] of the reasons for judgment at page 69 of the application book, and there is an inconsistency which would operate in the event that the applicants’ submissions were otherwise thought to be attractive, an inconsistency in the obligation under section 119 and the imposition of charges under a planning scheme policy, given effect by a condition of the development approval. 

Your Honours, there are three points we finally wish to make.  It was submitted that the special leave should be granted to remedy a substantial injustice and that appears to refer to the applicants’ submissions at paragraph [41] of the applicants’ outline, which have been noted orally today. 

Your Honours, as we pointed out in our written outline, at paragraph 20, subparagraph (f), commencing at the appeal book at page 135 and 136, we said there that if there was a question about the effect of the applicant having acted on advice as to the operation of these provisions, that was a matter of determination in other proceedings.  As it turns out, the applicants have commenced proceedings in the Federal Court in Australia against the Council for damages for misleading and deceptive conduct and also for negligent misstatement.

So, the existence of another remedy which is being availed of and which is not submitted by the applicant as not sufficiently addressing its concerns, is a further discretionary reason why this application or this case is not a good vehicle for going on appeal.

With respect to the position with other States, it is true that two other States have an equivalent of a preliminary approval, but the details of the legislation applicable to those approvals is not known and there is no basis for inferring that a judgment in this case would be of relevance interstate.

Finally, it was raised as to whether how many other preliminary approvals were in the pipeline, such as this one.  The answer to that is it is not known, but it should not be inferred that there are any.  The statement of agreed facts identified the factual context in which the issues were raised in this case and no reference is made to the existence of any other preliminary approvals including such conditions.

Indeed, our submission is that, whilst…..rather it is theoretically possible for a preliminary approval to include conditions with respect to infrastructure charges, the practical considerations that intrude make that little more than a hypothetical assessment.  The Court of Appeal was correct in construing the conditions as it did and, in our submission, there is no sufficient ground for doubting the correctness of that view.  Those are our submissions, your Honours.

NETTLE J:   Thank you very much, Mr Gibson.  Mr Doyle.

MR DOYLE:   Five things, your Honour.  The first proposition was that it is said there is no point of principle here because in part the construction was informed by the context of this being a preliminary approval.  Yes, that, in our submission, demonstrates as a matter of principle because it perpetuates the false choice that something can either be a preliminary approval or impose some condition which imposes an obligation of a kind.  That makes it a matter of general importance because, whilst we are here talking about infrastructure contributions, there are many kinds of conditions which are attached to preliminary approvals and the approach of the Court of Appeal would be to infer that the context that they appear in a preliminary approval is relevant to the determination of them not being binding.

Aligned to that is that the provisions in New South Wales are, for all relevant purposes, identical and the purpose of our providing the supplementary annexure was to give your Honours section 4.22 of that Act which deals with concept development applications which do not authorise the carrying out of development unless some other application is granted and which pick up other provisions which allow the imposition of conditions provided they do not – sorry, conditions of the kind with which we are concerned here.

The second point is that our friends placed reliance upon the existence of a sunset date upon the significance of these policies and imposition of infrastructure contributions.  That, in our submission, assists the applicant.  The point of imposing the condition was to entrench the application of those policies, even though they were made under the shadow of those policies ceasing to be of further application.  That is the only point of these conditions, to entrench for the future these policies as the requirements for the making of infrastructure contribution.

The third thing our friend said is that the effect of these so‑called conditions is to notify the applicants of something.  The power to impose a condition is not the power to give notice but rather to require the making of a contribution and this set of conditions includes, at the very end of it, at appeal book page 28, under a heading “General Advice”, other things which the Council is advising the applicant of, if this was one of them, it would appear under that heading rather than under the heading “Conditions”.

The fourth thing concerns section 119, to which our friend referred.  Would your Honours please go in the application book to page 67.  In addition to section 119, the Planning Act contained section 286 and by subsection (2) it provides that:

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

And if you go to the next page, “document” is described in a way which includes a “preliminary approval”.  We accept that there is an apparent inconsistency between section 119 and section 286, which we would urge would be resolved in favour of giving effect to the conditions, as did the primary judge and as to which there is no contrary conclusion by the Court of Appeal.

The final point I wish to make concerns the substantial injustice to my client.  The statement of facts, if your Honours would take it up at appeal book page 31, identifies in paragraph 9 that:

Sunland . . . sought confirmation from the Council regarding its approach to calculating infrastructure contributions –

and so on.  And, relevantly, in paragraph 13 of that statement of facts is the response.  If your Honours go to the top of page 33 of the application book, what is said is:

These credits are available as offsets against charges required . . . under conditions 15 and 16 ‑

So the substantial injustice arises because, prior to requiring this site, my client sought confirmation, and was given it, that credits would be available against the charges to be imposed under those conditions which the Council now wishes to say had ceased to have any effect by the time that letter was sent.

Now, he is right to say my client complains of that in other proceedings, but that does not prevent it being a matter of requiring grant of special leave to overcome substantial injustice to my client to have this question determined in this Court.  Those are our submissions, your Honour.

NETTLE J:   Thank you, Mr Doyle.  The Court will adjourn briefly to consider this matter.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.19 AM:

NETTLE J:   In this matter, there will be a grant of special leave.  How long would it take, do you think, Mr Doyle?

MR DOYLE:   Less than a day, your Honour.

NETTLE J:   Mr Gibson, do you agree?

MR GIBSON:   Yes, your Honour.

NETTLE J:   The parties’ instructing solicitors will need to consult with the Registry as to the interlocutory steps to be taken.

MR DOYLE:   Thank you, your Honour.  I am obliged.

NETTLE J:   The Court will now adjourn until 11.30 am.

AT 11.30 AM THE MATTER WAS CONCLUDED