Townacre Development Pty Ltd v Thuringowa City Council
[1995] QCA 20
•23/02/1995
IN THE COURT OF APPEAL
| SUPREME COURT OF QUEENSLAND | Appeal No. 55 of 1994 |
| Brisbane |
[Townacre Development P/L v. Council of the City of
Thuringowa]
BETWEEN:
TOWNACRE DEVELOPMENT PTY LTD
(Appellant) Appellant
AND:
COUNCIL OF THE CITY OF THURINGOWA
(Respondent) Respondent
FITZGERALD P.
DAVIES J.A.
MCPHERSON J.A.
Judgment delivered 23/02/1995
SEPARATE REASONS FOR JUDGMENT FITZGERALD P., DAVIES, AND
MCPHERSON JJ.A., ALL CONCURRING AS TO THE ORDERS MADE.
APPEAL ALLOWED WITH COSTS TO BE TAXED.
IN ACCORDANCE WITH THE PARTIES' AGREEMENT AS TO WHAT SHOULD
OCCUR IN THIS EVENTUALITY, THE FOLLOWING CONDITION, IN WHICH
THE APPELLANT IS REFERRED TO AS THE "SUBDIVIDER", SHOULD
REPLACE THE RELEVANT CONDITION IMPOSED BY THE COUNCIL ON ITS
APPROVAL OF THE APPELLANT'S SUBDIVISIONAL APPLICATION.
"5.1 THE SUBDIVIDER SHALL PAY TO THE COUNCIL A CONTRIBUTION
TOWARDS THE COST OF THE PROVISION OF WATER SUPPLY AND
SEWERAGE HEADWORKS PURSUANT TO THE RELEVANT PROVISIONS OF
THE LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990.
5.2 THE AMOUNTS OF SUCH CONTRIBUTIONS ARE SIXTEEN THOUSAND
TWO HUNDRED AND TWENTY-FIVE DOLLARS AND FORTY-TWO CENTS
($16,225.42) PER HECTARE OF SUBDIVISION FOR WATER SUPPLY
HEADWORKS AND ELEVEN THOUSAND ONE HUNDRED AND SEVENTEEN
DOLLARS AND EIGHTY-SEVEN CENTS ($11,117.87) PER HECTARE OF
SUBDIVISION FOR SEWERAGE HEADWORKS.
5.3 THE CONTRIBUTIONS REQUIRED TO BE PAID TO THE COUNCIL
TOWARDS THE COST OF THE RELEVANT HEADWORKS PURSUANT TO THIS
APPROVAL, AS PROVIDED IN CONDITION 5.2 HEREOF, SHALL BE
PAYABLE TO THE COUNCIL PRIOR TO THE COUNCIL NOTING ITS
APPROVAL UNDER SEAL ON THE RELEVANT PLANS OF SURVEY."
CATCHWORDS: LOCAL GOVERNMENT - effect of s. 6.2(6)(a) Local Government (Planning & Environment) Act 1990 - whether local government entitled to require a contribution for cost of water supply and sewerage headworks - whether limitation in by-law preserved by s. 6.2(6)(a) PEA.
STATUTORY INTERPRETATION - "relevant date" in s. 6.2(6)(a) - whether repeal of s. 34(12)(l) Local Government Act 1936 also repealed relevant by-law or whether legislative power of by-law arose from s. 30 of that Act
| Counsel: | R.W. Gotterson Q.C. with him P.J. Lyons Q.C. for the Appellant S. Couper Q.C. with him K. Wilson for the Respondent |
| Solicitors: | Wilson Ryan & Grose for the Appellant City Solicitor for the Respondent |
| Date of Hearing: | 8 November 1994 |
| IN THE COURT OF APPEAL | [1995] QCA 020 |
| SUPREME COURT OF QUEENSLAND | Appeal No. 55 of 1994 |
| Brisbane | |
| Before | Fitzgerald P. Davies J.A. McPherson J.A. |
[Townacre Development P/L v. Council of the City of
Thuringowa]
BETWEEN:
TOWNACRE DEVELOPMENT PTY LTD
(Appellant) Appellant
AND:
COUNCIL OF THE CITY OF THURINGOWA
(Respondent) Respondent
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 23/02/1995
This appeal from the Planning and Environment Court at Townsville involves a dispute as to the amount which the appellant, Townacre Pty Ltd., is required to pay to the respondent, Council of the City of Thuringowa, for "contribution towards the cost of the provision of Water Supply and Sewerage Headworks". On 16 September 1993, the appellant applied for the Council's approval of a subdivision of land at Burnda Street, Kirwan; the Council approved the application subject to a number of conditions; the appellant appealed to the Planning and Environment Court in respect of some of the conditions; and the parties have agreed on all matters except the amount of the appellant's "contribution" for "Water Supply and Sewerage Headworks".
The Court has been provided with an agreed form of the appropriate condition and details of different amounts; the amount to be inserted in the condition is dependent on which party is successful.
The appellant's application to the Council was made under the Local Government (Planning and Environment) Act 1990 which, by s. 6.2, permits a local authority to approve an application for approval of a subdivision subject to a condition requiring payment of an amount "towards the cost ... [of] ... water supply headworks or sewerage headworks (or both) ...". However, by sub-s. 6.2(6)(a), the "amount of any contribution ... is ... not to exceed the cost ... of [water supply and sewerage] works which the Local Authority could lawfully impose by way of any by-law that was in existence at [1 September 1985] and which required or may have required ... the applicant [for subdivision] to contribute towards the cost of ... [water supply and sewerage] works". At first glance, this is a curious provision, in that it restricts the contribution which a local authority may require by reference to a by-law in existence at 1 September 1985, irrespective of whether or not the by-law had subsequently been amended or repealed prior to the enactment of the Local Government (Planning and Environment) Act. As will emerge, this reference back to the beginning of September 1985 is explained by amendments then made to the Local Government Act, 1936 as amended.
The parties' dispute concerns the operation of sub-s. 6.2(6)(a) in the particular circumstances. Although each advanced an alternative argument based on a different premise, both primary arguments asserted that there was a material by-law of the Council at 1 September 1985, but disagreed as to that by-law's effect.
In its alternative argument, the appellant submitted that, at 1 September 1985, there was no material by-law in existence. It followed, it was said, that the appeal should succeed, and indeed that the appellant should not be required to pay any amount to the Council, or should be required to pay less than had been agreed as the appropriate amount in the event of the appeal's success. But the appellant's alternative argument is flawed. If sub-s. 6.2(6)(a) of the Local Government (Planning and Environment) Act is to be given effect according to its literal terms and there was no by-law, at 1 September 1985, "which required ... [an] applicant [for subdivision] to contribute towards the cost of ... [water supply and sewerage] works", the subsection could not operate, and the Council's power to require contribution under s. 6.2 would be freed from the limitation provided for by sub-s. 6.2(6)(a). And, if there was a by-law at 1 September 1985 "which required ... [an] applicant for subdivision to contribute towards the cost of ... [water supply and sewerage] works" but was not limited in the manner contended for by the appellant, sub-s. 6.2(6)(a) would not avail the appellant. If sub-s. 6.2(6)(a) be taken literally, the appeal can only succeed if, at 1 September 1985, there was a by-law in existence which:
(i) required or may have required [an] applicant to contribute towards the cost of ... [water supply and sewerage] works"; and
(ii) limited, in the manner contended for by the appellant, the contribution which the Council could require.
The Council's alternative argument accepted that there was a material by-law in existence at 1 September 1985, but it was submitted that sub-s. 6.2(6)(a) did not limit the contribution to the amount which the Council was permitted to require by that by-law; rather, according to the Council, sub-s. 6.2(6)(a) relevantly provided that, once a by-law permitting any relevant contribution to be required existed at 1 September 1985, contribution could be required of any amount which, at that date, the Council ".... could lawfully impose by way of by-law", i.e., could lawfully have imposed by a different by-law. This argument also misunderstands both the literal meaning, and evident purpose, of sub-s. 6.2(6)(a), which is directed to continuing, in the circumstances to which it is applicable, any previous limitation upon the contribution which a local authority could require. Further, the argument was based upon the proposition that, "... at 1 September, 1985, a local authority could, in the absence of the restrictive wording of its own by-laws, require a contribution for all sewerage and water supply headworks charges". As will be seen below, sub-s. 34(12H)(aa) of the Local Government Act expressly provided to the contrary.
The parties' dispute therefore falls to be decided by reference to their primary arguments, which, as stated above, disagree as to the effect of the Council's material by-law at 1 September 1985.
At 31 August 1985, Ch. 29 of the Council's by-laws, which related to subdivision of land, contained a provision, by- law 9(3)(ix)(a), which stated that the Council "may require" an applicant for approval of a subdivision to pay a sum "in respect of the cost of providing ... water supply service or sewerage service ...". It was not suggested that there was any material difference, for present purposes, between such a by-law and the by-law spoken of it sub-s. 6.2(6)(a) of the Local Government (Planning and Environment) Act, i.e., a by- law "which required or may have required [an] applicant [for subdivision] to contribute towards the cost of ... [water supply and sewerage] works"; on the contrary, as indicated above, the arguments for both parties proceeded from the premise that the Council's material by-law at 1 September (and 31 August) 1985 met the description in sub-s. 6.2(6)(a) of the Local Government (Planning and Environment) Act.
The Council's material by-law had been gazetted on 13 April 1974, whereupon it "[had] the same force and effect as if enacted in [the Local Government] Act and shall not be questioned in any proceedings whatsoever": see sub-s. 31(27)(ix) of that Act. Nonetheless, at 31 August 1985, there was a limitation on the Council's power as expressed in its material by-law, as it conceded. Both parties accepted, by reference to Sabdoran Pty Ltd v. Hervey Bay Town Council (1983) 2 Qd.R. 172, that, at that date, the Council's material by-law had valid operation only to the extent that it was consistent with sub-s. 34(12)(l) of the Local Government Act.
That was accepted as the position irrespective of whether the material by-law was made under that sub-section, or the general by-law making power in s. 30 of that Act, or both.
It is not disputed that the appellant would be entitled to succeed on this appeal if the "relevant date" for sub-s. 6.2(6)(a) of the Local Government (Planning and Environment) Act (as defined in sub-s. 6.2(1)) had been 31 August 1985.
The appellant's submission is that the Council's material by-law was unchanged at 1 September1985, while the Council's contention is that, at the later date, by-law 9(3)(ix)(a) of Ch. 29 of its by-laws operated according to its terms, free from the limitation previously imposed by sub-s. 34(12)(l) of the Local Government Act, because of the repeal of that provision that day.
A number of amendments were made to the Local Government Act commencing on 1 September 1985. So far as presently material:
(i) para. (l) was omitted from sub-s. 34(12);
(ii) a new sub-s. (12H) was inserted in s. 34; and
(iii) a new sub-s. (18E) was inserted in s. 33.
The effect of (ii) and (iii) was to introduce a system which is substantially repeated in s. 6.2 of the Local Government (Planning and Environment) Act, which is plainly enough intended to continue the previous position, so far as presently relevant; the difficulty which exists arises because, whereas sub-s. 34(12H) of the Local Government Act referred to the Council's material by-law at 31 August 1985, the "relevant date" for s. 6.2 of the Local Government (Planning and Environment) Act is 1 September 1985.
Subsection 34(12H) of the Local Government Act permitted a local authority to require a contribution in relation to water supply and sewerage and to impose such a requirement as a condition of its approval of a subdivisional application, but once again there was a limitation, which was contained in sub-s. 34(12H)(aa).
Subsection 34(12H) must be considered with sub-ss. 33(18E)(e) and (f)(iii), which are material for present purposes because, although sub-s. 33(18E) is otherwise concerned with different applications, i.e. not for subdivisional approval, para. (e) of sub-s. 33(18E) also dealt with contributions required under sub-s. 34(12H).
Subsections 33(18E)(e) and (f)(iii) provided:
"(e) The amount of any contribution required to be paid to a Local Authority ... under section 34(12H) shall be determined in accordance with a policy fixed from time to time by the Local Authority by resolution.
(f) A policy fixed by the Local Authority pursuant to paragraph (e) shall -
...
(iii) supersede any ... by-law ... made by the Local Authority in relation to a matter contained in the policy."
The present significance of sub-s. 33(18E)(e) lies in the fact that it required the "amount of any contribution" under sub-s. 34(12H) to be "fixed from time to time by the Local Authority by resolution", not by by-law. Obviously, the power of a local authority to pass a resolution for that purpose was limited by sub-s. 34(12H)(aa). Policies were subsequently adopted by the Council, but that is of no present significance.
Subsection 34(12H)(aa) of the Local Government Act provided that, in circumstances which do not need to be discussed:
"the Local Authority shall not in relation to that application impose, ... any condition requiring the applicant to pay the cost or a contribution towards the cost of sewerage headworks, water supply headworks, ... save where, immediately prior to [1 September 1985] there was in existence a by-law made by the Local Authority pursuant to section 34(12)(1) of the Local Government Act 1936-1982 (whether or not that by-law has since been repealed) requiring an applicant for approval ... to subdivide land to contribute towards the cost of the provision of water supply or sewerage or water supply and sewerage to the land to be subdivided ...:
Provided that such a condition shall not require the applicant to make a contribution greater than the amount of the contribution that would have been payable under that by-law."
Although at one point in its argument the appellant submitted that the Council's material by-law at 31 August 1985 had been made "under" s. 30 of the Local Government Act, not sub-s. 34(12)(l), both arguments accepted that it was "made ... pursuant to section 34(12(l) ..." within the meaning of sub-s. 34(12H)(aa). Further, there is no disagreement as to the relevant effect of that provision at 31 August 1985. It is accordingly unnecessary to have recourse to the terms in which sub-s. 34(12)(l) then existed. On and from the following day, 1 September 1985, the Council's power to impose a condition requiring a contribution to the cost of water supply and sewerage headworks on an approval to subdivide was limited by sub-s. 34(12H)(aa), in the circumstances to which it related, to the contribution which could have been required the previous day, in accordance with the operation at that time of the Council's material by-law. Further, that limitation continued until the Local Government Act was replaced by the Local Government (Planning and Environment) Act, which explains why sub-s. 6.2(6)(a) refers back to 1985, but not why the beginning of September was chosen over the end of August as the "relevant date" for this purpose.
While sub-s. 6.2(6)(a), when it came into operation, might have retrospectively altered the position which existed at 1 September 1985, there is nothing to indicate that that was intended and neither party suggested otherwise. The position at 1 September 1985 is therefore to be determined by reference to the law then in force. As stated, both parties asserted that the Council's material by-law was then in existence, but they differed as to its effect. According to the appellant, it continued to limit the appellant in the manner, and to the extent, of its operation the previous day. The Council submitted that it operated free from the previous limitation, which had derived from sub-s. 34(12)(l) which had been repealed.
As at 1 September 1985, s. 21 of the Acts Interpretation
Act, 1954 as amended, provided:
"21. (1) Continuance of repealed provisions. former Act and substitutes provisions in lieu thereof, the repealed provisions shall, unless the contrary intention appears, remain in force until the substituted provisions come into operation.
(2) Continuance of existing regulations, etc. ... by-laws ... all ... by-laws ... made and immediately prior to the repeal in force under the repealed Act, so far as the same are not inconsistent with the provisions of the repealing Act, shall, unless the contrary is expressly provided, to that extent remain in force and shall be deemed to have been made under and for the purposes of the repealing Act, and may be repealed, rescinded, revoked, altered, varied, amended, or otherwise modified under that Act.
(3) Where ... by-laws ... made under any repealed Act have remained in force after the repeal of such Act, any general ... by-laws ... made under any Act which has been substituted for the repealed Act shall supersede and have the effect of repealing those made under the repealed Act unless the contrary is expressly provided."
Subsection 21(1) has since been amended, and sub-ss. 21(2) and (3) have been repealed and not replaced in either the Acts Interpretation Act or the Statutory Instrument Acts 1992. Although the reason was not explained, both parties accepted, at least implicitly, that sub-s. 21(2) did not operate at 1 September 1985 to continue the Council's material by law "in force"; perhaps it was considered that sub-s. 21(2) of the Acts Interpretation Act did not apply if the enactment under which the by-laws had been made contained a provision such as sub-s. 31(27), or that the statutes containing the amendments to the Local Government Act which commenced on 1 September 1985 were not "repealing Act[s]" and that that Act, in the form immediately prior to those amendments, was not a "repealed Act"; it might also have been thought that the by-law, at 31 August 1985, had been made "under" s. 30, not sub-s. 34(12)(l) of the Local Government Act, or that the amendments to that Act did not contain power to make relevant by-laws (which seems correct). In the circumstances, including the common attitude of the parties, it is unnecessary to pursue these questions or (for this purpose) the question whether the material by-law, as it existed at 31 August 1985, was inconsistent with the amending legislation which commenced the next day. Rather, it seems appropriate to proceed on the basis which the parties adopted, i.e., that sub-s. 21(2) of the Acts Interpretation Act is not presently applicable, merely noting that, if it applied, it would entitle the appellant to succeed, providing, as it does, for the by-law, as previously "in force", to "remain in force".
Apart from a provision such as sub-s. 21(2), the effect of the repeal of a provision under which a by-law has been made is generally to repeal the by-law unless the statute by which the repeal was effected discloses an intention to the contrary: Bird v. John Sharp & Sons Pty Ltd (1942) 66 C.L.R. 233, 250; Victorian Chamber of Manufacturers v. The Commonwealth (Women's Employment Regulations) (1943) 67 C.L.R. 347, 372; R. v. Kelly; ex p Waterside Workers' Federation of Australia (1952) 85 C.L.R. 601, 626-627. Once again, however, there is a question whether the Council's material by-law at 31 August 1985 was made under s. 30 or sub-s. 34(12)(l) of the Local Government Act. Further, sub- s. 31(27)(ix) must be kept in mind. Nonetheless, the legislative intention to be discerned in the amendments to the Local Government Act which commenced on 1 October 1985 plainly is of central importance.
There was debate between the parties (by reference to such cases as Birch v. Allen (1941) 65 C.L.R. 621, Kostrzewa v. Southern Electric Authority of Queensland (1970) 120 C.L.R. 653 and Mason v. The Nominal Defendant (Qld) (1987) 2 Qd.R. 190, 199) concerning the proper interpretation of the Council's material by-law at 1 September 1985. But the resolution of their dispute does not depend on the construction of the by-law, but on the intent of the amendments to the Local Government Act which commenced on 1 September 1985 concerning the by-law's operation.
Once that is decided, the Council's argument encounters significant difficulties, especially when regard is had to its assertion that its material by-law continued in existence that day, and more so when that assertion is taken with the submission that that was so notwithstanding that the by-law was "ineffective to impose a contribution even if [the Council then] had no relevant policy". If that were so, the intended purpose of the continued existence of the material by-law could only have been a limitation upon the contribution which could lawfully be required by the Council, although, as will be seen, that was unnecessary.
There is little indication in the amendments to the Local Government Act which commenced on 1 September 1985 that the Council's material by-law was to continue in existence. At most, that was recognised as a possibility by the phrase in parenthesis in sub-s. 34(12H)(aa) - "(whether or not that by-law has since been repealed)" - and by sub-s. 33(18)(f)(ii). But, assuming continued existence - as both parties assert - the critical question is whether it was intended that the same, limited by-law continue or that a new, wider power be bestowed upon the Council.
The language of the amendments to the Local Government Act which commenced on 1 September 1985, and the Act itself as it existed at that day, gave no decisive indication. The search for what the legislation intended can only be conducted by reference to the purpose for which the Council's material by-law was, according to the parties, continued in existence.
It is extremely unlikely that it would have been intended to change the operation of the Council's material by-law on 1 September 1985 if the intended purpose of its continued existence was to limit the contribution which the Council could lawfully require. Sub-section 34(12H)(aa) was already performing that function by reference to the by-law as it existed the previous day. If the Council is correct, there would have been conflict between the two limitations in the area where they overlapped, which they would have, at least in part. On the other hand, if the by-law which continued to exist at 1 September 1985 was identical with that which existed the previous day, it would have been totally consistent with sub-s. 34(12H)(aa), although otiose.
Assuming the continued existence of the material by-law in accordance with the parties' arguments, it is most likely that its operation was intended to be consistent, rather than in conflict, with sub-s. 34(12H)(aa).
Because of the parties' approach, it is unnecessary to form a concluded opinion as to the outcome of the dispute if the Council's material by-law did not continue in existence at 1 September 1985. However, my provisional view is that the appellant would succeed on the basis that there was a manifest error in the "relevant date" for the purpose of sub-s. 6.2(6)(a), which intended to further extend the position, at least to a restricted extent, which initially had been continued by sub-s. 34(12H)(aa): cf. Cooper Brookes
(Wollongong) Pty Ltd v. Federal Commissioner of Taxation
(1981) 147 C.L.R. 297; MacAlister v. R. (1990) 169 C.L.R. 324, 330. Indeed, the Council did not contend for, but argued against, an outcome which denied effect to sub-s. 6.2(6)(a), saying:
"Such a result is absurd and clearly not intended by the legislature (Votes and Proceedings of the Legislative Assembly, Vol. 317 pp. 6535-6536, 6781-6782, 6785)".
However the matter is approached, in my opinion the appellant is entitled to succeed and the appeal should be allowed, with costs to be taxed. In accordance with the parties' agreement as to what should occur in this eventuality, the following condition, in which the appellant is referred to as the "subdivider", should replace the relevant condition imposed by the Council on its approval of the appellant's subdivisional application.
"5.1 The subdivider shall pay to the Council a contribution towards the cost of the provision of Water Supply and Sewerage Headworks pursuant to the relevant provisions of the Local Government (Planning and Environment) Act 1990.
5.2 The amounts of such contributions are sixteen thousand two hundred and twenty-five dollars and forty-two cents ($16,225.42) per hectare of subdivision for Water Supply Headworks and eleven thousand one hundred and seventeen dollars and eighty-seven cents ($11,117.87) per hectare of subdivision for Sewerage Headworks.
5.3 The contributions required to be paid to the Council towards the cost of the relevant Headworks pursuant to this approval, as provided in Condition 5.2 hereof, shall be payable to the Council prior to the Council noting its approval under seal on the relevant plans of survey."
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 55 OF 1994
Brisbane
| Before | Fitzgerald P. Davies J.A. McPherson J.A. |
[Townacre v. Thuringowa C.C]
BETWEEN:
TOWNACRE DEVELOPMENT PTY. LTD.
Appellant
AND:
COUNCIL OF THE CITY OF THURINGOWA
Respondent
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered the 23rd day of February 1995
I have had the advantage of reading the reasons of the President and McPherson J.A. Their extensive reference to the relevant legislation and judicial decisions makes it unnecessary for me to refer to them in detail. I shall do so only where it is necessary to explain my reasons.
By the time this appeal came to be argued in this Court there remained only one issue between the parties. It involved the construction and application of s.6.2(6)(a) of the Local Government (Planning and Environment) Act 1990. Sub-section (2) of that section provides that where a subdivisional application is made to a Local Authority and the Local Authority determines that water or sewerage or both should be made available to the relevant land it may, as a condition of approval, require the applicant to pay the Local Authority an amount towards the cost incurred by it in providing water supply headworks or sewerage headworks or both or external water supply or sewerage works or both. Sub-section (6) then provides that, where the land sought to be subdivided was, on 1 September 1985, in a zone which permitted its use for that purpose, that cost shall not exceed the cost which the Local Authority could lawfully impose by way of any by-law that was in existence on that date which required or may have required the applicant to contribute towards the cost of those works.
| 2. | be imposed by way of that by-law. |
In the present case the respondent Council required the applicant, as a condition of subdivisional approval of its land, to pay an amount towards the cost of water supply and sewerage headworks. The question in issue is whether sub- s.(6) limits the amount of that contribution. It was common ground that, on 1 September 1985, that land was in a zone which permitted its subdivision. Consequently the question depends on whether:
1. There was in existence on 1 September 1985 a by-law which required an applicant for subdivisional approval to contribute to the cost of water supply and sewerage headworks available to service the land; and
There was a limitation on the cost which could lawfully both of those questions were answered in the affirmative the appellant must succeed and the contribution in respect of headworks must be limited to the cost of mains or augmentation of mains or pumping stations or augmentation of pumping stations not being mains or pumping stations constructed prior to the coming into effect of the relevant by-law. The parties also agreed upon the appropriate orders which should be made in the event of affirmative answers to both of those questions. It was also common ground between them that, unless there were affirmative answers to both those questions, the appeal must fail. I turn now to those questions.
1. Whether any such by-law was in existence on 1 September 1985
There was undoubtedly such a by-law in existence on and prior to 31 August 1985. This was cl.9(3)(ix) of Ch.29 of the Council's By-laws which had been in operation since 1974. It provided that the Council might require an applicant for subdivisional approval to pay a part of the cost of the water supply or sewerage service being that proportion of its total cost as the area of the subject land bore to the whole of the area served by the service. Notwithstanding the apparent generality of that by-law, s.34(12)(l) of the Local Government Act 1936, until its repeal on 1 September 1985, provided:
"(12) In respect of any application for approval of a subdivision of land (whether the subdivision involves the opening of a road or not) the Local Authority shall take into consideration -
....
(l) Whether in accordance with a by-law of the Local Authority, the applicant, in respect of water supply or sewerage or both water supply and sewerage should be required to -
(i) provide for the reticulation thereof
to the land to be subdivided;
(ii) contribute towards the cost of the
provision thereof (other than via
reticulation) to the land to be
subdivided, by way of a contribution
towards the cost (whether incurred before
or after the making of the application)
in connection with the construction of
mains, or the augmentation of existing
mains, or the construction of pumping
stations, or the augmentation of existing
pumping stations, required to be
undertaken by the Local Authority for
such provision, other than the cost of
constructing a main or pumping station
which is in existence at the date of the
coming into operation of the by-law;".
The effect of its repeal is relevant to the second question posed above. I shall return to it when discussing that question. But it is arguable that it is the source of the power to make cl.9(3)(ix), and that consequently its repeal on 1 September 1985 automatically repealed that by-law.
The power of the Council to make by-laws is conferred on it by s.30 of the Local Government Act. Notwithstanding an apparently contrary view expressed in s.34(12H)(aa), s.34(12)(l) did not confer any additional by-law making power. It required a local authority which had a by-law such as cl.9(3)(ix) of Ch.29 to take into consideration whether, in accordance with it, an applicant for subdivision should, inter alia, contribute to the cost of certain headworks; and it limited the contribution which could be required in respect of such headworks. Consequently its repeal on 1 September 1985 could not have repealed the by- law. What it could have done, as the respondent contends here it did, was remove the limitation which sub-s.34(12)(l) imposed on the contribution which could be required pursuant to that by-law.
The by-law could have been superseded, on 1 September
1985, by a policy fixed by resolution of the Council: Local
Government Act ss.33(18E)(e) and (f)(iii). But it was not
submitted to this Court that that had occurred.
Consequently cl.9(3)(ix) remained in existence on 1
September 1985.
2. Was there a limitation on the cost which could lawfully be imposed by way of that by-law?
The respondent's contention was that the repeal, on 1 September 1985, of s.34(12)(l) left the power conferred by cl.9(3)(ix) unfettered. Section 34(12)(l) was replaced, on 1 September 1985, by s.34(12H) which, in para.(aa), provided that where land the subject of a subdivisional application was on that date included in a zone which permitted its use for that purpose, the Local Authority should not impose any condition requiring contribution to water supply or sewerage headworks except where, immediately prior to 1 September 1985, there was in existence a by-law -
"pursuant to section 34(12)(l) ... requiring an applicant for approval ... to subdivide land to contribute towards the cost of the provision of water supply or sewerage ... to the land to be subdivided ...
Provided that such a condition shall not require the applicant to make a contribution greater than the amount of the contribution that would have been payable under that by-law."
It follows from what I have said that it is not correct to describe cl.9(3)(ix) as a by-law "pursuant to section 34(12)(l)". Nor is it entirely accurate to describe it as "requiring an applicant for approval ... to subdivide land to contribute towards the cost of the provision of water supply or sewerage ... ". Nevertheless it should be accepted that those phrases are intended to describe by-laws such as cl.9(3)(ix). Nor, given the poor drafting of both ss.34(12H) and 6.2(6)(a), is there any difficulty in concluding that the limitation contained in the proviso to para.(aa) of s.34(12H) is a limitation imposed "by way of" cl.9(3)(ix) within the meaning of those words in s.6.2(6)(a) because that limitation, though imposed by the combined effect of the proviso to s.34(12H)(aa) and s.34(12)(l), was imposed by reference to that by-law. That conclusion is sufficient to dispose of the appeal in the appellant's favour because it follows that the proviso to s.34(12H)(aa), on 1 September 1985, imposed a limitation on the amount which could lawfully be imposed by way of cl.9(3)(ix) on the cost which the Council could have required the appellant to contribute towards the cost of water supply or sewerage headworks.
That conclusion also accords with the legislative history of the relevant provisions. Construed in that way s.6.2(6)(a) is consistent with the earlier legislative intention, evidenced in s.34(12H)(aa), not to burden land, which could have been lawfully subdivided prior to 1 September 1985, with any greater obligation to contribute to water supply or sewerage headworks than if it had been subdivided prior to that date. Indeed it is difficult to see what other intention s.6.2(6)(a) could have.
There is a strong possibility, having regard to the likelihood of that consistency in legislative intent, that the difference in form between s.34(12H)(aa) ("immediately prior to [1 September 1985]") and s.6.2(6)(a) ("in existence at [1 September 1985]") arises from an error in drafting in s.6.2. But in view of my conclusion it is unnecessary to resolve that possibility.
For those reasons I would also allow the appeal with costs and substitute for the relevant condition imposed by the Council that set out in the reasons of the President.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 55 of 1994
Brisbane
| Before | Fitzgerald P. Davies J.A. McPherson J.A. |
[Townacre Development P/L. v. Thuringowa C.C.]
BETWEEN
TOWNACRE DEVELOPMENT PTY. LTD Appellant
AND
COUNCIL OF THE CITY OF THURINGOWA Respondent
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the 23rd day of February 1995
This appeal from the Planning and Environment Court concerns the validity of a requirement imposed by the respondent local authority as a condition of granting approval for a subdivision of land that was sought by the appellant by application dated 6 September 1993. The requirement was that the appellant make a specified financial contribution toward the cost of providing water supply and sewerage headworks in the relevant part of the local authority area. The validity of the condition is said to turn primarily on the proper meaning and effect of s.6.2(6)(a) of the Local Government (Planning and Environment) Act 1990 (the 1990 Act). Section 6.2 authorises a local authority to approve an application to subdivide land subject to a condition requiring payment of an amount toward the cost, incurred or to be incurred, of providing water supply or sewerage headworks. However, the power to do so is qualified by s.6.2(6)(a), which at the time the subject application was made declared that the amount of any such contribution was not to exceed the cost of those works:
"... which the local authority could lawfully impose by way of any by-law that was in existence at the relevant date and which required or may have required ... the applicant to contribute towards the costs of ... those works."
By s.6.2(1)(a), "relevant date" means 1 September 1985.
To understand the point at issue it is necessary to refer to the history and policy of the legislation, and to some extent also to judicial decisions, regulating the power of local authorities in Queensland to impose on a developer an obligation to contribute to the cost of providing water supply and sewerage services to new residential subdivisions, and to make that obligation a condition of the approval for a proposed subdivision.
Nowadays it seems self-evident that, if proper standards of living and health are to be maintained in new residential areas, it is essential that adequate systems of water supply and sewerage be available to purchasers or occupiers of the separate parcels of land that will result from the subdivision. However, until the early 1960s, it was possible, at least in some local authority areas, for a subdivision to be carried through and for subdivided lots or parcels in it to be sold off, without services of that kind being provided by the developer. As late as 1967, Byth D.C.J. felt called on to say that it was proper and relevant "in these times" for a local authority to approve a subdivisional development on the condition that water supply and sewerage be reticulated throughout the estate at the subdivider's expense. See Seganfreddo v. Townsville City Council (1967) 14 L.G.R.A. 34, 40.
In Queensland, in the form in which the Local Government Act 1936 stood in 1965, a local authority was, in respect of an application for approval of a subdivision of land, required by s.34(12) of the Act to consider a number of factors, including under para.(k) of that subsection "the costs of supplying water ... to the several parcels ...". Queensland Statutes Reprint 1828-1962, vol. 10, at 456. In law, however, there were and still are underlying restrictions on the extent to which an obligation to provide water supply or sewerage services, or to pay for or contribute to the cost of providing them, could be made a condition of approval to subdivide. In Lloyd v. Robinson (1962) 107 C.L.R. 142, 153, the High Court said that a condition requiring a subdivider to do something outside the area of the proposed subdivision could not be imposed if it was "so unrelated to the land to be subdivided because of remoteness from it or some other circumstance" that there was no real connection with that land. In addition, s.33(16C)(a) of the Act, adopted in consequence of a report presented to Parliament by Mr A.L. Bennett Q.C. in 1967, expressly made it unlawful to subject an approval for subdivision to a condition that was not reasonably required for that purpose. See Cardwell Shire Council v. King Ranch Australia Pty. Ltd (1984) 58 A.L.J.R. 386; Wootton v. Woongarra Shire Council (1985) 56 L.G.R.A. 301.
In this context, the particular difficulty encountered in providing water supply and sewerage services is that much of the cost of doing so tends to be incurred, often over a lengthy period of time, in carrying out works outside the land to be subdivided. The water supply ordinarily comes from existing systems served by reservoirs and other works elsewhere in the local authority area, and it then has to be reticulated to the individual parcels which come into existence on subdivision. At the time when Seganfreddo v. Townsville City Council was decided, the Local Government Act had already been amended to add a further paragraph (l) to s.34(12) requiring the local authority, on an application for subdivisional approval, to consider whether "in accordance with a by-law of the local authority, the applicant should be required to provide for the reticulation of water supply, or sewerage, or both ... to the land to be subdivided".
A subsequent amendment to the Act expanded both the duty and correspondingly the power of local authorities to consider whether such a condition should be imposed at the time of approving a subdivision. In 1971, s.34(12)(l) of the Act was replaced by a new para.(l) which (in addition to the provision of water reticulation) referred to requiring contribution to the cost, whether incurred before or after the application for approval, of providing for construction or augmentation of mains or pumping stations. See 1971 Annual Statutes, at 923-924. Thereafter, in Andrews v. Brisbane City Council [1980] A.P.A. 82, the powers of a local authority under s.34(12)(l) were held not to extend to imposing a condition requiring a contribution be made to the cost of sewerage treatment headworks. A further decision, this time of the Full Court in Sabdoran Pty. Limited v. Hervey Bay Town Council [1983] 2 Qd.R. 172, held that under s.34(12)(l) such a contribution could be required only if related to the cost of water supply systems, mains and pumping stations that were identifiable.
The decision in Sabdoran v. Hervey Bay T.C. made it difficult for local authorities to include in the contribution sought to be imposed on granting subdivisional approval a cost component designed to cater for the cost of future water supply and sewerage headworks or other works which had not yet come into existence or been sufficiently planned and costed at the time when the application was considered. The decision was overtaken by a further legislative amendment in 1983 in the form of the Local Government Act Amendment Act 1983 (the Amending Act of 1983). Section 12(a) of it repealed s.34(12)(l) by omitting it altogether. A new provision, in the form of s. 34(12H), was inserted by s.12(b) of that Act. See 1983 Annual Statutes, at 103-104. The effect of it was to authorise a local authority, as a condition of its granting an application to subdivide, to require the applicant to pay a contribution toward the cost incurred or to be incurred in providing water supply headworks, sewerage headworks, or other works, as defined in s.33(18E) of the Act. The power to do so was exercisable in any case where the local authority had constructed or was constructing a water supply scheme or a sewerage scheme, and where it was prepared to provide or had provided, as part of that scheme, "headworks" adequate to make water or sewerage available to the land to be subdivided.
Section 33(18E) was the general provision under the Amending Act of 1983 which thereafter regulated the powers of local authorities to approve applications to rezone land. Such applications may, and in practice often do, also include an application to subdivide some or all of the land in question. Like s.34(12H), the provision of s.33(18E) authorised the local authority to make it a condition of granting its approval to an application for rezoning and subdivision that the applicant contribute to the cost of water supply and sewerage headworks, as defined in s.33(18E), forming part of a scheme which had been or was in the process of being constructed.
By authorising the local authority to require a contribution to water supply and sewerage headworks, s.33(18E) and s.34(12H) displaced the decision in Sabdoran v. Hervey Bay T.C. Those provisions also altered the procedure to be followed by the local authority in arriving at the cost of providing water supply and sewerage headworks and the contribution to be made to it. Although it need not be examined here in detail, the new regime initiated by s.33(18E) envisaged the adoption by the local authority of a "policy" on the matter of contributions, which was to be fixed from time to time by resolution of the local authority. By s.33(18E)(e), the operation of this procedure was extended to subdivisional approvals under s.34(12H), so that a "policy" had to be in place before a contribution could be required from a developer to the cost of providing water supply or sewerage services to the land to be subdivided. By s.33(18E)(f)(iii) a policy so fixed by the local authority was declared to "supersede" any by-law in relation to the same matter.
The new procedure introduced by the Amending Act of 1983 differed from the procedure which had prevailed before then. Previously the legislative amendments of 1966 and 1971 had, in identifying the extent to which a local authority was entitled to consider whether contribution should be made to the cost of providing water supply or sewerage services, made it a requisite for the exercise of that power under s.34(12)(l) that it be "in accordance with a by-law of the local authority". Unless there was an appropriate by-law authorising the imposition of a requirement to contribute, the local authority had no power to consider making it a condition of the approval. See Seganfreddo v. Townsville C.C. (1967) 14 L.G.R.A. 34, 39. Hence, to enable a charge for water supply or sewerage services to be imposed on the developer as a condition of the approval, the local authority at that time needed first of all to make a by-law in appropriate terms.
Under the Local Government Act 1936, the power to make by-laws is conferred by s.30. The power is conferred in language expressed in terms that are at times specific and at other times in wide and general form, including among other relevant matters "subdivision of land". Although decisions like Lloyd v. Robinson made it difficult to require contribution to costs of water supply or sewerage headworks by including it as a condition of approval for a subdivision, the local authority was able to achieve the same result by means of a by-law requiring payment or contribution to the cost of water supply and sewerage services as a condition of the approval for an application to subdivide. However, despite the width of s.30 and of the expressions used in it, the by-law making power of local authorities was and is by no means uncontrolled. It is subject to the provisions of s.31, which, among other limitations, requires a by-law made by a local authority to be submitted for the approval of the Governor-in-Council. If, but only if, it is so approved, is it by s.31(27)(ix) of the Act to have "the same force in the Area as if it were enacted in this Act", and is then "not to be questioned in any proceedings whatsoever".
The point is important in the present context only because of the repeal of s.34(12)(l) that was effected by the 1983 amendments to the Act and because of a submission which was based upon it on appeal. In legislation in 1985, to which reference will be made again in due course, s.34(12)(l) seems subsequently to have been regarded as itself forming an independent source of power to make a by-law requiring contribution to the cost of water supply or sewerage works : see s.34(12H)(aa) of the Local Government Amendment Act 1985 (the Amending Act of 1985). However, the function of s.34(12)(l), in the form in which the legislation had previously been expressed, was not to authorise the making of a by-law but to enable and require the local authority, in entertaining the application to subdivide, to "consider" whether, "in accordance with a by-law" which the local authority had already made, it should grant its approval subject to a condition requiring the applicant to contribute to that cost. Legislative power to make the relevant by-law arose not from s.34(12)(l) but from s.30 of the Act, even if it may be conceded that s.34(12)(l) could be viewed as imposing an implied limitation on the breadth of the by-law making power otherwise invested by s.30. It follows that when by the Amending Act of 1983 the provisions of s.34(12)(l) were repealed and replaced by s.34(12H), that Act did not of its own force remove or alter the legislative foundation deriving from s.30 on which the relevant by-law depended.
It was nevertheless submitted that the true legislative authority for making a by-law requiring contribution to costs of headworks was s.34(12)(l), and that, when that provision was repealed or "omitted" by s.12(a) of the amending Act of 1983, any by-laws made in reliance on it were also repealed. Section 12 of the Amending Act of 1983 was not brought into force until 1 September 1985, which was the day appointed by the relevant Order in Council published in Government Gazette no. 44 on May 25, 1985 (Queensland Statutory Instruments Reprint, vol. 34, at 651). The long delay in bringing the legislation into force was intended to enable local authorities to prepare a "policy" in anticipation of the new procedure.
September 1, 1985 was also "the relevant date" for the purposes of s.6.2(6)(a) of the 1990 Act as the time for determining whether there was "in existence" a by-law requiring an applicant to contribute to the cost of water supply or sewerage headworks. The settled rule is that an enactment is presumed to be intended to take effect on and from the beginning of the day on which it is assented to. See Re Flavel [1916] S.A.L.R. 47. The underlying rationale is that the law takes no notice of fractions of a day. If it extends, as it presumably does, to a case like this where legislation was brought into force on an appointed day, then it had the consequence here of repealing or "omitting", as from the first moment of 1 September, 1985, the legislative basis for any and all local authority by-laws requiring an applicant for subdivision to contribute to the cost of water supply or sewerage headworks, or, indeed, of any other such works. Once s.30(12)(l) was omitted, so the argument ran, any by-laws made in reliance on it were also repealed or ceased to have effect.
There is more than one reason for rejecting this approach to the problem. First, it would deprive s.6.2(6)(a) of the 1990 Act of its intended effect. It expressly refers to "any by-law that was in existence at the relevant date", which was 1 September 1985. If at the beginning of that day all such by-laws were repealed, the operation of s.6.2(6)(a) would be stultified at the moment it was due to begin operating. This self-defeating result is so absurd that it is natural to suspect that an error has crept into the drafting of s.6.2(6) of the 1990 Act, and, in particular, into s.6.2(6)(b), which made 1 September 1985 "the relevant date" for the purpose of the 1990 Act.
To give s.12(a) the effect of omitting s.34(12)(l), and of destroying the legislative foundation (as it was said to be) of the relevant by-laws would also have the consequence that, in some cases at least, there would be no provision at all authorising a local authority to require contribution to the cost of water supply and sewerage works intended to serve the land being subdivided. Contrary to one submission advanced on appeal, the absence of any by-law authorising the exaction of contribution to water supply and sewerage costs would not mean that the respondent Council would have an unfettered discretion to impose, as a condition of its approval, any contribution it thought fit to make with respect to the cost of such headworks. On the contrary, it would be relegated to the state of affairs that prevailed before there was any legislation on the subject at all. It would throw the matter back to the law laid down in Lloyd v. Robinson (1962) 107 C.L.R. 142, 153, which is that a condition requiring the developer to do or pay for something outside the subject land could not be imposed if it is "so unrelated to the land because of remoteness from or some other circumstance" that there was no real connection with that land. That might mean that, on the authority of Seganfreddo v. Townsville C.C. (1967) 14 L.G.R.A. 34, 40, it might at best require contribution to the cost of reticulation of those services.
In any event, the whole argument that the repeal or omission of s.34(12)(l) by s.12(a) of the Amending Act of 1983 led simultaneously to the repeal of the relevant by- laws authorising contribution to be required as a condition of approval necessarily gives way to any contrary intention disclosed in the Amending Act of 1983 itself. As to that, it is, as previously mentioned, expressly declared in s.33(18E)(f) that a "policy" fixed by resolution of the local authority under s.33(18E)(e) is to:
"(iii) supersede any provision of a ... by-law .. made by a local authority in relation to a matter contained in the policy."
By implication, it seems plainly to follow that, in the absence of any such policy, the relevant by-law was intended to continue in existence until superseded in that way. To that extent, the provisions of s.6.2(6)(a) of the 1990 Act would be supplied with a subject matter ("any by-law that was in existence at the relevant date ...") on which to operate. The repeal or "omission" by s.12(a) of s.34(12)(l) therefore did not of its own force destroy or have the effect of repealing the relevant by-law on that topic.
In the present case, however, there does appear to have been a "policy" fixed by the respondent Council that was capable of superseding any such by-laws of the respondent. It is referred to but not reproduced in the appeal record, and it was admitted in the proceedings in the court below as ex.14(1). A perusal of the exhibit discloses that it is in the form of a certified extract from the minutes of a special budget meeting of the Council held on 30 August 1985. Under separate headings "Water Headworks Policy" and "Sewerage Headworks Policy" the following entries appear:
"WATER HEADWORKS - POLICY
MOVED by Cr. Tyrell, SECONDED by Cr. Collett, that
the Policy Statement on Water Headworks
contributions to be imposed by Council in
accordance with Sections 33(18E) and 34H of the
Local Government Act 1936-85 set out in Appendix
III attached hereto be adopted, and that such
Policy be effective as from 1st September 1985,
and further, that the level of Headworks
contributions for the time being be determined by
Council at $1,050.00 per equivalent lot inaccordance with that Policy.
CARRIED
SEWERAGE HEADWORKS - POLICY
MOVED by Cr. Gleeson, SECONDED by Cr. Stewart,
that the Policy Statement on Sewerage Headworks
contributions to be imposed by Council in
accordance with Sections 33(18E) and 34H of the
Local Government Act 1936-1985 set out in Appendix
IV attached hereto be adopted, and that such
Policy be effective as from 1st September 1985,
and further, that the level of Headworks
contribution for the time being be determined by
Council at $1,234.00 per equivalent lot inaccordance with that Policy.
CARRIED
Exhibit 14(2) comprises Appendix III (or 3) referred in the resolutions set out above. So far as can be gathered from an uninformed reading of it, the policy in exs.14(1) and 14(2) satisfied the requirement laid down by s.33(18E). It is true that it was provided in para.2 of ex.14(2) that the policy was to apply to those lands in the area of the Shire "which in the Council's opinion should be provided with a water supply ..."; and also that there are other statements in it capable of giving it a geographical operation that may not include the subject land to be subdivided in this instance. Curiously, no reference was made by either party on appeal to the existence of this policy; although it is clear from the record (in which the submissions of counsel in the court below are transcribed) that Mr Hanger Q.C., who was then appearing for the respondent Council, placed some reliance on it as being a policy which had on 1 September 1985 superseded any relevant by-laws of the respondent: see appeal record, at pp.36, 42 and 43.
One is naturally diffident about adopting an approach that has not been pursued by counsel on appeal. Before this Court, counsel for both parties proceeded on the footing that the relevant policy of the respondent had not been adopted or "fixed" by resolution of the Council until some time in October 1985 (ex.12), which was, of course, after the relevant date 1 September 1985 from which s.6.2(6)(a) of the 1990 Act operated on a by-law if it was then "in existence". It therefore remains necessary to consider the matter substantially in the way in which it was presented to this Court on the appeal.
In the absence of a "policy" within the meaning of s.33(18E)(a), it follows from what has already been said that any relevant by-law of the respondent was not superseded in terms of s.33(18E)(iii) but continued in existence at the commencement of s.12 of the Amending Act of 1983 on 1 September 1985 at least until October 1985 when a policy was "fixed" by the Council. As such, its operation was preserved by s.6.2(6)(a) of the 1990 Act. Furthermore, if any doubt arises from the elimination of s.34(18)(l) at the first moment when the Amending Act of 1983 commenced to operate on the relevant date, the same conclusion is also sustainable by s.34(12H)(aa) of the Amending Act of 1985. Paragraph (aa) of that subsection provides, so far as relevant, as follows:
"... the Local Authority shall not ... impose ... any condition requiring the applicant to pay the cost of a contribution towards the cost of sewerage headworks, water supply headworks ... save where, immediately prior to the commencement of section 12 of the Local Government Act Amendment Act 1983-1985, there was in existence a by-law made by the Local Authority pursuant to section 34(12)(l) of the Local Government Act 1936-1982 (whether or not that by-law has since been repealed) requiring an applicant for approval ... to subdivide land to contribute towards the cost of the provision of water supply or sewerage or water supply and sewerage to the land to be subdivided.
Provided that such a condition shall not require the applicant to make a contribution greater than the amount of the contribution that would have been payable under that by-law."
See 1985 Annual Statutes, at 807-808.
The relevant Part of the Amending Act of 1985 came into force on 24 April 1985, which was in the interim before s.12 of the Amending Act of 1983 came into force on 1 September 1985. In substance it functioned as a prospective amendment of the earlier Act taking effect when that Act came into force. Its application is made to depend on fulfilment of a series of requirements all of which are admittedly satisfied in the case of the appellant's application to subdivide in the present instance. It operates primarily as a prohibition against the imposition of a condition requiring contribution to the cost of headworks except where an appropriate by-law was in existence at the relevant time. The effect of the exception is to pick up such a by-law if it was in existence on 31 August 1985 or at any time before it ("... save where immediately prior to the commencement of section 12 ... there was in existence a by-law made by the local authority ..."). It concludes with a proviso limiting the amount of that contribution to the amount that would have been payable under the by-law.
At 31 August 1985, as well as before that date, there was in existence an appropriate by-law made by the respondent Council. It had been approved by Order in Council and published in the Gazette on 11 April 1974. It took effect as cl.9(3)(ix) of Chapter 29 of the respondent's by-laws. So far as material, it was in the following form:
"In the case of an application for the subdivision of land ... the Council may require the applicant for approval of such an application:
(a)
in respect of the cost of providing the part of the water supply service or sewerage service, other than the reticulation of the subject land to pay to the Council a sum which bears to the total cost as at the date of the lodgment of the formal plan by the applicant with the clerk, of providing such service for the whole of the area in question (other than the cost incurred in its reticulation) the same proportion as (in the area respectively) the subject land (excluding the area thereof required by the Council therein for public garden or recreation space) bears to the whole of the area in question; and
(b)
to provide, or pay the cost of providing reticulation of the service concerned to the subject land."
Having been approved by the Governor-in-Council and published in the Gazette, cl.9(3)(ix) was, in terms of s.31(27) of the Act, to be considered "as if enacted in this Act", and as such not open to being questioned in any proceedings whatsoever. That has the consequence that, in this and in any other court, it is to be taken to be a valid by-law. Its proper interpretation is, however, another matter.
Putting to one side the cost of providing reticulation of the relevant service to the subject land (which is the topic provided for in sub-cl.(b) of the by-law), what cl.9(3)(ix)(a) of the by-law set out to do was to authorise the respondent Council to require an applicant for subdivision to pay to the Council a sum "in respect of the cost of providing the part of the water supply service or sewerage service ...". The part in question is identified by reference to the sum to be paid. That sum is to be an amount "which bears to the total cost of providing such service for the whole of the area in question ... the same proportion as (in the area respectively) the subject land, .. bears to the whole of the area in question". The subclause is not elegantly drafted but its meaning is clear enough. The area of the subject land (i.e. the land to be subdivided) is to be compared with the whole of the area serviced. In that way a proportion is to be arrived at between the two of them. The resulting fraction is then to be applied to the total cost of providing the relevant service for the whole area, so as to yield the proportionate cost of providing the relevant service to the subject area, which is the land to be subdivided.
The parties here have made calculations based on that by-law leading to alternative results according to whether contributions to the cost of providing headworks for the services in issue are or are not included. The question to be determined on the appeal is which of those alternatives is correct, which in turn depends on whether the costs of providing headworks are rightly included. In my opinion they are not. Clause 9(3)(ix)(a) of the by-law is admittedly expressed in wide terms. It speaks generally of "the cost of providing ... the water supply service or sewerage service ...". On its face it is capable of including the cost of providing headworks for water supply or sewerage services. However, when confronted with a somewhat similar but even more detailed by-law, in Sabdoran v. Hervey Bay T.C. [1983] 2 Qd.R. 172, the Full Court held that it was to be considered in the context of s.34(12)(l) of the Act, which was then the operative provision and which (apart from reticulation) referred only to requiring a contribution to the cost of construction or augmentation of mains or pumping stations.
The reasoning of the Full Court appears at some points to approach s.34(12)(l) as affording no more than an interpretative guide to the meaning of the relevant by-law; elsewhere in the reasons, it is viewed as if it imposed a direct limitation on the power of the local authority to make a by-law providing for the imposition of the relevant contribution as a condition of the approval. The effect of the decision itself was to acknowledge the existence of some restriction on the part of the local authority in that case to exact the full measure of the contribution it was claiming under its by-law. The reasons in Sabdoran v. Hervey Bay T.C. seem clearly to envisage that it would not be beyond power for the local authority in some circumstances to require payment of the cost of works to be carried out in the future as well as the cost incurred of works already carried out. Section 34(12)(l)(ii) itself referred to "contribution towards the cost (whether incurred before or after making the application) ...". At the same time, however, the Court in that instance held that the cost of constructing water supply headworks in the form of a reservoir was excluded ([1983] 2 Qd.R. 172, 180E), as was the capital cost of providing other works external to the subject land in order to cater for future stages of the development that were planned to take place, if at all, only many years thereafter (ibid, at 180-181). Some costs of future sewerage work were also held to be excluded, not because they represented a future cost, but because it was not possible at that time to identify the mains, the pumping stations and the augmenting works that would need to be incorporated in the scheme, which had then not even reached planning stage ([1983] 2 Qd.R. 172, 181 D-G).
It was nevertheless submitted by the respondent council on appeal that, at or before 1 September 1985, the range of matters for the cost of which a local authority had power to require payment or contribution from a developer at approval stage had been enlarged by s.33(18E) of the Act. That provision, which was part of s.11(e) of the amending legislation of 1983, also came into force on 1 September 1985 and it authorised the inclusion of a requirement for contribution toward water supply and sewerage headworks as a condition of the approval. However, neither it nor s.34(12H) purported to have any impact on the ambit of the by-law itself, and it is the by-law, in this instance cl.9(3)(ix)(a), on which s.6.2(6)(a) of the 1990 Act directly operates. What s.6.2(6)(a) says is that the amount of contribution toward headworks that may, pursuant to that section, be required as a condition of the approval is not to exceed the cost of the works "which the Local Authority could lawfully impose by way of any by-law that was in existence at 1 September 1985, and which required or may have required the applicant to contribute towards the cost of those works". The use of the expression "could lawfully impose" may perhaps be thought to lend some force to the impression that the decision in Sabdoran v. Hervey Bay T.C. viewed s.34(12)(l) as imposing a restriction on the power of a local authority under s.30 of the Act to make a by-law capable of imposing an obligation to contribute to the cost of works not specified in that provision.
On 1 September 1985 cl.9(3)(ix)(a) of the respondent's by-laws was in existence. However, approached in the manner required by the decision in Sabdoran v. Harvey Bay T.C., that by-law did not oblige the applicant to contribute toward the cost of providing water supply and sewerage headworks. Far from enlarging the ambit of that by-law to enable contribution to be required to the cost of those works, both the proviso to s.34(12H)(aa) of the Amending Act of 1985 and s.6.2(6)(a) of the 1990 Act appear clearly enough to have set out to preserve the limitation to which the by-law was originally subject after the decision in Sabdoran. The legislative process which took place was quite unlike that considered in Birch v. Allen (1941) 65 C.L.R. 621 or Kostrzewa v. Southern Electric Authority of Queensland (1969) 120 C.L.R. 653, which involved the substitution of new definitions in the Act under which the relevant subordinate legislation operated. The legislative intention here was to preserve the by-laws in the form in which they had operated before 1 September 1985, when the Amending Act of 1985 came into force.
One inevitably tends to look for a reason why the legislature should have been intent on maintaining for two decades or more what is essentially the 1971 legislative regime discarded in 1985. The justification is, I think, ultimately to be found in the other terms of s.6.2(6)(a) of the 1990 Act and the other Amending Acts. The provision in s.6.2(6)(a) operates only where the land sought to be subdivided was: (1) at 1 September 1985 under a planning scheme permitting its use for a purpose envisaged by the application; and (2) water supply headworks or sewerage headworks are already available to service that land. Both requirements are admittedly fulfilled in the case of the subject land in the present case. No doubt that means that the costs of headworks have already been met in the past. That being so, the policy and effect of s.6.2(6) are to limit the amount of contribution capable of being extracted from the applicant developer to the sum that would have been exigible under the by-law, properly construed, as it stood at 1 September 1985.
That conclusion is confirmed by the terms of s.34(12H)(aa) inserted by the Amending Act of 1985. The operation of that provision is confined to the case of an application, made after 1 September 1985, for approval to subdivide land, which at that date was included in a town planning zone permitting its use for a purpose envisaged by the application to subdivide, or for which consent for the use of that land had already been granted; and also where water supply or sewerage headworks, as defined in s.33(18E) are already available to service that land. In the course of the second reading in Parliament of the Bill which became the Amending Act of 1985, the Minister (Hon. C.A. Wharton) had this to say about the provision that now stands as s.34(12H)(aa):
"Some of these amendments are only minor in nature, and are necessary to clarify the intention of the 1983 provisions.
The major amendment concerns circumstances where land is zoned for an as-of-right use at the time of the coming into force of the legislation and an application is subsequently made for approval to subdivide the land.
In such a case, the Bill provides that the headworks contributions obtained by the local authority will be confined to the construction of trunk mains and pumping stations or the augmentation thereof.
The effect of that provision will be that, in the circumstances referred to, the power of a local authority to obtain headworks contributions will be similar to that exercisable under existing law.
It is felt that that is a reasonable provision, having regard to the fact that the developer has paid a higher price for his land where it is so zoned to enable him to carry out his development as of right."
What was said by the Hon. The Minister on that occasion serves as a further indication or explanation of the purpose and function of s.34(12H)(aa), which it was plainly the object of s.6.2(6)(a) of the 1990 Act to continue preserving.
It follows that the respondent Council was not entitled to include in the amount which the appellant was required to pay, as a condition of obtaining approval for the subdivision, the sum which the parties here have agreed are referable only to the cost of providing water supply and sewerage headworks.
I consider that the appeal should be allowed with costs, and that the conditions of approval referred to in the reasons for judgment of Fitzgerald P. should be substituted for those fixed by the Council.
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