- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
 QCA 329
SUPREME COURT OF QUEENSLAND
P & E Appeal No 2107 of 2003
Court of Appeal
Application for Leave Integrated Planning Act
5 October 2007
12 September 2007
Jerrard and Holmes JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
1.Grant leave to appeal
2.Dismiss the appeal
3.Order the appellant pay the respondent’s costs of the appeal, agreed or assessed on the standard basis
LOCAL GOVERNMENT – PROCLAMATIONS, NOTIFICATIONS AND ORDERS IN COUNCIL – ORDERS IN COUNCIL – where an Order-in-Council was published in 1984 – where the Order-in-Council permitted the development of townhouses on land – where a new planning scheme for the shire was introduced in 1987 which prohibited multiple dwellings – where, despite that zoning, in 1988 the Council approved an application for the construction of 10 townhouses – where in 1991 the then legislative scheme was replaced – where two more pieces of planning legislation were introduced which had the effect that no multiple dwellings were permitted – where one final piece of legislation was introduced – whether the 1984 Order-in-Council survived the various legislative schemes
Acts Interpretation Act 1954 (Qld), s 20
Integrated Planning Act 1997 (Qld), 6.1
Local Government Act 1936 (Qld), s 33
Local Government (Planning and Environment Act) 1990 (Qld), s 4, s 8
Statutory Instruments Act 1992 (Qld), s 7, s 8, s 9
Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485, applied
Goodwin v Phillips (1908) 7 CLR 1, considered
Makucha v Albert Shire Council (No 2) (1993) 81 LGERA 250, considered
Shergold v Tanner (2002) 209 CLR 126, considered
D F Jackson QC, with P G Bickford, for the appellant
D Gore QC, with R Litster, for the respondent
DLA Phillips Fox for the appellant
Blake Dawson Waldron for the respondent
 JERRARD JA: This matter is an application for leave to appeal from a decision of the Planning and Environment Court delivered on 23 February 2007. Leave is sought pursuant to s 4.1.56(1)(a) of the Integrated Planning Act 1997 (Qld) (“the IPA”). The grounds allege the learned trial judge constituting that court erred in law in various ways. Those grounds raise matters justifying a grant of leave.
 The point in issue was whether an Order-in-Council published in 1984, and permitting the development of townhouses on land at Ridgewood Road, Little Mountain, near Caloundra, continued to be in force. The respondent Caloundra City Council was successful in its application to the Planning and Environment Court for a declaration that the Order-in-Council was not of continuing force and effect, and that the land might not be lawfully used for the purposes referred to in the Order-in-Council. The appellant company has been the registered proprietor of the relevant land since 23 September 1996, in its capacity as trustee of the Palmer Motel Unit Trust. It asked this Court to declare the Order-in-Council was of continuing force and effect, and that the land may be lawfully used for the purposes described in it.
 In 1983 the subject land was in the Landsborough Shire, and its development was regulated by an Interim Development By-law (“IDB”), made under the Local Government Act 1936 (Qld) (“the LGA”). That IDB provided that any development on the land at Ridgewood Road required that Council’s consent. On 22 November 1983, and 21 June 1984, that Council gave notice refusing applications made to it, by the then owner of the land, for approval to construct townhouses, 66 being asked for in the first application, and 60 in the second. The then land owner subsequently made a submission to the Department of Local Government, under s 33(6B) of the LGA, which section reserved to the State a power to override decisions of local authorities. Section 33(6B)(a) of the LGA provided:
“Approvals under by-law to use land etc., on recommendation of Minister
(a)The Governor-in-Council on the recommendation of the Minister may at any time and from time to time approve the use of land for any purpose or the erection or use for any purpose of a building or other structure on land where such use, or erection or use is regulated and controlled by a by-law made by the Local Authority pursuant to sub-section 21(b) notwithstanding the provisions of that by-law.”
 Section 33(6B)(1) read:
“(1)Where the Governor-in-Council approves of a recommendation by the Minister, it shall be lawful, in accordance with that approval, to use the land or erect or use a building or other structure on the land, the subject of the approval.
The Governor-in-Council shall notify his approval by Order-in-Council.”
 The Governor-in-Council published the Order-in-Council in the Government Gazette on 17 November 1984, and amended it in immaterial ways a few weeks later. The Order-in-Council approved the development of the land for up to 60 townhouses, subject to conditions set out in a document of the same date and referred to in the Order-in-Council. In its terms, the approval in the Order-in-Council was not subject to any time limit. Since 17 November 1984, there has been a series of planning schemes for that area, and changes in the legislation under which the planning schemes have been made, and the issue litigated was whether the approval in that Order-in-Council continued in effect.
 The changes have included the introduction of a new planning scheme for the shire in 1987, made under the LGA. The land was included in the rural residential zone in that town planning scheme, in which zone multiple dwellings were a prohibited use. Despite that zoning, in November 1988 the Council approved an application for the construction of 10 townhouses, although none were built. Then in 1991 the LGA was repealed and replaced by the Local Government (Planning and Environment Act) 1990 (Qld) (“the P & E Act”). Then came the enactment of the Statutory Instruments Act 1992 (Qld), followed by another planning scheme introduced in 1996, made under the P & E Act. The land was also zoned rural residential in that planning scheme, which had the effect that no multiple dwellings were permitted. Then the P & E Act was repealed, and replaced by the IPA in 1998.
The 1987 town planning scheme
 The learned judge considered first whether the 1984 Order-in-Council had been repealed by the Order-in-Council made on 19 December 1987, notifying the new planning scheme. The learned judge concluded that the inconsistency between the provisions under which the 1984 Order-in-Council operated, and the provisions under which the 1987 planning scheme operated, was sufficiently distinctive for it to be a proper implication that an intention to repeal was intended, and had been put into effect. The appellant company did not rely at all on an argument that the use approved by the Order-in-Council could be regarded as an existing lawful non-conforming use, as defined in the 1987 town planning scheme, and the respondent Council did not argue that if it was such an existing non-conforming use, it had been discontinued or had lapsed.
 The learned judge carefully considered the principles relating to repeal by implication when applied to delegated legislation, including Orders-in-Council, referring to Goodwin v Phillips (1908) 7 CLR 1, at 7. Griffith CJ had written:
“As I pointed out in the case of Michell v Scales, a law may be repealed by necessary implication. I there said:-
‘I think that the cases of Mitchell v Brown; Youle v Mappin; and Fortescue v Vestry of St Matthew Bethnal Green, establish this proposition, that when by a Statute the elements of an offence are re-stated, and a different punishment is indicated for it, that is a repeal by implication of the old law.’
That proposition is only an instance of a more general rule, that is, that where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication.”
 The learned judge also referred to remarks by Thomas J (as His Honour then was) in Makucha v Albert Shire Council & Anor (No 2) (1993) 81 LGERA 250, where His Honour wrote:
“Where an inconsistency exists between town planning provisions and another by-law or statute, if the various measures cannot be read sensibly together, one may be impliedly repealed by the other: Goodwin v Phillips (1908) 7 CLR 1 at 7; Byrne Bros Pty Ltd v Maryborough City Council (1984) 57 LGRA 419; Butler v Attorney-General (Vic) (1961) 106 CLR 268.”
 In Shergold v Tanner (2002) 209 CLR 126 at 137, the joint judgment (Gleeson CJ, McHugh Gummow Kirby and Hayne JJ) in the High Court quoted with apparent approval from Gaudron J in Saraswati v The Queen (1991) 172 CLR 1, where Her Honour wrote (at 17):
“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict).”
 The joint judgment in Shergold v Tanner went on to include the remark that in Butler, Kitto J had expressed the question as being whether the two items of legislation could stand or live together, and that later, in Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 at 34, Gibbs J had used the expression “could stand together”.
 The learned Planning and Environment Court judge considered that the express power given in the LGA, to rescind the Order-in-Council by another Order-in-Council, was exercised when the later Order-in-Council approved the 1987 scheme. The learned judge considered that the necessary inconsistency had been shown to exist. I respectfully differ, but only because neither party made anything in argument on this application and appeal of the provisions in the 1987 town planning scheme concerning existing uses and approvals, and how even existing non-conforming uses could cease to exist.
 The judge then considered whether the 1984 approval had been protected by s 20(1) of the Acts Interpretation Act 1954 (Qld), as at 1987. That section provided that the repeal, by an Act, of any previous Act would not (unless the contrary intention appeared) affect any right created, acquired, accrued, established or exercisable prior to the repeal. The judge concluded that the phrase “any Act” included a reference to Orders-in-Council. The learned judge also considered that the circumstances tended to point to the displacement of the operation of s 20. Those included the right to claim compensation if an owner’s interest was injuriously affected by the new planning scheme, and the fact that the 1987 scheme plainly prohibited development of the type permitted by the 1984 Order-in-Council.
 After referring to Resort Management Services Ltd v Noosa Shire Council  2 Qd R 291, the learned judge held there was no basis for concluding that s 20 preserved rights which had simply remained inchoate, and that unless and until the Order-in-Council had been acted upon, no right upon which s 20 might operate actually arose. The judge reasoned that, like a planning scheme, the Order-in-Council had simply announced a general right to the world, but no more. I differ from the learned judge, in that I consider s 20 could preserve an accrued or acquired right to use land in a particular way. The issue is whether the Order-in-Council gave such a right; and then whether the Order-in-Council introducing the new scheme evidenced a contrary intent. I consider the right to use the land was accrued or acquired, and while a contrary intent was shown in the 1987 town planning scheme, absent submissions about the significance of the provisions concerning existing uses or approvals, am not prepared to come to the same clear conclusion that the learned judge did.
The P & E Act
 The learned judge then considered the effect of the introduction of the P & E Act, which came into force on 15 April 1991. That Act contained transitional provisions designed to preserve different rights. Those relevantly included the provisions in Part 8, s 8.10(8) which read:
“Each approval, consent or permission (but not any conditions attaching to the approval, consent or permission) granted by a local authority or the Governor-in-Council prior to the commencement of this Act, is to continue to have force and effect as if it were an approval, consent or permission, as the case may be, made pursuant to this Act (but any conditions attaching to the approval, consent or permission are still to apply as if this Act had not commenced).
(8A) Subject to subsection (8B) and for the purposes of subsection (8), where an approval, consent or permission is subject to a time constraint, the period of that time constraint is to be measured from the date of the granting of that approval, consent or permission.
(8B) A consent referred to in subsection (8) does not lapse pursuant to s 4.13(18), until 4 years after the commencement of this Act.”
 The parties made submissions about those provisions. The 1984 Order-in-Council answers the description of an “approval” by the Governor-in-Council, described in s 8.10(8) of the P & E Act. The terms of s 33(6B)(a), s 33(6B)(1), and the Order-in-Council, all use the word “approve”, or a derivative. It therefore continued to have force and effect as an approval as if it were granted under that Act.
 In Chang v Laidley Shire Council (2007) 81 ALJR 1598;  HCA 37, the joint judgment of Hayne, Heydon and Crennan JJ included, at  the following remarks:
“Terms like ‘right’, ‘interest’, ‘title’, ‘power’ or ‘privilege’ when used in the context of a general interpretation provision like s 20 are to be understood by reference to the statute that has been amended or repealed. They are terms that are not used ‘solely in any technical sense derived exclusively from property law or analytical jurisprudence.”
The statute under which the Order-in-Council was made was the LGA, repealed by the P & E Act, in turn repealed by the IPA. The P & E Act contained a savings and transitional provision in s 8.10. The Council argued, and the learned trial judge held, that those transitional provisions which took effect when that Act first came into force had the effect of terminating the rights given under the Order-in-Council, perhaps four years after the P & E Act commenced. I respectfully disagree. The respondent Council relied on the words in s 8.10(8):
“as the case may be, made pursuant to this Act.”
It argued that every approval, consent or permission previously granted, including an approval by the Governor-in-Council in the form of an Order-in-Council, would continue to have force and effect as if it was an approval “as the case may be” made pursuant to the P & E Act, but only as if it could be such an approval.
 Section 4.13(18) of that Act provides that a permit issued pursuant to subsection (12) of that section lapsed where:
“(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 such extended period or periods as the local government upon application being made to it therefor approves;”
That directs attention to s 4.13(12). That subsection read:
“(12) Where in respect of an application for consent –
(a)which has been approved by the local government, an appeal instituted in the Court pursuant to section 7.1 is withdrawn from the Court; or
(b)the Court, upon the hearing of an appeal, determines that the application should be approved and referred to the local government; or
(c)which has been approved by the local government and no appeal has been instituted in the Court pursuant to section 7.1(2) to (2B);
The Chief Executive Officer is to forthwith issue a town planning consent permit or interim development permit, as the case may require.”
 It follows that s 8.10(8B) gave a four year limit (which would often be an extension), to four years after the P & E Act was enacted, for all approvals of consent given under s 4.13(12) by either a local government or a court, on applications to either for consent. There was no application of that sort made, and the “approval” under the LGA was not by a court or the local authority, but by the Governor-in-Council.
 For that reason I respectfully disagree with the learned judge, who held that one effect of s 8.10(8) would be to embrace things such as the aged Order-in-Council, as something having the same force and effect as if it were a consent made under s 4.13 of the P & E Act. That led the learned judge to conclude that the reference to a “consent referred to in subsection (8)” in s 8.10(8B) also embraced documents such as the 1984 Order-in-Council.
The Statutory Instruments Act
 The learned judge next considered whether the Statutory Instruments Act 1992 had the effect of repealing the Order-in-Council on 1 September 1995. It would have that effect if the Order-in-Council was a statutory instrument, a statutory rule, and subordinate legislation within the meaning of s 7, s 8, and s 9 of the Statutory Instruments Act, and subject to a contrary intention in any instrument. Section 54 of the Statutory Instruments Act has the effect that subordinate legislation expires on 1 September first occurring 10 years after the subordinate legislation was made, subject to a contrary intention in any instrument. I consider that a contrary intention was evident in the 1984 Order-in-Council itself, which was unlimited as to time. I accordingly agree with the learned trial judge, but for reasons different to his, that the Statutory Instruments Act did not apply to extinguish that Order-in-Council on 1 September 1995.
The 1996 Planning Scheme
 The learned judge next considered the effect of the 1996 planning scheme, in which the subject land was again zoned rural residential. The use of it for multiple dwellings, permitted in the 1984 Order-in-Council, was specifically prohibited by that zoning. The judge was not satisfied that there were sufficiently compelling indications of an intention to extinguish the 1984 Order-in-Council, and so held. The judge then moved to consider the effect of the transitional provisions of the IPA, which Act commenced on 30 March 1998.
 Mr Gore QC placed his primary argument for the Council on the effect that he submitted the introduction of the IPA had on the Order-in-Council. He referred to s 1.2.1(b) of the IPA, which declared that its purposes were to seek to achieve ecological sustainability by managing the process by which development occurred. He referred the Court to what he contended was the basic rule under the IPA, namely that a development approval which was for a material change of use, such as was effected by the Order-in-Council, would lapse after four years. That followed from the provisions of s 3.5.20 and s 3.5.21. He then took the Court to the extensive transitional provisions in the IPA, particularly those in s 6.1.23. That section defined wide varieties of “continuing approval” as described in it, and s 6.1.23(2) provided that:
“Despite the repeal of the repealed Act, each continuing approval and any conditions attached to a continuing approval have effect as if the approval and the conditions were a preliminary approval or development permit, as the case may be.”
That section picked up the provisions of s 3.5.20 and s 3.5.21, relevantly providing for expiration of a development approval or permit after four years. Mr Gore QC submitted, and I agree, that the breadth of definition of “continuing approvals” in s 6.1.23(1) was significant. None of the definitions of “continuing approval” in s 6.1.23 were capable of including the 1984 Order-in-Council.
 Section 6.1.23(1)(a) defined and applied to what was previously termed “as of right” uses under s 4.1(5) of the P & E Act. Section 6.1.23(1)(b) referred to permits issued under s 4.13(12) of the P & E Act, described by Mr Gore QC as the conventional consent provisions of that Act. Section 6.1.23(1)(c) dealt with subdivision provisions under the P & E Act and s 6.1.23(1)(d) dealt with:
“approvals (also ‘continuing approvals’), by whatever name called, given under a former planning scheme but not included in paragraphs (a) to (c), in force immediately before the commencement of this section.”
As Mr Gore QC submitted, (d) was an indicator of the extent of the range of continuing approvals dealt with by that section. Then there were the provisions of s 6.1.51.
 That section made express transitional provision for Orders-in-Council made under the LGA in s 33(22A), under the City of Brisbane Town Planning Act 1964 (Qld), or under s 2.21(2)(c) of the P & E Act. It provided that all Orders-in-Council mentioned in s 6.1.51(1) and still in force immediately before the commencement of that section, continued in force as if those orders were regulations made under the IPA. I accept the submission of Mr Gore QC that it was significant that those transitional provisions extended back to other, earlier, legislation, and to Orders-in-Council. For completeness, Mr Gore QC pointed to the fact that the IPA made no provision for the transitional effect of a rezoning approval. They were not treated as continuing approvals, but s 6.1.35A of the IPA provided instead for an application to be made under s 4.3(1) of the P & E Act, as if it had not been repealed.
 Section 20(2)(c) of the Acts Interpretation Act (Qld) provided that the repeal or amendment of an Act does not affect a right, privilege, or liability, acquired, accrued or incurred under the Act. Section 4 of that Act provides that its application may be displaced, wholly or partly by a contrary intention appearing in any Act. The Council’s argument was that the apparently comprehensive transitional provisions made in Chapter 6 of the IPA demonstrated the relevant contrary intention. The issue then became whether the operation of s 20(2)(c) of the Acts Interpretation Act 1954 (Qld) had been displaced.
 The Council suggested, by reference to the judgment of Stephen J in Eaton & Sons Pty Ltd v The Council of the Shire of Warringah (1973) 129 CLR 270, that the use approved of the land by the 1984 Order-in-Council was not properly described as a “right” or a “privilege” acquired or incurred. Stephen J had expressed that opinion about a consent granted by a Council to use land for the storage and reselling of timber, under the County of Cumberland Planning Scheme. His Honour considered it relevant that the consent was “to the world at large in relation to the land which is its subject”, and that it made lawful what would otherwise be unlawful, but by reference to acts, not to the identity of the actor. Referring to Abbott v Minister for Lands, Stephen J considered an alleged right could not be protected so long as it was one common to the community as a whole. Those views clearly command respect, but were strictly obiter in that appeal, in which His Honour had already held that the provisions of a revoking ordinance, in another clause (clause 66), made all the provision necessary or intended for preserving rights. In any event, Stephen J dissented in the outcome of that appeal.
 The learned Planning and Environment Court judge relevantly held that s 20 of the Acts Interpretation Act did not preserve any rights under the 1984 Order-in-Council, because the learned judge considered those rights remained inchoate, never having been acted upon. The learned judge wrote:
“The 1984 OIC is not, on its face, personal to any named party. In the context of town planning law, the rights protected under s 20 are those conferred on a specific individual before the relevant amendment or repeal occurs.”
In Ace Waste Pty Ltd v Brisbane City Council  1 Qd R 233 Davies JA and Moynihan JA said, at 236:
“It is now established that an applicant under a statutory scheme acquires a right within the meaning of s 20(2)(c) only when he or she has a right to have the application determined. That is the effect of the decision of the High Court in Esber v The Commonwealth (1992) 174 CLR 430.”
 The joint judgment in Esber certainly held that a right to have an application considered by a tribunal was a substantive right, and not merely a power to take advantage of an enactment. I am not confident that the joint judgment limited the acquiring of a right to that circumstance, although that view may be correct. In any event, the learned judge also thought it relevant that the Order-in-Council simply identified a lawful use of a specific parcel of land for a specific purpose, without reference to any individual. But the Order-in-Council did give the land owner a right to use the land in a particular way, without any further consent or permission or approval being necessary. That was a right acquired by the land owner.
 Despite disagreement on those points, I nevertheless agree with the learned trial that the transitional provisions of the IPA were clearly inconsistent with the survival of accrued rights under the 1984 Order-in-Council. In Attorney-General (Qld) v AIRC (2002) 213 CLR 485 at 505, the joint judgment of Gaudron, McHugh, Gummow and Hayne JJ included the following:
“The operation of the presumption that accrued rights are unaffected by a repealing statute is, by s 8 of the Interpretation Act, expressly subject to the appearance of a ‘contrary intention’. Therefore, where the provisions of a repealing statute are clearly inconsistent with the survival of accrued rights, those provisions are controlling, and any presumption erected by s 8 is displaced.”
Section 8 of the Commonwealth Acts Interpretation Act is to the same effect as s 20(2)(c) of the Queensland Act.
 The extensive transitional provisions made by the IPA, and the clear intent that that Act regulate development, are consistent only with the legislative intent that those transitional provisions are exhaustive. They are inconsistent with the survival of any accrued rights to use land other than as approved or permitted under the IPA, and inconsistent with the survival of accrued rights to use Netstar’s land for the purposes granted by the Order-in-Council. I therefore agree with the learned trial judge that the operation of s 20 of the Acts Interpretation Act was displaced by the provisions of the IPA. For these reasons I would grant leave to appeal, but dismiss the appeal, and order the appellant pay the respondent’s costs of the appeal, agreed or assessed on the standard basis.
 HOLMES JA: I have had the advantage of reading the reasons for judgment of Jerrard JA. I respectfully adopt his chronology of the legislative and town planning scheme changes affecting the land the subject of the Order in Council. I have some difficulty in understanding why the instrument’s effect was not preserved by the “Existing Use” definition in the 1987 town planning scheme which applied to a use of premises for a purpose “for which an approval, consent or permission was granted before the appointed day”, so as to make the building of town houses “an existing non-conforming use”, the right to continue which would have expired after 12 months under the “existing lawful non-conforming uses” provisions of the planning scheme. However, the respondent Council did not, in its notice of contention, advance any ground to that effect.
 In the result, I agree with Jerrard JA that if the Order in Council remained in operation as at 30 March 1998 when the Integrated Planning Act 1997 commenced, it was then effectively repealed. So far as s 20(2)(c) of the Acts Interpretation Act was concerned, the provisions of the Integrated Planning Act detailed at paragraphs  to  of Jerrard JA’s reasons manifested an intention to be exhaustive as to the rights and privileges preserved, so as to exclude others including any conferred by the Order in Council. I agree, therefore, that leave to appeal should be granted, but the appeal dismissed with costs.
 CULLINANE J: I have had the opportunity to read the judgment of Jerrard JA in this matter.
 For the reasons he gives, the Order in Council the subject of the appeal was repealed, at the latest, by the coming into effect of the Integrated Planning Act 1997.
 I agree with the orders proposed by Jerrard JA.
- Published Case Name:
Caloundra City Council v Netstar P/L
- Shortened Case Name:
Caloundra City Council v Netstar Pty Ltd
- Reported Citation:
 QCA 329
Jerrard JA, Holmes JA, Cullinane J
05 Oct 2007
|Event||Citation or File||Date||Notes|
|Appeal Determined (QCA)|| QCA 329||05 Oct 2007||-|
|Special Leave Refused|| HCATrans 74||08 Feb 2008||-|