Sunshine Coast Regional Council v Recora P/L

[2012] QPEC 8

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v Recora P/L & Anor [2012] QPEC 8

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL
Applicant

V

RECORA PTY LTD ACN 005922109
First Respondent

And

GOLDER ASSOCIATES PTY LTD ACN 006107857
Second Respondent

FILE NO/S:

152 of 2011

DIVISION:

Planning and Environment Court

PROCEEDING:

Application for an enforcement order

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

24 February 2012

DELIVERED AT:

Maroochydore Planning and Environment Court

HEARING DATE:

6 February 2012

JUDGE:

J.M Robertson DCJ

ORDER:

1.    A Declaration pursuant to s 456 of the Sustainable Planning Act 2009 (“SPA”) that the use of land described as Lot 1 on M56730 County of Canning, Parish of Mooloolah and located at 55 Kingsford Smith Parade (“the property”) as an office constitutes a development offence pursuant to s 580 of SPA, as the First Respondent is contravening conditions of a development approval, namely conditions 6-10 inclusive of Development Approval reference MCU06/0173 issued for the property by the then Maroochy Shire Council and dated 22 February 2007 (“the approval”).

2.    Adjourn the application to 9:30am on 2 March 2012 to enable parties to confer

CATCHWORDS:

PLANNING AND ENVIRONMENT: Construction of conditions in development approval for payment of infrastructure conditions-where time for payment as required by conditions had passed when First Respondent became registered proprietor-where approval and conditions attach to land-whether the non-performance of the conditions by non-payment in a timely way rendered to condition incapable of performance-where notice of non-payment not given to Respondents by Council in a timely way-where Respondent refuses to pay-whether it has committed a development offence and whether enforcement orders should be made as an exercise of discretion

Legislation:

Integrated Planning Act 1997 (now repealed)

Sustainable Planning Act 2009

Cases Considered:

Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637

Hawkins and Izzard v Permarig Pty Ltd & Brisbane City Council (No 1) [2001] QPELR 41

MC Property Investments Pty Ltd v Sunshine Coast Regional Council(No 2) [2011] QPEC 133

Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPELR 334

Warringah Shire Council v Sedevcic [1987] 10 NSWLR 325

COUNSEL:

Mrs N.J. Kefford for the Applicant

Mr N. Loos for the first and second Respondents

SOLICITORS:

Sunshine Coast Regional Council Legal Services for the Applicant

Golder Associates Pty Ltd for the Respondents

1. The issue in these proceedings focuses upon the proper construction of certain infrastructure contribution conditions which are attached to a Development Approval given by the Maroochy Shire Council on 22 February 2007 in favour of GW Kilpatrick.  The approval was for a Material Change of Use (Office GFA 525 m² ) of a property situated at 55 Kingsford Smith Parade, Maroochydore.  The Maroochy shire Council’s successor, the Sunshine Coast Regional Council (Council) applies to the Court for declarations that the present registered proprietor of the land Recora Pty Ltd (Recora) has committed (and is committing) a development offence for its refusal to pay those contributions which it accepts are unpaid.  Council seeks enforcement orders against Recora for payment of contributions and against Recora and Golder Associates Pty Ltd the (present tenant and a company associated with Recora) restraining them from using the premises as an office until the payments are made.

Brief history of the site

1. Recora entered into a contract to purchase the site from Gregory William Kilpatrick and Denise Lorraine Kilpatrick on 28 March 2008.  As a special condition of that contract the vendors were to construct on the site a two-storeyed commercial office premises substantially in accordance with building plans which the vendors warranted had to be lodged with the Maroochy Shire Council.  Clause 1 of the Special Conditions referred to a development approval said to be dated 6 March 2007.  The contract subsequently settled and use commenced with Golder Associates Pty Ltd occupying the whole building.  It is not disputed that at the time of the completion of that contract the infrastructure contributions remained unpaid, and that the search undertaken with the Council, on behalf of Recora for the purposes of the purchase of the land was not sufficient to bring this fact to its notice.

The construction point

1. Despite the Respondents’ wide ranging defence filed 5 September 2011, there is really one issue in dispute which concerns the proper construction of the infrastructure payment conditions.  It is necessary for me to set out only Condition 6 (Sewerage Headworks) as Conditions 7 to 10 are relevantly in the same terms:

“6. The applicant must pay a monetary contribution towards sewerage headworks in accordance with Planning Scheme Policy No. DC1 – Water Supply and Sewerage Infrastructure.  The contribution must be paid prior to the commencement of use or issue of a certificate of classification whichever is the sooner.  The actual amount of the contribution must be in accordance with the Policy at the time of payment. 

Note:  For an estimate of contributions payable under current Policies refer to the Advisory Note section of this Decision Notice.”

1. There is no dispute that:

(a)       The Certificate of Classification issued by a private certifier was received   by Council on either 2 September or 3 September 2008.

(b)       Recora became the registered proprietor of the land on 11 September 2008.

(c)       Use as an office commenced some time thereafter in 2008.

1. Council did not contact Recora about the outstanding charges until 19 January 2011, and it is accepted that Council’s first letter incorrectly asserted that the Certificate of Classification had not been issued.  The long delay in pursuing the charges is not really explained by Council except by reference to the amalgamation. 

1. Mr Loos for the Respondents argues that his client Recora has not committed a development offence because after the date of the issue of the Certificate of Classification, Conditions 6 to 10 were “incapable” of being complied with on a proper construction of those conditions i.e each required an action to be taken by a specific date which fell before Recora became a successor in title to the original applicant.

1. That argument cannot be accepted. It is accepted by the Respondents that pursuant to s 3.5.28 of the Integrated Planning Act 1997 (“IPA”) which applied to the permit at the time, the approval attaches to the land and binds the owner and the owner’s successors in title.

1. Again there is no dispute about the relevant principles to be applied in construing approvals many of which are gathered together by his Honour Judge Rackemann in Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637 and in particular those in paragraphs 1 and 2 of the head note of the report:

“1. The development approval was a public document, which constituted the decision of the local authority, expressed in a formal manner and was required to operate in accordance with its terms.  It was not personal to the Applicant.  It ran with the land and may be relied upon by many persons dealing with the grantee.  A breach of its terms may result in proceedings not only at the instance of the local authority, but by any person.

2.   In construing an approval, the search was not for what the Council may have intended or the Applicant understood. Each approval must be according to its written terms, construed in context, but having regard to its enduring function.”  (references excluded)

1. The other relevant principle is referred to by his Honour Judge Brabazon QC in Hawkins and Izzard v Permarig Pty Ltd & Brisbane City Council (No 1) [2001] QPELR 414 at 417 and that is when dealing with an approval, a court is not dealing with an Act of Parliament and therefore an overly technical approach is not required. It should not be scrutinized in the same way as words used by a Parliamentary draftsperson.

1. In my opinion the Respondents’ approach tends to isolate the relevant words in Conditions 6 to 10 from the remaining important terms and the whole approval in a highly technical way, and ignores the principle that those who take the benefit of an approval should pay their share of demand on infrastructure created by development:  Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPELR 334; MC Property Investments Pty Ltd v Sunshine Coast Regional Council(No 2) [2011] QPEC 133 at [39].

1. The conditions are straightforward and in conventional terms. Each condition imposes an obligation on the applicant (and as a matter of law on their successor in title; in this case Recora), to pay an amount calculated by reference to the Planning Scheme Policy applicable at the time of payment. The condition sets a deadline to pay which had passed by the time Recora assumed the benefit of the approval. The failure to pay in a timely way does not discharge the responsibility to pay the contributions nor does it sever the condition from the approval. To be fair to Mr Loos, he does not suggest this but rather he submits that because of the failure to pay in a timely way, the condition was incapable of performance by his client once it became the beneficiary of the approval (with all its conditions). The condition still binds Recora and is one that was, and still is, breached by non-performance.

1. Section 580(1) of the Sustainable Planning Act 2009 (“SPA”) is in clear terms. A development offence is committed upon contravention of “a development approval, including any condition in the approval”. Once Recora’s construction of the relevant conditions is rejected, it clearly is contravening the conditions by not paying the contributions. Section 580(1) of the SPA is in identical terms to s 4.3.3(1) of the IPA which would have applied at the time the conditions were first contravened by non-performance by the original beneficiary of the approval.

1. The exercise of the court’s discretion to make enforcement orders is well known and is governed by the often quoted principles set out by Kirby P (as his Honour then was) in Warringah Shire Council v Sedevcic [1987] 10 NSWLR 325 at 339. The applicable principles are referred to by Mrs Kefford in her written outline at 16(b)-(f):

“(b)     the Council is not seeking to enforce a private right, rather it is seeking to ensure that an equitable payment is made for the demand for infrastructure created by the development;

(c)       if an enforcement order is not made, private advantage may be won in relation to use of the Property that is not enjoyed by others, in that development rights are acquired without honouring corresponding obligations;

(d)      the breach is not one that can only be remedied at great cost or inconvenience- it relates only to payment of money;

(e)       while the Respondents may not have been aware of the obligations for payment of contributions at the time they exercised the rights under the development approval, the information was readily able to be ascertained by requesting a Standard (or Full) Planning and Development Certificate. The First Respondent’s election to purchase the property without obtaining a Standard (or Full) Planning and Development Certificate ought not tell against the grant of relief; and

(f)       no hardship is suggested by the evidence.”

1. Mrs Kefford argues that the breach is more than a purely technical breach (another issue referred to in Sedevcic). That is probably correct although Council’s delay in pursuing the infrastructure payments is also relevant to the exercise of my discretion. In all the circumstances I am prepared to make the declaration sought in paragraph 1 of Council’s application and I so order.

1. I am inclined to adjourn the application to 9:30am on 2 March 2012 to give the parties time to confer.