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  • Unreported Judgment

Textor v Brisbane City Council

 

[2008] QCA 420

Reported at [2009] 1 Qd R 491

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

BD 300 of 2008

Court of Appeal

PROCEEDING:

Miscellaneous Application (Civil)

ORIGINATING COURT:

DELIVERED ON:

23 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2008

JUDGES:

McMurdo P, Holmes and Fraser JJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Leave to appeal granted
2. Appeal dismissed
3. Applicants and first respondent to pay the second respondent’s costs    

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – REZONING APPLICATIONS – GENERALLY – where applicants applied to rezone land – where application under Local Government (Planning and Environment) Act 1990 (Qld) was refused by the first respondent, then allowed by the Planning and Environment Court – where s 4.5(1) of the Planning and Environment Act required the first respondent to apply to the Governor in Council for approval of the amendment to the planning scheme, and the first respondent did not so apply – where applicants, relying on the Court’s rezoning approval, obtained development approval for reconfiguration of land – where second respondents applied for declarations that development approval was invalid because application incorrectly assessed as if rezoning were effective – where learned primary judge found in favour of the second respondents – whether s 2.6 of the City Plan 2000 applied to treat land as if rezoning were effective – whether application of s 2.6 would be inconsistent with s 6.1.26 of Integrated Planning Act 1997 (Qld) which preserved the requirement for the Governor in Council’s approval – whether learned primary judge in making declarations took into account hardship to the applicants

Integrated Planning Act 1997 (Qld), s 2.1.18, s 6.1.26, Chapter 2

Integrated Planning and Other Legislation Amendment Act 2003 (Qld)

Local Government (Planning and Environment) Act 1990 (Qld), s 1, s 4.3(1), s 4.3(2), s 4.4(5), s 4.5, s 7.1, s 7.1A(4)

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, considered

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, considered

COUNSEL:

R G Bain QC, with R A Quirk, for the applicants

M D Hinson SC for the first respondent

P J Lyons QC, with S P Fynes-Clinton, for the second respondents

SOLICITORS:

Clinton Mohr Lawyers for the applicants

Brisbane City Legal Practice for the first respondent

McCullough Robertson for the second respondents

[1]  McMURDO P: The application for leave to appeal should be granted but the appeal dismissed for the reasons given by Holmes JA.  I agree with the orders proposed by Holmes JA.

[2]  HOLMES JA:  The applicants, to whom I will refer as the Huang interests, seek leave to appeal against a decision of the Planning and Environment Court, the effect of which was to set aside a development approval allowing reconfiguration of some land at Parkinson into residential allotments.  The learned Planning and Environment Court judge found that the wrong level of assessment had been applied to the relevant development application.  That finding rested on the conclusion that an earlier Brisbane City Council rezoning approval under s 4.5 of the superseded Local Government (Planning and Environment) Act 1990 (Qld) (“P&E Act”) was ineffective because it had not received the approval of the Governor-in-Council followed by gazettal, as s 4.5(6) of the P&E Act required.  It did not fall within s 2.6 of Chapter 3 of the City Plan 2000, which allowed for the situation where approval had been granted to rezone land under the P&E Act and that approval was yet to be reflected in the planning scheme.  That was because s 2.6 contemplated approval in accordance with all the steps prescribed by s 4.5, a regime continued in place by s 6.1.26 of the Integrated Planning Act 1997 (Qld) (IP Act).  The issues on the appeal for which leave is sought are whether his Honour’s analysis was correct, and whether he erred in declining to exercise his discretion to refrain from making declarations reflecting it.

Legislation, planning schemes and development applications

[3] The Huang interests wanted to undertake a residential development on the land.  In 1995, the entities from whom they acquired it had made application for its rezoning in the 1987 Town Plan from Future Urban to Residential A, pursuant to sub-sections 4.3(1) and (2) of the P&E Act.  Those sub-sections, respectively, permitted application to a local government to amend a planning scheme, and identified rezoning as a permissible subject for such an application.  Section 4.4(5) required the local government to decide an application made pursuant to s 4.3 by approving it; approving it subject to conditions; or refusing to approve it.  After refusal by the respondent Brisbane City Council in December 1995, the application was eventually approved by the Planning and Environment Court in December 2003, on the Huang interests’ appeal under s 7.1 of the P&E Act.

[4] By virtue of s 7.1A(4) of the P&E Act, the Court’s determination became the Council’s decision.  Section 4.5 of the P&E Act provided for what followed from approval by Council or of the Court of an application for amendment of the planning scheme:

Approval of planning scheme amendment by Governor in

Council

4.5(1)Where in respect of an application for an amendment of a planning scheme—

(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;

the local government is, where that application is an application referred to in section 4.3(2) (other than an application made under paragraph (b) of that subsection), to apply to the chief executive for approval by the Governor in Council of the amendment.

(6)The Governor in Council may either—

(a)approve the amendment of the planning scheme; or

(b)refuse to approve the amendment of the planning scheme.

(7) The power of the Governor in Council to approve an amendment of a planning scheme includes power to make such modifications as the Governor in Council considers appropriate.

(9)The approval of an amendment of a planning scheme is to be given by order in council.

(10)The order in council is to identify each amendment that is approved.

(11)The planning scheme as amended becomes the planning scheme for the area concerned, and has the force of law, on notification in the gazette of the making of the order in council.

[5] Here, no application was made to the Governor-in-Council for approval of the amendment to the planning scheme.  But the complicating factor was that by the time the Huang interests had succeeded in their appeal to the Planning and Environment Court, the P&E Act had been repealed and replaced by the IP Act.  The Town Plan no longer existed, and the relevant planning scheme was now the City Plan 2000.

[6] Chapter 6 of the IP Act, which came into effect on 23 March 1998,[1] contained transitional provisions. The Town Plan was given status as a transitional planning scheme[2] until replaced by an IP Act planning scheme.[3] Section 6.1.26 dealt with applications made under the repealed P&E Act:

6.1.26Effect of commencement on other applications in progress

(1)This section applies to:

(a)applications made before the commencement of this section under section 4.3(1), section 4.6(1) or section 4.9(1) of the repealed Act;

….

(2)An application mentioned in subsection (1) must be processed and all matters incidental to the processing (including any appeal made in relation to a decision about the application) must proceed as if the repealed Act had not been repealed.

[7] The City Plan 2000, made pursuant to Chapter 2 of the IP Act, came into force on 30 October 2000.  Chapter 3 of the City Plan “identifies general assessment processes that will affect the regulation of development”.  Section 2 of Chapter 3 is said to identify measures affecting regulation of development.  Under the City Plan, the City of Brisbane is divided into Areas.[4]  Those Areas are identified on Scheme Maps; in respect of each Area, desired environmental outcomes are identified and the appropriate level of assessment (self-assessment, code assessment, or impact assessment) is prescribed by table[5] for different types of proposed development.  On 1 January 2003, some clauses were added to s 2.6 of Chapter 3, including this one:

Land rezoned under the superseded Act where not reflected in the Plan

Where approval was granted to rezone land under the provisions of the superseded Act, and the approval is yet to be reflected in the Plan, the land will be treated as though it were in the equivalent Area for the purpose of assessing development.”

[8] On 16 October 2003,[6] s 6.1.26 of the IP Act was amended, with retrospective effect,[7] by the insertion of two further sub-sections:

“(3)Subsection (4) applies if:

(a)at any time subsection (2) applies for an application mentioned in subsection (1); and

(b)applying subsection (2) requires the amendment of a planning scheme; and

(c)the local government has an IPA planning scheme.

(4)The Governor in Council may amend the IPA planning scheme using the processes under the repealed Act as if the IPA planning scheme were a former planning scheme.”

[9] As already mentioned, it was in December 2003, after those legislative and planning scheme changes, that the Huang interests finally succeeded in their appeal to the Planning and Environment Court and had their rezoning application approved.  In 2004, they made a development application for a reconfiguration of the land for residential purposes.  In reliance on s 2.6 and the Court’s approval of their rezoning application, they identified the land as Low Density Residential (the equivalent Area to Residential A), although it remained designated as Emerging Community in the City Plan.  Consistently with the land’s identification as Low Density Residential, the Council issued an acknowledgment notice classifying the developmental application as code assessable.  On 24 June 2005, the Council approved the development application.  The Huang interests then obtained specific development approvals for earthworks and vegetation management and commenced operational works.

The arguments at first instance

[10]  The second respondents, the Textors, owned land adjoining that of the Huang interests.  On 8 February 2008, they applied for declarations to the effect that the approval of the Huang interests’ development application was invalid.  It was common ground before the judge at first instance that, but for the Court’s approval of the rezoning application on 12 December 2003, the subject land would fall within an Emerging Community Area in Item 4.3, Part 4, Chapter 3 of the City Plan, and that a development application for reconfiguration of a lot in that Area was impact assessable. 

[11]  The Huang interests relied on s 2.6, arguing that they fell within its parameters: approval had been granted but was yet to be reflected in the plan; accordingly, the land was correctly treated as Low Density Residential.  “Approval” was defined in s 1 of the P&E Act:

‘approval’ means—

(a)in respect of the Minister's approval—the Minister's approval in writing;

(b)in respect of the local government's approval—approval, with or without conditions, in writing.”

The relevant approval was the local government’s approval; s 7.1A(4) deemed the Court’s decision, in this case the approval, to be the local government’s decision; that was the approval for the purposes of s 2.6.  If s 2.6 referred to the Governor-in-Council’s approval, it would be limited to situations where that approval had been given, but no gazettal had occurred.

[12]  If the Textors’ counter-argument were to succeed, the Huang interests submitted, the judge should exercise his discretion against granting the declarations sought.  Essentially, their submissions were that they had acted in good faith and in compliance with the law and had expended a good deal of money on operational works; the Textors were motivated by commercial interests in circumstances where they must have been aware of the rezoning approval and development approval since 2005 but had taken no steps; to the contrary, they had proceeded to develop the land relying on the Huang interests’ rezoning and reconfiguration development approvals and had brought the current application only in February 2008.  There was no harm to the environment, nor was any public interest affected by the rezoning. 

[13]  The Textors contended that it was clear, both from the content of s 2.6 and from the reference in its heading to land “rezoned under the superseded Act”, that the section was concerned, not with any interim step in the approval process, but with the Governor-in-Council’s approval; since no such approval had been granted for the Huang interests’ rezoning application, s 2.6 had no application.  To read s 2.6 otherwise would be inconsistent with s 6.1.26 of the IP Act which required adherence to the regime in s 4.5 of the P&E Act.  It was possible on the Huang construction that the Council’s approval of a rezoning application would be given effect, notwithstanding the Governor-in-Council’s subsequent decision to refuse it; it was not likely that the section was intended to permit that result.

The Judgment

[14]  The learned judge at first instance accepted that the court’s decision substituting an approval of the rezoning was the decision of the Council, and the court’s approval was the Council’s approval; but he held that the approval referred to in s 2.6 was the Governor-in-Council’s approval.  That might limit the application of s 2.6 to those situations where the Governor-in-Council had given approval but no gazettal had yet occurred,  “but … it would not be the first piece of legislation drawn which later proved to be of reduced or limited utility”.[8]  He accepted the Textors’ argument that the alternative was less palatable: that a development assessment might proceed on the basis of Council’s approval of a rezoning when ultimately the Governor-in-Council either refused the proposed amendment of the planning scheme or approved an amendment in terms at odds with the Council’s approval. 

[15]  There was nothing, the learned judge said, in the language of s 2.6 which indicated a legislative intent to produce an alternative approval scheme to that in s 4.5 requiring the Governor-in-Council’s approval.  Such an interpretation would be beyond power because it would produce an outcome contrary to that mandated by s 6.1.26 of the IP Act, which clearly contemplated that the P&E Act processes be used to complete a rezoning approval; that is, including approval by the Governor-in-Council.  The broad construction which the Huang interests contended for in respect of s 2.6 would effectively provide a means to obtain a development approval other than under the regime described by the IP Act; and that was unlawful.

[16]  The consequence of the preferred construction was, his Honour concluded, that the Huang interests had not received approval of their rezoning application; that the land as at June 2005 was properly designated as within an Emerging Community Area; that the June 2005 development application therefore required an Impact Assessment, the relevant category being “Impact Assessment, generally inappropriate” and that the development approval of 24 June 2005, having being incorrectly assessed, was invalid.  The question, then, was whether those findings should be reflected in declarations.

[17]  The learned judge set out at length the matters advanced by the Huang interests as relevant to the exercise of his discretion to grant or refuse the declarations sought, and accepted most of them, discussing others at greater length.  He did not accept that there was any evidence suggesting that the Textors had failed to act promptly once they became aware of the issue concerning the validity of the rezoning approval.  The Textors were entitled to pursue their private interests, which might in fact coincide with the public interest in ensuring the development was carried out in conformance with the law.  The Huang interests had expended a great deal of money, and the question was whether, having regard to those costs, it would be unjust to grant the declarations.  But to overlook the absence of the approval would be to set at nought the requirements of the planning legislation.  He did not think it appropriate to suspend the operation of the appropriate declarations in order to allow an application to the Council which might succeed in regularising the situation.

[18]  The learned judge made declarations in accordance with his findings.  The development permit was set aside and the respondent Council ordered to issue a fresh acknowledgment notice for the development application.

The Huang interests’ argument on the application for leave to appeal

[19] The Huang interests reiterated their submission below that “approval” in s 2.6 meant “approval” as defined in the P&E Act: the Minister’s approval in writing or the local government’s approval (or an approval substituted by a decision of the Planning and Environment Court), not approval by the Governor-in-Council.  Section 2.6 presupposed that the steps to be taken under the P&E Act were incomplete; otherwise the approval would have been “reflected in the plan”.  The only hiatus between the Governor-in-Council’s approval and the amendment of the planning scheme was that between the making of the relevant Order-in-Council and its gazettal.  The learned primary judge’s observation that if the limitation of s 2.6 to Governor-in-Council’s approvals gave the section an extremely limited operation, “it would not be the first piece of legislation drawn which later proved to be of reduced or limited utility”, reflected the opposite of the purposive approach to statutory construction.

[20]  Section 6.1.26 of the IP Act and s 2.6 of the City Plan, the Huang interests said, fell within different spheres of operation.  Chapter 6 of the IP Act was concerned with transitional provisions and s 6.1.26, in particular, with the processing of certain types of applications made before its commencement.  Section 2.6, on the other hand, was made in the exercise of the local authority’s powers conferred by Chapter 2 of the IP Act, which dealt with the creation of planning schemes and their proper content.  Section 6.1.26 could not limit Chapter 2’s operation as to what could be included in a planning scheme, except insofar as the planning scheme attempted to alter the processing of the applications with which s 6.1.26 was concerned.  Chapter 2 was equally unconstrained by the P&E Act and the applications available under it.  Given the width of the Council’s powers under Chapter 2 in relation to the content of the City Plan, it was not to be supposed that it would introduce a notion of “approval” in s 2.6 limited in the way contended for by the Textors.  The learned judge had not adequately addressed the Huang argument as to the effect of Chapter 2 of the IP Act.

[21]  As to the exercise of discretion, the Huang interests contended that the primary judge had failed to address their submission as to the hardship they would suffer if the declarations were made.  He had raised the question of whether the costs they had incurred meant it would be unjust to make the declarations sought, but had not dealt with it.  He had treated the invalidity of the rezoning approval consequent on his construction of s 2.6 as of such significance to justify rejecting the discretionary factors in their favour.  Those factors were, that they had acted in good faith; that the fault was the Council’s, not theirs - had the Council taken the proper steps to obtain the Governor-in-Council’s approval, the Huangs would have been entitled to proceed as they did; and that the deficiency was technical.  The judge’s giving primacy to the public interest in compliance with the law, which was only one of the competing discretionary factors, was a misdirection amounting to an error of law.

The Council’s argument on the application for leave to appeal

[22]  The Council supported the application for leave to appeal, concurring with the Huang interests’ argument that s 2.6 and s 6.1.26 had different fields of operation.  The Integrated Planning Regulation by Schedule 1 identified reconfiguring a lot as code assessable unless the planning scheme required impact assessment.[9]  The City Plan did require impact assessment for reconfiguration of a lot where the subject land was within the Emerging Community Area,[10] but the City Plan had also provided an exception by allowing for a different level of assessment in the circumstances identified by s 2.6.  That was an exercise of the Council’s power under Chapter 2 of the IP Act to make a planning scheme and to choose a criterion for determining the level of assessment for a future development application.

[23]  Other clauses in s 2.6 similarly dealt with the level of assessment to be adopted in particular circumstances.  The first was where land was approved for subdivision, but the approval was not yet reflected in the plan; and the second was where land was dedicated for parkland purposes but the dedication was not yet reflected in the plan.  In each case, the land was to be treated as though it were in the equivalent Area.  Section 6.1.26 did not apply to, or have any effect on, the Council’s power under Chapter 2 to make a planning scheme and to amend it.  Section 2.6 was not inconsistent with s 6.1.26 so as to make it, as a provision in a statutory instrument, beyond power. 

[24]  The question in this case was the proper construction of the section as it stood in December 2003 when the approval was given by the Planning and Environment Court.  The context of s 2.6 was properly to be considered in determining its meaning; here the relevant time at which to examine that context was December 2003.  For that proposition counsel referred to this passage from Project Blue Sky Inc v Australian Broadcasting Authority:

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed”.[11]

[25]  The field of operation of s 2.6 might have been different as between 1 January 2003, when it was introduced, and 16 October 2003, when subsections (3) and (4) of s 6.1.26 came into effect; but the making of those amendments had altered the context in which it fell to be construed.  As at December 2003, the Governor-in-Council’s approval by Order-in-Council as gazetted effected immediate amendment of the planning scheme.  There was no period between that approval and the amendment of the planning scheme during which s 2.6 could, on the primary judge’s construction, have operation.  A statutory instrument ought not to be construed in such a way as to render it otiose.  It followed that the word “approval” in s 2.6 could only refer to the Council’s approval.

The Textors’ argument on the application for leave to appeal

[26]  The Textors argued that the definition of “approval” in the P&E Act had no relevance to the term as used in s 2.6 of the City Plan.  The purpose of s 2.6 was to make effective a rezoning approval under the previous scheme which had not been reflected in the City Plan.  It was not intended to give the Council’s decision the effect of a rezoning approval when the Governor-in-Council had made no decision in respect of it.  At the time s 2.6 was introduced, s 6.1.26 required that applications not finally determined before the commencement of the IP Act must proceed as if the P&E Act had not been repealed; and the rezoning provisions under the P&E Act required the approval of the Governor-in-Council to effect rezoning approval.  However, the IP Act at that time had no provision for giving effect in the City Plan to a rezoning approval in respect of an earlier scheme.  That was the reason for which s 2.6 of the City Plan was enacted; it was an interim measure by which the rezoning approval gained legal status, operating between 1 January 2003 and 16 October 2003 when subsections 6.1.26(3) and (4) were introduced, allowing the Governor-in-Council to amend the City Plan.

[27]  As to the arguments as to the primacy of the Council’s role under Chapter 2 of the IP Act, the amendment of the planning scheme was not simply in the Council’s hands.  Section 2.1.5 of the Act required the process set out in Schedule 1 to the Act to be followed in making or amending the planning scheme.  That Schedule gave a significant role to the relevant Minister, whose functions, inter alia, included considering whether the State’s interests would be affected by the proposed planning scheme,[12] and then advising the local government either that it was permitted to adopt the proposed planning scheme or advising that it could be adopted subject to conditions imposed by the Minister,[13] with which the local government was then required to comply.[14]  There were two points made: the interaction with the State which under the P&E Act occurred through the Governor-in-Council’s involvement was retained under the IP Act, with the relevant guardian of the State’s interest now being the Minister.  Secondly, prior to 1 January 2003 the process which had to be gone through before the Governor-in-Council’s decision to approve an amendment to the Town Plan could be reflected in the City Plan was potentially a lengthy one.

[28]  It was open to the Governor-in-Council to refuse approval or to modify the approval, but on the Huang construction of s 2.6, effect could be given to a Council approval inconsistent with the Governor-in-Council’s decision.  Section 2.6 ought not to be read as effectively dispensing with the requirement for the Governor-in-Council’s approval; the section would be inconsistent with s 6.1.26 and ultra vires.  Alternatively, s 6.1.26 contained an implied prohibition on attempting by another means contained in the planning scheme to prescribe an alternative method by which a rezoning was to be completed.  Section 2.6 was also beyond power for another reason.  If the Huang construction were adopted, it would have the effect of applying, adopting or incorporating a document other than a planning scheme policy in the Planning Scheme contrary to s 2.1.18 of the IP Act; namely, the Council’s approval of a rezoning application.

[29]  As to the exercise of discretion, the Textors pointed out that if the development application were properly regarded as impact assessable, public notice of the application, giving interested persons the right to make submissions and to participate in an appeal, was required.  That, of course, had not occurred when this application for reconfiguration was made.  The primary judge had identified the matters he considered relevant to the exercise of his discretion, one of which he regarded as more important than the others.  That was a question of judgment and revealed no error.

The construction of s 2.6

[30]  The construction question in this case is one of some difficulty and importance, and undoubtedly warrants the grant of leave to appeal.

[31]  I should say at the outset that I reject the Textors’ argument that the Huang interests’ construction would render s 2.6 invalid because it would involve applying, adopting, or incorporating into the planning scheme the Council’s approval, a document made by a local government.  On the Huang reading, certain consequences flow under s 2.6 from the existence of such an approval, but the fact that the approval exists in documentary form is incidental.  The document itself is not applied, adopted, or incorporated in the City Plan.

[32]  Having said that, I think, for a number of reasons, that the second respondents’ construction of s 2.6 is to be preferred.  The definition of “approval” in the P&E Act does not, it seems to me, assist in establishing the meaning of the term in s 2.6.  It patently is not a definition of the term at large; it is confined to prescribing what is entailed in two forms of approval: that of the Minister and that of the local government.  Nor does reference to other clauses of s 2.6 in relation to land approved for subdivision and land dedicated for parkland advance matters; the first of those clauses involves approval complete upon the Council’s decision and the second, a step taken after the approval process is complete.  They do not serve to illuminate the meaning of the clause of s 2.6 relevant here.

[33]  The phrase in s 2.6, “[w]here approval was granted to rezone land” describes approval of a particular form of planning scheme amendment.  It is not, in my view, apt to describe an approval given under s 4.4(5) of the P&E Act, which is not an approval of a planning scheme amendment, but approval of an application to amend a planning scheme.  That is to say, the local government gives its approval for the application and then takes the steps which s 4.5 requires of it, in a process which may or may not culminate in approval of a planning scheme amendment.  The approval which can properly be described as “approval … granted to rezone land” is the Governor-in-Council’s approval of the planning scheme amendment in the form of rezoning.  The heading to the relevant clause, in its reference to “Land rezoned under the superseded Act”, is consistent with the view that the relevant approval is the conclusive one; ie, the Governor-in-Council’s approval.

[34]  That construction is confirmed by an examination of the context and purpose of the clause’s introduction.  Contrary to what was submitted for the Council, the determination of its meaning can only be assisted by considering its context and purpose (in the sense of the factors which necessitated its introduction) at the time it was introduced; although the provision’s application might vary with events thereafter, its intended meaning could not.  The passage counsel cited from Project Blue Sky Inc which speaks of “examining the context of the provision that is being construed”[15] suggests attention to a current context.  But it is clear from the heading which immediately precedes it, “Conflicting statutory provisions should be reconciled so far as is possible”,[16] and from the passages which follow that the context being contemplated is that of the statute or instrument within which the provision to be construed appears.

[35]  As to the importance of context in the sense of the setting in which a statutory provision is enacted, the observations of  a High Court majority in CIC Insurance Ltd v Bankstown Football Club Ltd[17] (also cited by counsel) are of considerably more relevance:

“[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent”.[18]

[36]  When one looks at the history of the planning legislation provisions under consideration here, it is apparent that when the IP Act was enacted in 1998 s 6.1.26(1) and (2) sufficed to ensure that applications under the P&E Act could be dealt with to conclusion; where the Governor-in-Council approved a planning scheme amendment, gazettal was effective to amend the Town Plan.  That situation changed on 30 October 2000, when the City Plan came into effect.  Between that date and the amendment of s 6.1.26 in October 2003, there was a hiatus not limited to the period between the Governor-in-Council’s approval by Order-in-Council of a Planning Scheme amendment and its gazettal.  Because there was not then any provision for corresponding amendment to the City Plan, any approval by the Governor-in-Council could only be reflected in the City Plan by the Council of its own volition undertaking the amendment process prescribed by Schedule 1 to the IP Act.  In the interim, the rezoning approval was left without any effect; but as of January 2003, s 2.6 operated to recognise the rezoning, at least insofar as assessment of development applications was concerned. 

[37]  The mischief created by the disjunction between the Governor-in-Council’s approval of a rezoning in relation to the Town Plan and any corresponding amendment of the City Plan was ultimately remedied by the addition of subsections (3) and (4) in October 2003.  As much is made clear by the Explanatory Notes:[19]

Amendment of s 6.1.26 (Effect of commencement on other applications in progress)

Clause 99 amends section 6.1.26 to clarify the status of rezoning approvals given for transitional planning schemes or former planning schemes that have not been finally determined by the Governor in Council before an IPA planning scheme comes into effect for the relevant local government.

The current provisions of this section are directed at finalizing rezoning applications made under the repealed Act, but are unclear on how such applications should be finalized under an IPA planning scheme if the application results in the necessity to amend the scheme. The new provisions allow for the Governor in Council to amend the IPA planning scheme in order to finalise the rezoning using the processes under the repealed Act as if the IPA planning scheme was a planning scheme under that Act.

The repealed Act allowed the Governor in Council to make any necessary changes to the zone originally applied for to reflect the commencement of a new planning scheme after the application was approved by the local government, and it is anticipated these provisions will be used under this section to make similar changes to an IPA planning scheme that best reflect the effect of the rezoning approval.”

The lacuna which existed until the October 2003 amendment is sufficient explanation for the addition of the relevant clause of s 2.6 to the City Plan.

[38]  The argument that s 2.6 and s 6.1.26 occupied different spheres of operation, one dealing with transitional applications and the other with setting levels of assessment, falters when one considers the practical consequences of reading s 2.6 in the way contended for by the Huang interests and the Council.  Although Council approval was insufficient to effect planning scheme amendment under the P&E Act, s 2.6 would operate to treat it as effective for the purposes of assessing development applications in relation to the subject land.  It is unlikely, as the second respondents argued, that the Council in adopting s 2.6 of the City Plan would intend to give effect to the Council’s approval of a rezoning application without regard to what the Governor-in-Council might do, an improbability of result which also tips the balance towards the construction contended for by the Textors.[20]  Section 6.1.26 as enacted was clearly intended to preserve the Governor-in-Council’s powers in relation to rezoning applications made under the P&E Act, an intention confirmed by the addition of subsections (3) and (4).  Section 2.6 should not be read so as to produce a different result.  These, indeed, were the learned judge’s reasons for rejecting the arguments as to Chapter 2’s effect, (although they were not articulated before him as fully as they were here), and they were, with respect, well-founded.

The exercise of discretion

[39]  I do not think that any error has been shown in the learned judge’s exercise of discretion in making declarations to reflect his conclusions.  It was suggested by the Huang interests that he had not addressed their submission as to the hardship they would suffer because of their expenditure on development applications and work undertaken; but his Honour clearly and specifically took that matter into account in considering the question of whether it would be unjust to grant the declaration sought.  It was apparent from his conclusion that he should make the declarations that he had answered that question in the negative; it was hardly necessary for him to say so in so many words.  His Honour clearly gave great weight to the importance of upholding the planning legislation.  The fact that he chose to give particular weight to that factor does not amount to error.  His canvassing of all the matters identified as relevant to his decision was comprehensive and detailed; it is not suggested that he took into account any irrelevant consideration; and he made no error as to fact or law.  There is no basis for interference with his exercise of discretion.

Orders

[40]  I would grant leave to appeal and dismiss the appeal with the applicants and the first respondent to pay the second respondents’ costs.

[41]  FRASER JA: I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the orders proposed by her Honour, and with her reasons for those orders.

Footnotes

[1] Building and Integrated Planning Amendment Act 1998.

[2] IP Act s 6.1.2(1).

[3] IP Act s 6.1.4(1).

[4] Chapter 3, s 2.1.

[5] Pursuant to Chapter 2, s 2.5.

[6] Integrated Planning and Other Legislation Amendment Act 2003 (Qld).

[7] Section 2(1).

[8] Textor v Brisbane City Council [2008] QPEC 31 at [34].

[9] Integrated Planning Regulation 1998 s 3(2); Schedule 1 Part 2 Table 3.

[10] Section 4.3.

[11] (1998) 194 CLR 355 at 381 (Footnotes omitted).

[12] Schedule 1 s 11 and s 18(3).

[13] Schedule 1 s 18(4).

[14] Schedule 1 s 18(7).

[15] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[16] At 381.

[17] (1997) 187 CLR 384 at 408.

[18] Footnotes omitted.

[19] Explanatory Notes for the Integrated Planning and Other Legislation Amendment Bill 2003 (Qld).

[20] See Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320.

Close

Editorial Notes

  • Published Case Name:

    Textor & Ors v Brisbane City Council & Ors

  • Shortened Case Name:

    Textor v Brisbane City Council

  • Reported Citation:

    [2009] 1 Qd R 491

  • MNC:

    [2008] QCA 420

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Holmes JA, Fraser JA

  • Date:

    23 Dec 2008

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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