Wort v Whitsunday Shire Council
[2000] QPEC 68
•2 November 2000
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: Wort v. Whitsunday Shire Council [2000] QPE 068 PARTIES: JAMES PIERCE WORT Appellant
And
WHITSUNDAY SHIRE COUNCIL RespondentFILE NO/S: Appeal No. 4809 of 1999 DIVISION: Planning and Environment PROCEEDING: ORIGINATING COURT: DELIVERED ON: 2nd. November 2000 DELIVERED AT: Brisbane HEARING DATE: JUDGE: Judge Quirk ORDER: CATCHWORDS: COUNSEL: SOLICITORS:
This appeal is against the imposition of two conditions upon an approval of multiple unit development on land at Cannonvale. The conditions in question (Conditions 2.4 (c) and (d)) called for the payment of contribution to water supply and sewerage headworks "in accordance with council's local planning policies".
To understand the dispute that has arisen, it is necessary to go into the history of the matter. The appellant, Mr Wort, came to Airlie Beach in 1985. Since then he has been active in business in the area. Land development has been one of his investment interests and in the late 1980's he completed a small 8 unit development on land adjoining the subject site.
At that time the land was owned by a Mr Newton who was a consulting engineer to the council. He had acquired the land from another party (Nanders Pty Ltd) in 1988. Mr Newton (who gave evidence) told me that, at the time, the land was included in the Residential B zone. His contract with Nanders was conditional upon the latter's completing a subdivision of a larger parcel into lots one of which (Lot 1 on RP 747787) was the subject land.
Although the relevant contract is no longer available, Mr Newton believes that it was also conditional upon there being no further requirement by the council for water and sewerage headworks contributions payable in relation to the land unless it was to be developed at greater density than permitted in the Residential B zone on 25 January 1985.
Prior to settling his contract with Nanders Mr Newton entered into a contract for a sale of the subject land to the appellant. Only part of that contract is now available. However, both the appellant and Mr Newton informed the court that one of the conditions of their contract was that the vendor provided prior to the date for completion;
"a written acknowledgment from the Proserpine Shire Council that no further water and sewerage headworks contributions are payable other than such contributions which have already been paid in the proposed re-subdivision pursuant to the provisions of the Building Units and Group Titles 1980-1988 of the within described land by the purchaser for the purpose of the erection of home units on any part of the within described land."
This reflected assurances given by Mr Newton to the appellant and were in line with the former's understanding of the position from his various dealings with the council.
At the time of the subdivision which produced Lot 1 a report to the council was made (at some time in 1988) by its consultant planner Mr Carey (page 79 Exhibit 1) which contained the following statement:-
"Water and sewerage are available, Sewerage and water headworks have been paid. An additional payment may be received at the consent stage if the development density is above those payments made previously in accordance with council's headworks policy."
No reliable evidence was available to indicate the amount of sewerage and water headworks that had been paid, but in any event no payment of further headworks was called for as a condition of subdivisional approval.
In conformity with his agreement with the appellant, and to obtain the "written acknowledgment" from the council that their agreement contemplated, Mr Newton wrote to the council as follows:-
"Further to our recent conversation regarding Lot 1 of Lot 15 RP741848 off Border Drive in Cannonvale I seek council's confirmation that no headworks would be required to be paid should units be built on this allotment or should it be subdivided."
The Shire Clerk in a letter dated 28 October 1988 replied:-
"I refer to your letter dated 25th October, 1988, concerning the above-mentioned.
In relation to headworks contributions, the following passage from Council's Headworks Policy on a consent application is relevant.
"in respect of zonings approved and gazetted under Council's policies and by-laws applying prior to 14th December, 1981, a contribution of equivalent tenements equal to the equivalent tenements able to be erected on the land in accordance with the policies and by-laws applicable on 25 January, 1985 shall be deemed to have been previously paid unless a specific development application for more intense development has been approved by Council and is still current under current policies and by-laws."
The area of land mentioned above was gazetted as Residential "B" on the 23rd July, 1981 and therefore under the consideration of the above passage.
The contributions of Water and Sewerage Headworks are deemed to have been paid to the amount equal to the equivalent tenements able to be accommodated on the land pursuant to Council's previous Town Planning Scheme."
For the purposes of this appeal it is conceded that, at that time, "the equivalent tenements able to be erected on the land in accordance with the policies and by-laws applicable on 25 January 1985" were 76.5 and exceeded the equivalent tenements of the proposal now under consideration.
While anyone in the position of the appellant might have been satisfied with the contents of the letter, it is equally fair to say that the letter is open to the construction that the writer was, in effect, referring the reader to the relevant passage of the then current policy on the matter stating that the land was included in the Residential B zone and applying the words in the quoted relevant passage to the situation of the land. At first glance the phrase "deemed to have been paid" is open to a fairly consequential interpretation but, in fairness to the writer, he was doing no more than repeating the specific words of the policy.
The policy in force at the time of that letter was adopted in November 1985. Amendments to this policy were made in November 1995 and these are reflected in the current policy. The effects of these policy amendments was to reduce the "credit" available to the subject land to two equivalent tenements. This reflected the provisions of the town planning scheme gazetted on 26 January 1985 which allowed, as a permitted use, "Multiple Dwelling Class A" which term was defined to mean a multiple dwelling comprising two dwelling units. Multiple dwellings classes B and C were discretionary uses in the Residential B zone.
The end result is that the appellant, instead of having an approval free of any requirement for water supply and sewerage headworks contribution faces a very considerable impost in that respect. At the time of approval an estimate in the order of $273,000 was mentioned.
I have considerable sympathy with the appellant in that I am satisfied that he did decide to purchase the land relying on the assurances which he believed the Shire Clerk letter to be giving. However, it has to be accepted that the letter of the Shire Clerk did accurately reflect the planning controls in place at that time and contained no assurance that they were in effect "set in stone" and could not be changed.
The appellant's counsel was prepared to argue that because of its letter of 28 October 1998 the council was estopped from denying that headworks are "deemed to have been paid" to an amount corresponding to 76.5 equivalent tenements.
The difficulty in relying upon the doctrine of estoppel where a public body must exercise a statutory authority was however conceded. As Mason CJ (citing a considerable body of authority) observed in Attorney-General (NSW) v. Quinn 1989-1990 170 CLR 1 at 17:-
"The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercise in the public interest, binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power".
There is the added difficulty that arises from the nature of these proceedings which is not an adjudication in respect of competing asserted rights (or a review in the strict sense of the council's decision on the matter) but a re-hearing on the merits in which the appellant bears the onus of establishing that a particular development should be approved in the way that the appellant contends (section 4.1.50 and s.4.1.52 of the Integrated Planning Act).
The matter of the imposition of the disputed conditions is one upon which the court must make a decision on the material put before it. Whether the condition should be imposed is a matter in respect of which the court has the discretion which applies generally to the imposition of conditions (section 4.1.54, s.3.5.11).
At the time that the relevant letter was written s.33 (18E) of the Local Government Act 1936-1984 governed the matter. Sub-clause (e) of that sub-section provided:-
"the amount of any contribution required to be paid to a local authority under this sub-section or under section 34 (12H) shall be determined in accordance with the policy fixed from time to time by the local authority by resolution".
The words "fixed from time to time" indicate that it was open to the council to amend the policy as circumstances required. As stated, the reply given by the Shire Clerk on 28 October 1988 reflected correctly the position that then applied. It is true that it did not contain any words of qualification such as "while the current policy remains in force" which could be read as a warning that the position might alter but I am not satisfied that it was required that this should be done. It was a matter provided for by law.
I am not satisfied that the letter has the effect of making it unreasonable or oppressive to decide this application in line with the relevant policy in force at the time that the application was made. The application was made on 22 December 1997 and the matter was then governed by s.6.2(3) and (6) (b) of the Local Government (Planning and Environment) Act. The policy referred to in s.6.2 (6)(b) was the 1997 policy. The council was not compelled to require the headworks contributions as it has. It had a discretion to do so as does the court.
It is however, in my view, a matter of public interest that with the development of land there should be a just and equitable contribution to the infrastructure that such development necessitates. For these reasons I have concluded that the proper exercise of the discretion in this appeal would support the imposition of the disputed conditions. I do not believe that the letter written nearly 12 years ago and understood as it should be, is any justification for treating this application differently to others which might have been made at the same time. For these reasons I find that the onus of showing that the application should be approved free of the disputed conditions has not been discharged and the appeal must be dismissed.
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