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Ashtrail Pty Ltd & Anor v Council of the City of Gold Coast

 

[2020] QCA 82

SUPREME COURT OF QUEENSLAND

CITATION:

Ashtrail Pty Ltd & Anor v Council of the City of Gold Coast [2020] QCA 82

PARTIES:

ASHTRAIL PTY LTD

ACN 057 404 074

(first applicant)

TALRANCH PTY LTD

ACN 077 382 453

(second applicant)

v

COUNCIL OF THE CITY OF GOLD COAST

(respondent)

FILE NOS:

Appeal No 5090 of 2019

P & E No 87 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane – [2019] QPEC 12 (Jones DCJ)

DELIVERED ON:

24 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2020

JUDGES:

Morrison and Mullins JJA and Callaghan J

ORDERS:

  1. Grant leave to appeal in respect of grounds 1-5.
  2. Leave to appeal otherwise is refused, with costs.
  3. The appeal is dismissed with costs.

CATCHWORDS:

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITHIN ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – RIGHT AND AVAILABILITY OF APPEAL – where the applicants seek leave to appeal from a decision of the Planning and Environment Court – where the proceedings below were brought by the respondent seeking relief in respect of a development approval granted to the applicants in 2010 – where the decision below declared that: the 2010 Approval had not lapsed; conditions 5, 6, 10, 12 and 16 of the 2010 Approval had not been complied with; and, the non-compliance constituted a development offence under s 164 of the Planning Act 2016 (Qld) – where orders were made that the applicants comply with the five conditions prior to the commencement of the use permitted by the 2010 Approval – where none of the five conditions has been complied with – where the respondent did not oppose the grant of leave to appeal in respect of the first five grounds but opposed the sixth on the basis that it involved contended errors of fact rather than law – whether leave to appeal should be granted

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where s 340(1)(a) of the SPA provided that development under the 2010 Approval could start immediately upon it being granted – where s 341 of the SPA provided when an approval lapsed – where the applicants contend that on the proper construction of condition 5, payment was an essential precondition which had to be fulfilled “prior to … the commencement of the use”, and since they had not been satisfied, there was no “first change of use” within the four year period following the 2010 Approval – whether the learned trial judge erred by finding that the 2010 Approval had not lapsed under s 341(1) of the SPA when the five conditions had not been complied with

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where the applicants contend that there were significant departures from the approved plans and drawings contained in the 2010 Approval which had the effect that it lapsed “because the particular use under the 2010 Approval did not occur prior to that date” – where the learned trial judge observed that it could be accepted that evidence reflected departures from the approved form of the development that were not minor – where the learned trial judge held that the departures were in no way determinative of the question whether the use to which the land was being put was the use contended for by the respondent – whether the learned trial judge erred by finding that the 2010 Approval had not lapsed under s 341(1) of the SPA, when condition 1 required the development to be carried out generally in accordance with the approved plans and drawings, and the approved plans and drawings had not been complied with

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where the applicants contended that the respondent’s proceedings were out of time because they had been started more than six years from the date on which the cause of action arose – where the learned trial judge accepted that the cause of action was complete on the date the 2010 Approval came into effect – where the learned trial judge concluded that the proceedings were for enforcement proceedings concerning alleged non-compliance with conditions of an approval – whether the learned trial judge erred by finding that s 10(1)(d) of the Limitation of Actions Act 1974 (Qld) does not apply to an application seeking an enforcement order pursuant to s 180 of the Planning Act, where the order sought by the Council required the applicants to pay sums of money to it

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INTERESTS – QUEENSLAND – where the learned trial judge concluded that matters identified concerning the loss of documents would not have led to a different conclusion as to the fact that the delay had not caused any material prejudice – where the applicants were on notice that the respondent contended that the conditions had not been met and could be enforced – whether the learned trial judge erred by finding that s 38(4) of the Acts Interpretation Act 1954 (Qld) does not apply to an application seeking enforcement orders pursuant to s 180 of the Planning Act

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INTERESTS – QUEENSLAND – where the applicants’ contentions commenced with observing that the term “driving instructing” was not defined in the two relevant planning schemes in operation at the commencement of use on Lot 36, and at the time of the 2010 Approval – where factual statements drawn from promotional material issued by the applicants were likely to be accurate in the description of the existing use – where the learned trial judge also referred to documents published by the applicants subsequent to the 2010 Approval – where his Honour rejected the qualifications placed upon the documentary evidence by the two principals – whether the learned trial judge erred by construing the term “driving instructing” to include instruction in the operation of plant and equipment or, alternatively, failing to give adequate reasons for so construing the term “driving instructing”

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INTERESTS – QUEENSLAND – whether the learned trial judge erred by finding that there had been a material change of use for “driving instruction” or “motor vehicle workshop/ERA” on Lot 36, in the absence of evidence to justify that finding or, alternatively, by drawing inferences not properly available on the evidence; and misapplying the onus of proof in that regard

Acts Interpretation Act 1954 (Qld), s 38(4)

Integrated Planning Act 1997 (Qld), s 3.5.21A

Limitation of Actions Act 1974 (Qld), s 5, s 10

Planning Act 2016 (Qld), s 63, s 164, s 176, s 180

Sustainable Planning Act 2009 (Qld), s 339, s 340, s 341

Amos v Brisbane City Council (2018) 230 LGERA 51; [2018] QCA 11, distinguished

Caloundra City Council v Taper Pty Ltd [2003] QPELR 558; [2003] QPEC 19, distinguished

Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243; [1999] NSWCA 317, distinguished

Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132, distinguished

McDonald v Douglas Shire Council [2004] 1 Qd R 131; [2003] QCA 203, distinguished

Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd (1995) 88 LGERA 157; [1995] QCA 300, distinguished

COUNSEL:

R Litster QC, with K Wylie, for the applicants

R G Bain, with D D Purcell, for the respondent

SOLICITORS:

Synkronos Legal for the applicants

McInnes Wilson Lawyers for the respondent

  1. [1]
    MORRISON JA:  The applicants seek leave to appeal from a decision of the Planning and Environment Court, delivered on 29 March 2019.[1]  The proceedings were brought by the Gold Coast Council seeking relief in respect of a development approval granted to the applicants in 2010.[2]  The 2010 Approval was for a material change of use in relation to land owned by Talranch Pty Ltd and used by Ashtrail Pty Ltd to conduct a business generally concerned with driver training (including for trucks, plant and equipment), heavy vehicle licenses, truck qualifications, vehicle maintenance, and equipment hire.
  2. [2]
    The decision below declared that: the 2010 Approval had not lapsed; conditions 5, 6, 10, 12 and 16 of the 2010 Approval had not been complied with; and, the non-compliance constituted a development offence under s 164 of the Planning Act 2016 (Qld).  Orders were made that the applicants comply with the five conditions.
  3. [3]
    Section 63 of the Planning and Environment Court Act 2016 (Qld) permits an appeal from that Court but relevantly only with the leave of this Court, and only on the grounds of error or mistake in law.

Background

  1. [4]
    What follows is a general synopsis of the background, drawn from the Reasons below and the information in the development application lodged in 2008.
  2. [5]
    In 1997 Talranch Pty Ltd acquired land (Lot 36) at Ormeau.  Ashtrail Pty Ltd, a registered training organisation since 1999, has been conducting various business uses on and from Lot 36.
  3. [6]
    Use of the land since about 1998 has been carried out by Ashtrail Pty Ltd under the operating names of “Major Operator and Driver Training Services” and “Major Training Group”.
  4. [7]
    On 26 February 2007 the Council issued a show cause notice requiring the applicants to show cause why an enforcement notice should not be issued.  The notice contended that the land was being used for the purpose of “Service Industry – Group B (Driving, Instructing & Commercial Equipment Hire)”, that was a code assessable development, and no development application had been submitted in respect of it.  The notice required the applicants to remedy the situation by either ceasing the alleged unlawful use of the land, or alternatively by making a development application.
  5. [8]
    On 28 March 2007 a town planning firm, Gassman Development Perspectives, was engaged to address issues raised in the show cause notice.  On 4 October 2007 Gassman lodged a development application.  For reasons which do not presently matter, that application lapsed in February 2008.
  6. [9]
    On 29 October 2008, Major Operator and Driver Training Services lodged another development application seeking development permits for a material change of use.  The change of use that was sought was to:
    1. (a)
      Service Industry Type B (Driver Instructing);
    2. (b)
      Motor Vehicle Repair Station; and
    3. (c)
      Environmentally Relevant Activity (ERA 28 Motor Vehicle Workshop).
  7. [10]
    That application described the then current use of the land as being “Driver Training – Plant Machinery”.  The proposed use was described by Gassman as “Driver Training Workshop and Training Area.  Vehicle Repairs for Vehicles Used on Site”.
  8. [11]
    While the 2008 application was made under the Integrated Planning Act 1997 (Qld), the approval took effect as a development approval under the Sustainable Planning Act 2009 (Qld).[3]
  9. [12]
    Under s 10(1) of the SPA, a material change of use was defined to mean, relevantly, “a material increase in the intensity or scale of the use or premises”.
  10. [13]
    On 17 November 2009 the Council gave a Decision Notice approving the application, but subject to various conditions.  After receiving written representations, on 15 February 2010 the Council issued a development approval in the form of a Negotiated Decision Notice.  This was the 2010 Approval.  The 2010 Approval, which was subject to conditions, including those in issue before this Court, granted permission for a material change of use of the land for Service Industry Type B (Driver Instructing and Commercial Equipment Hire), Motor Vehicle Repairs, and Environmentally Relevant Activity (ERA #28 Motor Vehicle Workshop).
  11. [14]
    The five conditions in issue in these proceedings were required to be complied with prior to the commencement of the use permitted by the 2010 Approval.  Condition 5 required payment of contributions toward water supply network infrastructure ($380,639.64), while condition 6 required payment of contributions toward sewerage network infrastructure ($547,607.98).  Conditions 10 and 12 required the design and construction of roadworks and a footpath/bikeway.  Condition 16 required a land dedication for road widening.
  12. [15]
    No appeals were commenced with respect to the 2010 Approval or any of its conditions.  None of the five conditions has been complied with.

Proposed grounds of appeal

  1. [16]
    The applicants’ grounds of appeal, should leave be granted, are summarised in the applicants’ outline.  It was contended that the learned trial judge erred by:
    1. (1)
      finding that the 2010 Approval had not lapsed under s 341(1) of the SPA when the five conditions had not been complied with;
    2. (2)
      finding that the 2010 Approval had not lapsed under s 341(1) of the SPA, when condition 1 required the development to be carried out generally in accordance with the approved plans and drawings, and the approved plans and drawings had not been complied with;
    3. (3)
      finding that s 10(1)(d) of the Limitation of Actions Act 1974 (Qld) does not apply to an application seeking an enforcement order pursuant to s 180 of the Planning Act, where the order sought by the Council required the applicants to pay sums of money to it;
    4. (4)
      finding that s 38(4) of the Acts Interpretation Act 1954 (Qld) does not apply to an application seeking enforcement orders pursuant to s 180 of the Planning Act;
    5. (5)
      construing the term “driving instructing” to include instruction in the operation of plant and equipment or, alternatively, failing to give adequate reasons for so construing the term “driving instructing”; and
    6. (6)
      finding that there had been a material change of use for “driving instruction” or “motor vehicle workshop/ERA” on Lot 36, in the absence of evidence to justify that finding or, alternatively, by drawing inferences not properly available on the evidence; and misapplying the onus of proof in that regard.
  2. [17]
    The Council did not oppose the grant of leave to appeal in respect of the first five grounds but opposed the sixth on the basis that it involved contended errors of fact rather than law.

Ground 1 – lapse of the approval; construction of the conditions

  1. [18]
    In the 2010 Approval conditions 5 and 6 related to infrastructure contributions to the water supply network (condition 5) and the sewerage network (condition 6).  Condition 5 provided:

5 Water Supply Network infrastructure contributions

The applicant must pay to Council contributions toward Water Supply Network Infrastructure in accordance with Planning Scheme Policy 3A - Policy for Infrastructure (Water Supply Network Developer Contributions) at the rate current at the due date for payment.  Payment must be made prior to the earliest of the following events: the endorsement of survey plans, the issue of a certificate of classification for building work, the carrying out of the final plumbing inspection, or the commencement of the use of the premises.

The contribution current at the date of this approval is: … [$380,639.64].

The contribution amount payable at the due date for payment will be calculated at the rates current under the Policy … in force at the date of payment.”

  1. [19]
    Condition 6 was in relevantly identical terms, though referring to contributions for the sewerage network infrastructure under a different policy, and in a different amount.
  2. [20]
    The 2010 Approval took effect on 15 February 2010: s 339(1)(a)(ii) of the SPA.
  3. [21]
    Section 340(1)(a) of the SPA provided that development under the 2010 Approval could start immediately upon it being granted:

340 When development may start

  1. (1)
    Development may start—
  1. (a)
    when a development permit for the development takes effect; …”
  1. [22]
    Section 341 of the SPA provided when an approval lapsed, in these terms:

341 When approval lapses if development not started

  1. (1)
    To the extent a development approval is for a material change of use of premises, the approval lapses if the first change of use under the approval does not start within the following period (the relevant period)—
  1. (a)
    4 years starting the day the approval takes effect; …”
  1. [23]
    The applicants contended that the 2010 Approval had lapsed under s 341 of the SPA because payment of the infrastructure charges had not been made in compliance with either conditions 5 or 6.[4]  The contention was (below and before this Court) that on the proper construction of condition 5, payment was an essential precondition which had to be fulfilled “prior to … the commencement of the use”, and since they had not been satisfied, there was no “first change of use” within the four year period following the 2010 Approval.
  2. [24]
    The contentions depend upon the proper construction of condition 5, and a consideration of the authority relied upon by the applicants, principally Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd.[5]
  3. [25]
    The construction of the conditions is an exercise to discover the objectively determined meaning, considering the text in context, including the statutory context, but beginning and ending with the text.[6]
  4. [26]
    On its face, condition 5 contains three distinct aspects.  The first, contained in the first sentence, is an obligation to pay infrastructure contributions.  That sentence also specifies a way of identifying the amount of contributions, namely at the rate current at the due date for payment, applying Policy 3A.  However, the first sentence does not identify the “due date for payment”.  That is dealt with in the next sentence.
  5. [27]
    The second sentence does not impose a separate obligation to pay contributions.  That was done in the first sentence.  Rather, the second sentence specifies when the contributions payment must be made.  Thus, payment must be made “prior to the earliest of the following events”, the earliest relevant event being “the commencement of the use of the premises”.
  6. [28]
    The third aspect of condition 5 is its specification of how the amount of the contributions will be calculated.  That appears in the fourth sentence, which specifies that the amount “will be calculated at the rates current under the Policy … in force at the date of payment”.

Textual considerations

  1. [29]
    Looking at the text of condition 5, the reference to “the commencement of the use of the premises” must be a reference to the material change of use the subject of the 2010 Approval.  That is identified in Paragraph B of the Approval,[7] as “material change of use for Service Industry B, Motor Vehicle Repair and ERA28, subject to the following conditions”.[8]  It is the material change of use to which the conditions apply and therefore the reference to “the use” in condition 5 (and the others in issue) must refer to the material change of use.
  2. [30]
    However, some closer analysis of the material change of use is required to determine how condition 5 operates, and in particular when the infrastructure contributions become payable.
  3. [31]
    There were three uses which were the subject of the approved material change of use: first, Service Industry Type B (Driver Instructing); second, Motor Vehicle Repair Station; and third, Environmentally Relevant Activity (ERA 28 Motor Vehicle Workshop).  The first and second uses were pre-existing lawful uses on the land as at 15 February 2010.  The 2010 Approval regularised those uses by granting approval to their continuation and increase in intensity and scale over time.  However, the third, ERA 28 Motor Vehicle Workshop, was not a pre-existing lawful use.
  4. [32]
    The learned trial judge made factual findings, based in part on an adverse assessment of the credit of Alex and Matthew Tenkate, that the applicants were unlawfully using the land for the purposes of a motor vehicle workshop, and it was therefore necessary to obtain a development permit for a material change of use - ERA 28.[9]  Further, his Honour found that there was a material change of use in respect of the activities that fell within the ERA.[10]
  5. [33]
    Whilst it was the case, as will appear, that the development relating to the material change of use had aspects which progressed and altered over time, that was not the case with the material change of use for the ERA 28.  It was unlawful as at 15 February 2010 and was made lawful by the 2010 Approval.  In that respect the “commencement of the use of the premises” referred to in conditions 5 and 6 occurred immediately upon the 2010 Approval taking effect.  Thus the infrastructure contributions were payable as at 15 February 2010.

Contextual considerations

  1. [34]
    The text of condition 5 must be construed in context.  The application made to the Council was for a material change of use.  The material change of use identified three separate proposed uses, namely Service Industry Type B (Driver Instructing and Commercial Equipment Hire), Motor Vehicle Repairs, and Environmentally Relevant Activity (ERA 28 Motor Vehicle Workshop).  The 2010 Approval given was an approval for “material change of use” for the three proposed uses.
  2. [35]
    That context makes it plain that in terms of when the contribution had to be paid, it was not just upon any use of the premises, but upon the commencement of the material change of use.
  3. [36]
    In that respect the context of the 2010 Approval is drawn also from the application which was lodged by Gassman.  The report which accompanied the development application[11] identified a material change of use in respect of each of the three proposed uses.[12]  The report explained that the site was “currently utilised … for the purpose of driver training for plant operations, heavy vehicle licenses and truck qualifications”.[13]  The report identified the proposed material change of use in section 4.1.  It was that the applicants proposed “the construction of a Driver Training development for the use of operating plant equipment and heavy machinery”.[14]  The development in its entirety was proposed over three stages, and Table 2 of the report provided a breakdown for each stage.  Relevantly it identified:
    1. (a)
      Stage 1 comprised “two areas being developed at varying rates and will ultimately upon the completion of all three stages be employed for a variety of uses”; Area A was then identified as containing the present uses, namely two training areas, a machine storage area, a machinery workshop area, a demountable building and an auxiliary administration and office building; it also identified Area B as having been cleared “in preparation of construction for industrial buildings”; Stage 1 had a development period identified as being two years;[15]
    2. (b)
      Stage 2 was said to illustrate “a decrease of the use area due to the relocation of the machinery workshop, garage and admin buildings to the constructed industrial building in Area B”; Stage 2 included the construction of three additional industrial buildings in Area B with a connecting access road; Stage 2 was proposed only to initiate upon the completion of Stage 1 and required that the approval last for four years;[16]
    3. (c)
      Stage 3 was said to demonstrate “efficient use of the entire site with three (3) additional proposed buildings occupying the previous Training Areas”; the training areas were said to “have been relocated to the South-Eastern quadrant of the site, effectively separating these higher intensity use areas from the industrial buildings”; Stage 3 was to commence upon the completion of Stage 2, and required an approval duration of up to 10 years.[17]
  4. [37]
    Sections 4.2 to 4.4 of the report dealt individually with each of the three proposed uses under the material change of use.[18]  Section 4.2 identified that the development’s primary use was Driver Training and Instruction for Plant Equipment, Heavy Machinery and Large Vehicles, but that the administration and indoor training would be relocated upon the completion of the building in Area B.
  5. [38]
    Section 4.3 dealt with the Motor Vehicle Repair Station proposed use.  It stipulated that the machinery workshop was located on the southern boundary of the site, separate from the training areas, storage areas and administration office buildings.  The report stated that area would be exclusively used for the repair of motor vehicles and plant equipment used in driver training activities.
  6. [39]
    Finally, section 4.4 dealt with the Environmentally Relevant Activity proposed use.  Principally that identified the motor vehicle workshop as the focus of that use.[19]
  7. [40]
    Section 8.2 of the report referred to the timing of the project in these terms: “The Applicant wishes to proceed with the development as soon as the necessary development permits are issued”.[20]
  8. [41]
    Plans were included with the report in Appendix C, identifying the progressive development under Stages 1, 2 and 3.[21]  Reference to those plans supports the description given in the report, that existing training areas would eventually be the site of proposed buildings and progressive development of other areas.
  9. [42]
    Table 2 in the Gassman report set out the three stages of the overall development which was the subject of the approval for material change of use.  Section 4.1 of the report identified Table 2 as showing the “breakdown of the use footprint for each stage”, which was then further delineated in a Development Footprint Plan attached as Appendix D to the report.  The plan in Appendix D[22] contains three separate plans representing the three stages of the development.  The extent of the application is represented in each case, and the use footprint for each stage is represented in different coloured codes.  The three plans show that the use footprint alters at each stage of the development.  Stage 1 was said in the Gassman report to be “a reflection of the site at present”, which incorporated current structures and preparation for the construction of additional buildings.  The current structures and use are identified as Area A both in Table 2 and in the use footprint for Stage 1 in Appendix D.  Then Stage 2 reveals a reduction in the use footprint principally in the south of Lot 36 and by reference to the relocation of the machinery workshop, garage and administration buildings out of Area A and into Area B (the area which had been cleared in preparation for construction of industrial buildings).  Then in Stage 3 the use footprint is split between the southern portion of Area A and Area B.  Table 2 describes that as being the relocation of the training areas to the south-eastern quadrant of the site.
  10. [43]
    Thus it can be seen that it was always contemplated that the material change of use involved a progressive development across three Stages with additional buildings being constructed in the later Stages.  In addition, Stage 2 involved the decrease in use because the machinery workshop, garage and administration buildings were to be relocated.  However, the material change of use which rendered lawful the use related to ERA 28 commenced immediately.

Construction of conditions 5 and 6

  1. [44]
    In my view, for the reasons expressed above and the additional reasons below, the phrase “the commencement of the use of the premises” in conditions 5 and 6 refers to the commencement of the lawful ERA 28 use immediately upon the 2010 Approval taking effect.
  2. [45]
    First, consideration has to be given to what the 2010 Approval itself said as to completion.  Condition 51 provided:

51 Completion date

The change of use for Service Industry Type B (Driver Instructing) and Motor Vehicle Repairs must happen by 12 February 2016. Pursuant to section 3.5.21A of the Integrated Planning Act 1997, this development approval lapses if the change of use does not happen by this date.”

  1. [46]
    The “change of use” referred to in condition 51 was the “material change of use” authorised by the 2010 Approval but, significantly, not in respect of ERA 28.  Self-evidently the 2010 Approval proceeded on the basis that the material change of use for the Service Industry Type B (Driver Instructing) and Motor Vehicle Repairs, namely the increase in intensity and scale of the existing use, would not occur immediately upon the 2010 Approval becoming operative, but rather over time.  It specified a completion date nearly six years into the future.  Section 3.5.21A of the Integrated Planning Act provided that where there was a condition (such as 51), which specified that development or an aspect of development had to be completed with a certain time, and the development (or that aspect) was started but not completed in time, then “the approval, to the extent it relates to the assessable development or aspect not completed, lapses”.
  2. [47]
    Therefore, the statutory scheme in which the 2010 Approval was given, and in which its conditions fall to be construed, was one which made specific provision as to when part of the approval lapsed, but not that part applicable to ERA 28.
  3. [48]
    Secondly, approval was given to a staged development culminating in a material change of use, where the demands upon the water supply infrastructure and sewerage infrastructure would not be complete until later in the development.  However, the material change of use in respect of ERA 28 commenced immediately.  The obligation as to when the contributions had to be paid to pay the contributions was triggered by the first commencement of use, and that was immediately upon the 2010 Approval taking effect.  Thus the obligation to pay those contributions was not a precondition to the development commencing.
  4. [49]
    Thirdly, that construction is consistent with the evident intention of the legislature, reflected in s 340(1)(a) of the SPA, under which “development” could commence upon the 2010 Approval taking effect, which occurred the day it issued.  That coincided with the underlying premise of the application for material change of use, namely that the applicant wished to proceed with the development as soon as the necessary permits were issued.[23]
  5. [50]
    The matters outlined above demonstrate, in my respectful view, that conditions 5 and 6 do not require payment of the infrastructure contributions as a precondition to the commencement of the use under the 2010 Approval.
  6. [51]
    In my respectful view, reliance upon Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd is misplaced.  The issue there was whether a business was conducting a lawful use at a particular point in time.  The business operator had Council’s consent but that was made subject to conditions.  The conditions included a requirement that the development to which the application related be “generally in accordance with” identified plans, which provided for the modification of the existing building, and further conditions which had to be complied with at varying times including “prior to commencement of use”.  Both parties accepted the validity of the consent and the lawfulness of the conditions it contained, but the business proprietor argued that the consent made use of the premises as a shop immediately lawful, irrespective of the non-performance of, or non-compliance with, the conditions.  This Court held that the construction of the consent was that it suspended the lawful use of the premises as a shop until the conditions were performed or complied with.[24]
  7. [52]
    Further, the Court held that the consent had immediate effect, and operated to give permission to use the premises but only on the basis that the use commenced once the conditions were fulfilled.
  8. [53]
    Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd is plainly distinguishable from the current position.  That is not only because it operated under a different statutory regime, though that would be enough.  The particular consent was different in nature from that which applied here.  In Pad-Mac the conditions had to be fulfilled before the use could be considered to be lawful.  In the present case the development approved under the 2010 Approval could commence immediately without payment of the infrastructure charges being made.  The timing of those payments depended upon other matters which in every case were later in time by reference to the commencement of the development, the latest being when the material change of use actually commenced.
  9. [54]
    The applicants also referred to the decision of the New South Wales Court of Appeal in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc.[25]  That involved the question of whether a development consent had lapsed because it had not been commenced within a specified period.  Section 99(1) of the Environmental Planning and Assessment Act 1979 (NSW) provided that a development consent would lapse unless the development, the subject of that consent, was commenced within two years.  Then s 99(2) provided that “development is commenced when building, engineering, or construction work relating to that development is physically commenced on the land to which the consent applies”.  Physical work had been done on the subject site, consisting largely of clearing an area for a proposed access road, clearing sites for stockpiling topsoil, vegetation and equipment, and removing some topsoil.  However, there was no challenge to the primary judge’s conclusion that the developer could not rely upon that work because it was done unlawfully in breach of one of the conditions.  Nonetheless, it was contended that the physical work, done in breach of that condition, was work “relating to that development” for the purposes of s 99(2), so that the development had been commenced in time.  The Court held that because the work which was done was illegal it was not work “relating to that development” and therefore not the subject of consent.[26]  That is sufficient to distinguish Iron Gates from the present case.
  10. [55]
    To similar effect is the decision in Coalcliff Community Association Inc v Minister for Urban Affairs and Planning.[27]  Under the same statutory regime as in Iron Gates, the Court considered the grant for conditional development consent, where the conditions required construction of a particular underground drift in a coal mine, and entry into a deed of agreement to cede certain land upon completion of the coal mining.  Neither had occurred but the coal mining went ahead.  Adopting the decision in Iron Gates, the Court held that the development consent had lapsed.[28]
  11. [56]
    In neither case was there a provision such as s 340 of the SPA, permitting development to start when the development permit took effect.  That is a significantly different feature which distinguishes those decisions.  The applicants urged that an equivalent decision existed at the time of Iron Gates and Coalcliff, namely s 93(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW).  It provided:

“(1) Subject to subsections (2) and (3), where a determination under section 91 is made by the granting of consent, the consent shall become effective and operate from –

  1. (a)
    … the date of consent that is endorsed, as prescribed, upon the notice referred to in section 92; …”
  1. [57]
    In my respectful view, s 93 of the New South Wales Act does not have the same scope of operation as s 340 of the SPA.  It merely says that the consent will be effective and operate from the date it is endorsed.  That says nothing about the conditions in it.  By contrast, s 340 of the SPA says that development can commence from the time the development approval issues.
  2. [58]
    For these reasons ground 1 fails.

Ground 2 – lapse because of condition 1 (development in accordance with the approved plans)

  1. [59]
    The contention advanced here, both below and before this Court, was that there were significant departures from the approved plans and drawings contained in the 2010 Approval which had the effect that the 2010 Approval lapsed on 17 February 2014,[29] “because the particular use under the 2010 Approval did not occur prior to that date”.[30]
  2. [60]
    The contention was based upon the wording of condition 1 of the 2010 Approval, which relevantly provided:

1. Development is to be generally in accordance with specified plans/drawings

The development must be carried out generally in accordance with the approved plan/drawings listed below, stamped and returned to the applicant with this decision notice.”

  1. [61]
    The balance of condition 1 consists of a list of plans and drawings.  The only relevant drawing for present purposes is the plan of development 3830-05-06.[31]  As to that plan, the learned trial judge referred to evidence from Mr Matthew Tenkate who made four points about departures in respect of that plan:[32]
    1. (a)
      two of the three buildings highlighted on that plan as “existing buildings” did not exist and have never been built; the only building that was constructed is a building at the north east corner of Lot 36;
    2. (b)
      the plan displays an access road and designated training areas, which did not exist at the time and were never intended; there has not been an access road or training areas onsite “in the manner depicted in that drawing”, nor a cul-de-sac as part of training area 3;
    3. (c)
      the plan does not display a house and old stables at the southern part of Lot 36, which were never intended to be demolished or removed; and
    4. (d)
      the plan incorrectly displays two access points onto Prairie Road; the southern access point is inaccurately located with the actual point being further north; further, it was always the case that the three access points on the site would remain unchanged; those access points remain, except the middle one has been moved slightly to the north by about 10 metres.
  2. [62]
    The learned trial judge observed that it could be accepted that Mr Tenkate’s evidence reflected departures from the approved form of the development that were not minor.[33]  His Honour then referred to observations relied upon by the applicants, in McDonald v Douglas Shire Council.[34]  In that decision the question was whether a town planning consent had lapsed under s 4.13(18) of the Local Government (Planning and Environment) Act 1990 (Qld).  The passage relied upon, both below and before this Court, appears in the judgment of de Jersey CJ:[35]

[5] It will be seen from s 4.13(18) that to avoid the lapsing of a consent, within four years of its issue (or any extended period – not applicable here), at least one of a number of things must have been “commenced”:  the use of the land the subject of the approval, the use of (an existing) building or other structure the subject of the approval, or the erection of a building the subject of the approval.

[6] In my view the words in (a), “the subject of the approval”, qualify the preceding words “the use of the land”, “the use … of a building or other structure on land”, and “the … erection of a building or other structure on land”.  The words are not meant simply to identify the “land”.

[7] Ordinarily read, the provision appears to focus on “the subject of the approval”.  Having identified that, one asks was that “commenced” within four years of the issue of the consent.  If not, the consent has lapsed.”

  1. [63]
    As will be evident from the passage above, the decision in McDonald v Douglas Shire Council turned on the proper construction of s 4.13(18) of the Local Government (Planning and Environment) Act, which provided:

“A permit issued pursuant to subsection (12) lapses where:

  1. (a)
    the use of land or the use or erection of a building or other structure on land, the subject of the approval in respect of which the permit was issued, has not been commenced within 4 years of the date of issue of the permit …; or
  1. (b)
    a use of any premises established pursuant to the permit has ceased for a period of at least 12 months.”
  1. [64]
    It was held that s 4.13(18) was intended to ensure that the goal envisaged by the consent was fulfilled within four years.  In that case the consent was to use the land as a resort.  A maintenance shed had been constructed on the site, as well as a generator shed, two tank stands and some floor slabs.  In addition an artesian bore had been installed and some roof trusses and wall frames had been constructed.  Otherwise, nothing had been done and the land had never been used as a resort.  The Court held that in ordinary parlance the use had not commenced within the prescribed period and that the erection of a building should not be regarded as the subject of approval, but merely a step towards fulfilment of the purpose of the approval, which was use of the land as a resort.[36]  Relying on the definition de Jersey CJ said:[37]

“In relying on excavation for a conclusion that the use had commenced, his Honour had recourse to the definition of “use” in s 1.4.  Accepting that excavation occurred, there was “use” within s 1.4.  But s 4.13(18) requires the commencement of “use of land … [that use being] the subject of the approval”.  It obliges one to look at the approval, identify the particular use envisaged by that approval, and ask has that particular use commenced.  Recourse to the general definition of “use” under s 1.4 is therefore in my view unhelpful to a consideration of the application of s 4.13(18).

In my view the use of land as a resort, being the subject of the approval, not having commenced within the prescribed period, the consent must be taken to have lapsed.”

  1. [65]
    The contention before the learned trial judge, relying upon McDonald v Douglas Shire Council, was that the Court could not be satisfied that the activities undertaken by the applicants on Lot 36 have given effect to the particular use envisaged by the 2010 Approval, given the departures from the approved plans.  His Honour held that the departures were in no way determinative of the question whether the use to which the land was being put was the use contended for by the Council.[38]
  2. [66]
    The contention before this Court was that the learned trial judge did not express disagreement with or distinguish the approach in McDonald v Douglas Shire Council, nor explain why the departures from the approved plans or drawings should not be determinative of a failure to commence the use of Lot 36 under the 2010 Approval.
  3. [67]
    In my view, reliance upon McDonald v Douglas Shire Council is misplaced.  There is a distinct difference between s 4.13(18) of the Local Government (Planning and Environment) Act, and s 341 of the SPA, which provides that “the approval lapses if the first change of use under the approval does not start within” four years from the date the approval takes effect.
  4. [68]
    In McDonald v Douglas Shire Council the relevant use subject to approval was the use of the land as a resort.  In the present case the approval was for a material change of use, relevantly defined as being “a material increase in the intensity or scale of the use or premises”.  Section 341 does not require, by its terms, that the material change of use start within four years, but rather the “first change of use under the approval” starts within that time.  Where, as here, the approval relates to a change in use which will increase over time, or even fluctuate over time, it could hardly be determinative that the initial steps might have involved a departure from the approved plans or drawings.
  5. [69]
    The contention advanced is that because of the departures from the approved plans/drawings, the approval lapsed.  Yet, the evidence referred to by the learned trial judge was that one of the intended buildings had, in fact, been constructed and that whilst there was some disconformity between the depicted access points on the plans with those on the ground, nonetheless access points existed.
  6. [70]
    Finally, the significant difference between the present case and that which applied in McDonald v Douglas Shire Council is that here there was an existing use which was unlawful without an appropriate approval.  The approval granted for material change of use was to regularise the existing use and permit its increase and variation over time.  In those circumstances departures from the approved plans were, as the learned trial judge said, not determinative of whether the 2010 Approval lapsed under s 341 of the SPA.
  7. [71]
    This proposed ground of appeal fails.

Ground 3 - the Limitation of Actions Act

  1. [72]
    The applicants contended that the Council’s proceedings were out of time because they had been started more than six years from the date on which the cause of action arose.  In that respect they relied upon the provisions in s 10 of the Limitation of Actions Act, which provides:

10 Actions of contract and tort and certain other actions

  1. (1)
    The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose—

  1. (d)
    an action to recover a sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of a penalty or forfeiture.”
  1. [73]
    For the purposes of that provision the term “action” is defined as including “any proceeding in a court of law”: s 5(1) of the Act.
  2. [74]
    The learned trial judge approached this question on the basis of an acceptance of the applicants’ position, namely that the cause of action was complete on 15 February 2010, the date the 2010 approval came into effect.[39]  His Honour concluded that the proceedings were not for the recovery of money, but rather enforcement proceedings concerning alleged non-compliance with conditions of an approval.[40]
  3. [75]
    For the reasons given above the learned trial judge was, in my respectful view, right to conclude that the cause of action was complete, at least as regards conditions 5 and 6, on the day the 2010 Approval issued.
  4. [76]
    However, in my view it is not open to accept the applicants’ contentions even assuming that the proceedings were brought after the expiration of six years from the date on which the cause of action arose.  That is because the character of the proceedings does not come within s 10(1)(d) of the Act.  There are several reasons for that conclusion.
  5. [77]
    First, that provision only applies to “an action to recover a sum”.  The Council’s proceedings were not of that character.  The proceedings were for declaratory relief, the grant of which always depended upon an exercise of discretion in favour of the Council.  An action to recover a sum is apt to describe an action for a debt, rather than declaratory relief depending upon the exercise of discretion.
  6. [78]
    Secondly, s 10(1)(d) applies where the “sum” which is the subject of the action is a sum “recoverable by virtue of any enactment”.  Even if the Council’s proceedings could be said to be an action to recover a sum, in other words the infrastructure contributions, that is not a sum “recoverable by virtue of any enactment”.  No enactment was identified by the applicants as making the contributions recoverable in an action for debt, unlike infrastructure charges levied under the scheme in the Planning Act.[41]
  7. [79]
    Compliance with the obligation to pay the 2010 Approval infrastructure contributions can be made the subject of enforcement proceedings under the Planning and Environment Court Act.  Section 180 of the Planning Act governs proceedings commenced in the Planning and Environment Court for an “enforcement order”.  Such an order is one which requires a person to either refrain from committing a development offence, or to remedy the effect of a development offence: s 180(2).  A “development offence” is one of the offences created under Part 2 of Chapter 5 of the Planning Act.  Those offences include: carrying out prohibited development;[42] carrying out assessable development without a permit;[43] unlawful use of premises;[44] and contravening a development approval.[45]  Whilst the scope of enforcement orders under s 176 of the Planning Act is wide, the essential nature of the proceedings is for an enforcement order compelling the correction of a development offence.  It is not apt to refer to an action for a debt or, in other words, “an action to recover a sum”.
  8. [80]
    Thirdly, reliance by the applicants upon the decision in Amos v Brisbane City Council[46] is misplaced.  It was there held that s 10(1)(d) of the Limitation of Actions Act applied to the Brisbane City Council’s recovery of overdue and unpaid rates.  The statutory regime applicable in that case gave the Council power to levy general rates on rateable land, and overdue rates and charges operated as a charge on the land.  In that case it was not contested that the rates, charges and interest were “a sum recoverable by virtue of an enactment”.  That is sufficient to indicate the distinctly different nature of the statutory context in which those proceedings were brought, and the different nature of those proceedings.
  9. [81]
    Finally, whilst it is true that orders made in favour of the Council might ultimately have the effect of causing the applicants to pay the infrastructure contributions, that does not mean that the proceedings are “an action to recover a sum”, let alone “a sum recoverable by virtue of any enactment”.
  10. [82]
    This proposed ground of appeal fails.

Ground 4 - the Acts Interpretation Act ground

  1. [83]
    Both below and before this Court it was contended that s 38(4) of the Acts Interpretation Act had application to the Council’s failure to institute proceedings in respect of the conditions of the 2010 Approval until it filed the current proceedings in January 2018.
  2. [84]
    Section 38(4) of the Acts Interpretation Act provides as follows:

38 Reckoning of time

  1. (4)
    If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.”
  1. [85]
    The basic chronology is not the subject of contest.  The 2010 Approval issued on 15 February 2010.  On 19 February 2013 the Council issued a show cause notice to the applicants alleging non-compliance with conditions 5 and 6 of the 2010 Approval.  Then in 2013 and 2014 correspondence was exchanged between the Council and the applicants’ solicitors, regarding the quantum of the infrastructure charges.  There was no resolution.  There was further correspondence between October 2014 and November 2015 in respect of the infrastructure charges.  That was followed by a delay between 20 November 2015 and 6 January 2017, at which time show cause notices were issued in respect of various conditions including conditions 5 and 6.  It was at that point that the Council articulated the non-compliance which is the subject of the current proceedings.
  2. [86]
    Solicitors for the applicants responded to the 2017 show cause notices on 10 March 2017, contending that the notices were misconceived.  There was no response by the Council, and the applicants’ solicitors wrote again on 12 December 2017, seeking a response.  The present proceedings were commenced on 12 January 2018.
  3. [87]
    The applicants’ contentions cannot, in my respectful view, succeed.  The learned trial judge considered the issue of delay in bringing the proceedings and concluded that s 38(4) was not applicable.  In my respectful view, his Honour correctly analysed the flaw in the contention:[47]

[24] I am unable to accept that the operation of s 38(4) of the AIA brings into force some form of a de facto limitation of actions defence. In this context, I agree with the submission made on behalf of the Council that as a matter of both construction and intent, the construction of s 38(4) does not create any legal limitation or bar to a proceeding of the type under consideration. In this context, it is also quite clear that the respondents are relying on s 38(4) as a defence for the “recovery of money”. In my view, in circumstances where s 10 of the Limitation of Actions Act 1974 specifically deals with “an action [in (contact or tort) for the recovery of a sum recoverable…” there is no scope for the operation of s 38(4) of the AIA as contended for. As was submitted on behalf of the Council, insofar as proceedings of that nature are concerned, s 10 of the Statute of Limitations Act 1974 “covers the field”.”

  1. [88]
    If s 38(4) did not operate as a limitation of or bar to the institution of proceedings, as I consider to be correct, its application otherwise would depend upon the delay causing some form of prejudice.  However, the applicants confront factual findings that prevent that conclusion.
  2. [89]
    His Honour made a number of factual findings in the course of his conclusion that there had been no material prejudice caused by the delay.  First, the two principals of the business (Mr Matthew Tenkate and Mr Alex Tenkate) each gave evidence that they were well versed in the matters concerning the operation of the business on the land, or able to give a detailed account of what occurred from the earliest days.  Secondly, the evidence of each of Alex and Matthew Tenkate was the subject of adverse findings of credit, to the point that the evidence of each could only be accepted where it was supported by other objectively established facts.  Thus, his Honour concluded that matters identified concerning the loss of documents, raised by Matthew Tenkate,[48] would not have led to a different conclusion as to the fact that the delay had not caused any material prejudice.[49]
  3. [90]
    The facts found by the learned trial judge stand unchallenged.
  4. [91]
    Given his Honour’s finding of a lack of material prejudice by reason of delay that would be enough to dismiss this ground of appeal.  However, the accepted chronology reveals that the non-compliance with conditions 5 and 6 was formally raised by the Council at about three years from when the 2010 Approval had issued.  The applicants disputed the issues raised by the Council, and that is where the matter stayed for some years.  Plainly, the applicants were on notice thereafter that the Council contended that the conditions had not been met and could be enforced.  Nothing changed in that regard.  In that circumstance the suggestion of prejudice caused by delay is untenable.
  5. [92]
    Further, conditions 5 and 6 were applicable, and the time for payment of the infrastructure charges was 15 February 2010, the day the 2010 Approval came into effect.  In the circumstances, failure to pay would constitute a continuing breach of the obligation.  So much was accepted by Senior Counsel for the applicants.  That there was a continuing breach is a circumstance that would prevent finding that the delay in commencing the proceedings caused any prejudice, or was something not done “as soon as possible” within the meaning of s 38(4) of the Acts Interpretation Act.
  6. [93]
    This ground lacks merit.

Ground 5 – error in the construction of “Driver instructing”

  1. [94]
    The applicants’ contentions in this respect commenced with observing that the term “driving instructing” was not defined in either the 1995 Albert Shire Council Planning Scheme or the 2003 Planning Scheme for the City of Gold Coast.  These are the two relevant planning schemes in operation at the commencement of use on Lot 36, and at the time of the 2010 Approval.  The applicants contended before this Court that ascertaining the meaning of the term “driving instructing” was integral to determining whether there had been a material increase in the scale or intensity of the activities comprising that use and the start of that use under the 2010 Approval.  This was said to be necessary because “driving instructing” was part of the training conducted on and from Lot 36 before the 2010 Approval took effect.[50]
  2. [95]
    The contention continued, that the learned trial judge had determined that “driving instructing” included instruction on bobcats, forklifts, backhoes or other plant and equipment,[51] and therefore the finding that there was an increase in intensity in driving instruction use was in error.[52]
  3. [96]
    The first point to note is that the approval for the material change of use refers to three areas, the first of which was described as “Service Industry Type B (Driver Instructing)”.  In the development application itself the current use of the premises was described as “DRIVER TRAINING – PLANT MACHINERY”.[53]  The proposal referred to “DRIVER TRAINING WORKSHOP AND TRAINING AREA”.[54]  In that part of the application which identified how the proposed use was defined in the planning scheme, the description was “Service Industry (Type B) Driver Instruction and Training.[55]
  4. [97]
    The description of the current use at the time of the application was “licensing and training … in machinery and heavy vehicle operations”, and that the proprietor had grown from a “fledgling driver training school” to “one of the most modern and well-maintained Plant and Truck training fleets in Australia”.[56]  Then, section 3.2 described the current use as being “for the purpose of driver training for plant operations, heavy vehicle licenses and truck qualifications”.[57]  Section 3.2 directed the reader to Appendix B for an explanation of the current use.  Appendix B referred to: providing training and assessments in many plant operator tickets and heavy vehicle licenses;[58] the offering of earthmoving plant operator courses and assessments, which included backhoes, bobcats, dump trucks, forklifts and front end loaders;[59] that the training facility related to heavy vehicles and plant training, by licensing and training students in machinery and heavy vehicles;[60] road transport and driver training on heavy vehicles including all forms of trucks and semi-trailers;[61] training courses for both the transport and machinery industries;[62] and training on earthmoving and load shifting plant (such as forklifts, bulldozers, backhoes, graders, scrapers, cranes, excavators and front-end loaders).[63]
  5. [98]
    The proposed use under the development application was set out in section 4.1,[64] as being “the construction of a Driver Training development for the use of operating plant equipment and heavy machinery”.  That was reiterated in section 4.2,[65] referring to the development’s “primary use” as “that of Driver Training and Instruction for Plant Equipment, Heavy Machinery and Large Vehicles”.
  6. [99]
    Appendix A to the Gassman report included the IDAS forms for the development application, detailing the change of use as being “Industrial Land for Driver Instruction and Motor Vehicle Repairs”.[66]
  7. [100]
    There are a series of factual findings in the Reasons below, which touch upon and explain the learned trial judge’s approach to this issue. 
  8. [101]
    The first is a general finding that the factual statements drawn from promotional material issued by the applicants[67] were likely to be accurate in the description of the existing use,[68] as outlined in paragraphs [96] to [97] above.  That material referred to driver instruction or driving instruction in a way not confined to driving trucks or semi-trailers, but including other plant and equipment.  In my view his Honour’s conclusion that “driving instruction” went beyond trucks and included plant and equipment, was correct.
  9. [102]
    The learned trial judge also referred to documents published by the applicants subsequent to the 2010 Approval, which referred to “continued growth” or an expansion of activities.[69]  His Honour rejected the qualifications placed upon the documentary evidence by Mr Alex Tenkate or Mr Matthew Tenkate.  Given that his Honour’s conclusions about the reliability of their evidence was based upon adverse credit findings, those conclusions could not now be attacked, even if there were an ability to do so in an appeal to this Court.
  10. [103]
    The learned trial judge summarised his factual conclusions as being (relevantly):
    1. (a)
      there had been a material change in the use of the land as a consequence of the intensification in the driving instruction use on the land, that comprehending driving instruction on all forms of trucks as well as other plant and equipment such as forklifts, bobcats and backhoes;[70] and
    2. (b)
      while there had been driving instructing courses being conducted on the land since the late 1990s, it was at a scale materially less than as at the date of the development application.
  11. [104]
    The factual findings underpinning that summary appear in the Reasons below at paragraphs [103]-[107].  The findings include that the truck training had increased in the 2008/2009 period, the continued growth of the business had focused on training the transport and construction industries, the business had grown from a fledgling driver training school with one truck to one of the most modern and well-maintained plant and training fleets in Australia, the increased intensity of truck driving instruction was reflected in the increased number of trucks registered in the name of the applicant which, it could be inferred, related to driving instruction classes on Lot 36, and evidence to the contrary from Mr Matthew Tenkate was rejected.
  12. [105]
    The applicants criticised the reasons of the learned trial judge because, it was said, his Honour failed to deal with submissions made at first instance going to the meaning of “driver training” or “driver instruction”.  At first instance the applicants acknowledged that there was no definition of that term in any relevant planning scheme, and then embarked upon an exercise of trying to give an evidentiary basis which would restrict that phrase to the driving of various forms of trucks, but excluding any forms of plant and other equipment such as bobcats, forklifts, bulldozers and cranes.
  13. [106]
    For a number of reasons I do not consider those submissions should be accepted.
  14. [107]
    First, the relevant submissions which, it was contended, the learned trial judge did not take into account, depended in large part upon acceptance of the evidence of Mr Tenkate.  As noted above, that evidence was rejected unless it was supported by independent documentation.
  15. [108]
    Secondly, the submissions were directed at separating the content of a use concerned with driver instruction and a use concerned with instructions given to operators of plant and machinery other than trucks.  That approach could be seen to be artificial given that the applicants’ contemporary documents drew no such distinction in terms of the business which was operated on Lot 36 in the period leading up to and at the time of the 2010 Approval.  As noted above, much was made of the applicants’ operations in teaching both truck driving and plant and equipment operation.  That was significant because the development application which was lodged by Gassman was specifically to regularise what was an acknowledged unlawful use at that time.  There is not the slightest suggestion in the material that the development application was intended to cover only instructions on driving trucks.  To the contrary, the Gassman report expressly dealt with both categories.  On any reasonable view, the development application was made on the basis that the use described as “Service Industry Type B (Driver Instructing)” was seen by both the applicants’ advisors and the Council as covering both categories of instruction.
  16. [109]
    Thirdly, the learned trial judge was well aware of the dichotomy being urged, and the fact that the current use of the land in 2010 comprehended the instruction of drivers on plant and machinery.[71]  Specifically, in footnote 75 to paragraph [101] of the Reasons below, the learned trial judge held that “Driving instruction included that involving heavy rigid, medium rigid, multi combination vehicles and also other plant and equipment such as forklifts, bobcats and backhoes”.
  17. [110]
    That the development application sought to regularise the use actually being conducted (comprehending both driver instruction on trucks and driver instruction on plant and equipment) was a fact found by his Honour.[72]
  18. [111]
    Equally unsupportable was the contention that the learned trial judge had to determine the precise level of driver training as at February 2010 in order to reach a conclusion about the increased intensity or scale of the operations thereafter.  No such empirical analysis was called for by the conditions or by a consideration of whether a material change of use had occurred by the time of the Council’s show cause notice in 2013, or indeed by the time the proceedings were instituted.  Assessment of such a question can be made on a qualitative basis.  In any event, the factual findings to which I have referred above indicate that there was a degree of data indicating the increase in the numbers of and use of various vehicles.  In my view, it cannot be demonstrated that his Honour’s factual findings were made in error.
  19. [112]
    Nor is there merit in the contention that the learned trial judge’s reasons were inadequate.  The passages to which I have referred above indicate that his Honour addressed the essence of the contention, and made factual findings that disposed of it.  The reasons were sufficient to indicate that the matters had been addressed.
  20. [113]
    This ground fails.

Ground 6 - the MCU, ERA and onus errors

  1. [114]
    Collected under this heading were a number of errors contended to have been made by the learned trial judge.
  2. [115]
    The “MCU error” contended that there was an error by finding that there had been a material change of use for “driving instruction” on Lot 36, in the absence of evidence to justify that finding or, alternatively, by drawing inferences not properly available on the evidence.  Self-evidently this contention challenges findings of fact.
  3. [116]
    The “ERA error” contended that there was an error by finding that there had been a material change of use for “a motor vehicle workshop” and ERA 28 on Lot 36, in the absence of evidence to justify that finding or, alternatively, by drawing inferences not properly available on the evidence.  This contention also challenges findings of fact.
  4. [117]
    The “Onus error” was a derivative of the two alleged errors mentioned above, contending that the learned trial judge had applied the incorrect onus and standard of proof in relation to matters the subject of the MCU error and the ERA error.  As articulated in the applicants’ outline on appeal, the contention was:[73]

“The only discussion of onus by the primary judge appears at RJ [62], which claims that Counsel for Ashtrail and Talranch “accepted that his clients bore the onus (to the ordinary civil standard) of convincing me that there were no legal obligations to meet those conditions”.

That discussion recasts (incorrectly) counsel’s acknowledgment; is contrary to principle (as articulated in Taper); and does not acknowledge the operation of Briginshaw in terms of Council’s onus.”

  1. [118]
    In oral address it was conceded that the highest this ground could be put was that the learned trial judge misconceived what onus the applicants bore, and that may have affected the factual findings that were made.[74]
  2. [119]
    Reliance on Caloundra City Council v Taper Pty Ltd[75] is misplaced.  The relief sought there included declarations as to factual matters, that there had been deliberate contraventions of approvals, and that offences had been committed, but as well, orders compelling rectification work to a building.  It was the latter relief that was influential in Robertson DCJ holding that while the civil standard of proof applied, the sliding scale of proof contemplated in Briginshaw v Briginshaw[76] should be applied.  The relief sought here does not extend so far as in Taper.
  3. [120]
    In any event, it is not at all obvious that the factual findings below were affected by any question of onus.  Evidence was led by both the Council and the applicants, and the findings were based on an assessment of the admitted evidence.  In particular, the findings as to the increase in use were based on the applicants’ evidence.
  4. [121]
    To the extent that they are not comprehended in the reasons set out in paragraphs [94] to [112] and [117] to [120] above, these three proposed grounds amount to an appeal based on challenging factual findings, which is not open on an appeal from the Planning and Environment Court.  Even if they were to be entertained, none of them rises higher than grounds 1-5.
  5. [122]
    Leave to raise those matters should be refused.

Conclusion

  1. [123]
    Grounds 1-5 of the proposed appeal raised points which the Council accepted should be the subject of a grant of leave to appeal.  I agree.  Therefore I would grant leave to appeal, but dismiss the appeal.  I would refuse leave to appeal in respect of the grounds of appeal included within ground 6 above.
  2. [124]
    I propose the following orders:
  1. Grant leave to appeal in respect of grounds 1-5.
  1. Leave to appeal otherwise is refused, with costs.
  1. The appeal is dismissed with costs.
  1. [125]
    MULLINS JA:  I agree with Morrison JA.
  2. [126]
    CALLAGHAN J:  I agree with the reasons for judgment of Morrison JA and with the orders proposed by his Honour.

Footnotes

[1]Council of the City of Gold Coast v Ashtrail Pty Ltd and Anor [2019] QPEC 12.

[2]To which I shall refer as “the 2010 Approval”.

[3]To which I will refer as the SPA.

[4]Submissions focussed on conditions 5 and 6 but the same contentions applied to conditions 10, 12 and 16, which had not been complied with.

[5](1995) 88 LGERA 157.

[6]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71]; Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82 at [55]-[56].

[7]Appeal Book (AB) 863.

[8]Emphasis added.

[9]Reasons below [101] and [108]-[120].

[10]Reasons below [120].

[11]Report by Gassman Development Perspectives, AB 564.

[12]AB 564; AB 568.

[13]Report, para 3.2, AB 570.

[14]AB 573.

[15]AB 573-574.

[16]AB 574.

[17]AB 574.

[18]AB 575.

[19]AB 575.

[20]AB 596.

[21]AB 631-633.

[22]AB 635.

[23]Report, para 8.2, AB 596.

[24]Fitzgerald P at p 158; Pincus and McPherson JJA at p 160.

[25](1992) 81 LGERA 132.

[26]Handley JA (Mahoney JA and Rogers A-JA concurring) at 135.

[27](1999) 106 LGERA 243.

[28]Stein JA at [62]-[66]; Hodgson CJ in Equity at [94]-[96].

[29]Effectively four years from the date the approval became effective.

[30]The applicant’s written submissions regarding the Originating Application, para 245.

[31]AB 853.

[32]Reasons below at [38].

[33]Reasons below at [39].

[34][2004] 1 Qd R 131.

[35]With whom Margaret Wilson J concurred.

[36]McDonald v Douglas Shire Council at [17]-[18].

[37]McDonald v Douglas Shire Council at [19]-[20].

[38]Reasons below at [39]-[40].

[39]Reasons below at [29].

[40]Reasons below at [31]-[35].

[41]Under which the levied infrastructure charge is treated as rates, can attach as a charge on the land, and can be recovered as a debt: s 144 of the Planning Act, and s 134 of the Local Government Regulation 2012 (Qld).

[42]Section 162.

[43]Section 163.

[44]Section 165.

[45]Section 164.

[46][2018] QCA 11.

[47]Reasons below at [24]; internal footnotes omitted.

[48]Exhibit 24, para 93, AB 1167.

[49]Reasons below at [125]-[128].

[50]Applicants’ outline, paras 37-38.

[51]Referring to the Reasons below at [69].

[52]Referring to the Reasons below at [101].

[53]AB 550.

[54]AB 550.

[55]AB 560.

[56]AB 568.

[57]AB 570.

[58]AB 621.

[59]AB 622.

[60]AB 625.

[61]AB 626.

[62]AB 627-628.

[63]AB 628.

[64]AB 573-574.

[65]AB 575.

[66]AB 601.

[67]Contained in Appendix B to the Gassman report.

[68]Reasons below at [68]-[70].

[69]Reasons below at [86]-[92].

[70]Reasons below at [101].

[71]Reasons below at [10], [60], [63], [64]-[69], [85]-[92] and [101]-[107].

[72]Reasons below at [147].

[73]Applicants’ outline, paragraphs 49-50; internal citations omitted.

[74]Appeal transcript T1-12, line 37.

[75](2003) QPELR 558.

[76](1938) 60 CLR 336.

Close

Editorial Notes

  • Published Case Name:

    Ashtrail Pty Ltd & Anor v Council of the City of Gold Coast

  • Shortened Case Name:

    Ashtrail Pty Ltd & Anor v Council of the City of Gold Coast

  • MNC:

    [2020] QCA 82

  • Court:

    QCA

  • Judge(s):

    Morrison, Mullins JJA, Callaghan J

  • Date:

    24 Apr 2020

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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