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Ajana Park Pty Ltd v Mackay City Council

 

[2009] QCA 404

Reported at [2011] 1 Qd R 403

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Ajana Park Pty Ltd v Mackay City Council & Anor [2009] QCA 404

PARTIES:

AJANA PARK PTY LTD
(applicant)
v
MACKAY CITY COUNCIL
(first respondent)
STATE OF QUEENSLAND
(second respondent)

FILE NO/S:

Appeal No 5427 of 2009
P & E Appeal No 11 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

24 December 2009

DELIVERED AT:

Brisbane 

HEARING DATE:

28 October 2009

JUDGE:

McMurdo P, Fraser JA and McMeekin J
Separate reasons for judgment of each member of the Court,

each concurring as to the orders made

ORDERS:

  1. The application for leave to appeal is refused.
  1. The applicant is to pay the respondents' costs to be assessed on the standard basis if not agreed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – the applicant is a developer of land within the local government area controlled by the first respondent – the second respondent imposed conditions on the applicant's development of land under s 3.5.11(1) Integrated Planning Act 1997 (Qld) – the applicant appealed to the Planning and Environment Court who allowed the appeal in part and slightly modified the conditions imposed – the applicant contends that the primary judge erred in not including fairness as a factor in s 3.5.30 and not taking into account other issues – whether the primary judge erred in his decision – whether fairness is a factor in s 3.5.30 – whether the appeal should be allowed

Integrated Planning Act 1997 (Qld), s 3.3.15, s 3.5.30, s 3.5.32, s 4.1.52(2), s 4.1.56, s 5.1.28

Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386; [1984] HCA 39, cited
Hammercall Pty Ltd v Gold Coast City Council & Anor [2005] QCA 29, considered
Harderan Pty Ltd v Logan City Council [1989] 1 Qd R 524, cited
Hymix Industries P/L & Anor v Alberton Investments P/L & Anor [2001] QCA 334, cited
Lloyd v Robinson (1962) 107 CLR 142; [1962] HCA 36, cited
Mixnam's Properties Ltd v Chertsey Urban District Council [1965] AC 735, cited
Newbury District Council v Secretary of State for the Environment [1981] AC 578, cited
Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554, cited
Read v Duncanson & Brittain (Quarries) Pty Ltd [1988] 2 Qd R 701, followed
Regional Land Development Corp No 1 P/L v Banana Shire Council [2009] QCA 140, followed
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63, considered

COUNSEL:

D R Gore QC, and J D Houston, for the applicant
S C Holland for the first respondent
M D Hinson SC for the second respondent

SOLICITORS:

Wilson Ryan Grose Lawyers for the applicant
S B Wright & Wright and Condie for the first respondent
Crown Law for the second respondent

  1. McMURDO P:  The applicant, Ajana Park Pty Ltd, is a developer of land known as Settler's Rise residential estate at Sugarshed Road, Farleigh, northwest of Mackay in central Queensland.  The land is within the local government area controlled by the first respondent, the Mackay City Council.  Under the Integrated Planning Act 1997 (Qld) (IPA), the Council is the assessment manager in respect of the developer's development application at the heart of this case.[1]  The second respondent is the State of Queensland.  Its Department of Main Roads is a "concurrence agency" under IPA, with the power to impose conditions on the Council's approval of the development application.[2]  The Department decided on conditions which, under IPA, the Council was obliged to impose on the development approval.[3]  Those conditions may be changed on appeal by the Planning and Environment Court.[4] 
  1. The developer appealed to the Planning and Environment Court in respect of two conditions imposed by the Department, namely:

"Condition 3.

At the Maraju-Yakapari Road / Glenella Road intersection, the [developer] shall be responsible for the provision of an additional circulating lane and approaches. In lieu of the physical works, the [developer] may contribute the costs of the works to Main Roads. The cost shall be determined by the department.

Condition 4.

The [developer] shall provide at no cost to the department, sealed shoulders and pavement widening to a 9.0m formation width on Maraju-Yakapari Road between Glenella Road Roundabout and the existing Queensland Rail Crossing. Submit detailed design plans and specifications to the department for approval and provide the works prior to construction of the new access to Sugarshed Road."

  1. The Planning and Environment Court judge allowed the appeal in part, slightly modifying the Department's conditions of the development approval:

"3.At the Maraju-Yakapari Road/Glenella Road intersection, the developer shall be responsible for the construction of the addition of a minimum 40m long exclusive left turn lanes with minimum 40m approach tapes (sic) to each of the northern and southern approaches to the roundabout.

  1. The developer shall provide, at no cost to the Department of Main Roads, sealed shoulders and pavement widening to a 9m formation width on the Maraju-Yakapari Road between the Glenella Road roundabout and the existing Queensland Rail crossing.

At the date of the works the subject of this condition being 'Accepted on Maintenance', the developer shall be reimbursed any contributions and paid to and received by the Department of Main Roads from the developer of the Peppermint Grove Stage 4 and 5 and Reconfiguration of Lot 63 of SP 167656 for the above works."

  1. The developer now applies for leave to appeal from the Planning and Environment Court's order imposing those conditions.  It may appeal from a decision of the Planning and Environment Court on the ground of error or mistake in law[5] but only with leave of this Court or a judge of this Court.[6] 
  1. The developer stated in its application for leave to appeal that the reasons justifying the granting of leave are that "the primary judge erred in law for the reasons set out in the draft Notice of Appeal". In its draft notice of appeal, it set out what it claimed were the errors of law:

"The Primary Judge erred in law:

(a)in interpreting s.3.5.30 of the Integrated Planning Act 1997 as not including fairness as a factor;

(b)in failing to decide the dispute between the appellant and the co-respondent about construction costs;

(c)in failing to decide whether the conditions were 'an unreasonable imposition" on the development for the purpose of s.3.5.30;

(d)in failing to take into account:

(i)the staging of development, and the rate of sale of developed lots;

(ii)the responsibility of the co-respondent (representing the Department of Main Roads) to revise its road improvement program in response to traffic demands;

(e)with respect to the condition relating to the upgrading of Sugarshed Road, in failing to take into account that the road form proposed by the altered condition was not consistent with:

(i)the agreed Council conditions for Sugarshed Road to the west of the Queensland Rail Crossing;

(ii)the changes to the road formation which would be necessary when Glenella Estate was developed."

  1. The draft notice of appeal articulated that leave to appeal should be:

"given for the following questions –

(a)Did the Primary Judge err in interpreting s.3.5.30 of the Integrated Planning Act 1997 as not including fairness as a factor;

(b)Did the Primary Judge err in failing to decide the dispute between the appellant and the co-respondent about construction costs;

(c)Did the Primary Judge err in failing to decide whether the conditions were 'an unreasonable imposition' on the development for the proposes of s.3.5.30;

(d)Did the Primary Judge err in failing to take into account:

(i)the staging of development, and the rate of sale of developed lots;

(ii)the responsibility of the co-respondent (representing the Department of Main Roads) to revise its road improvement program in response to traffic demands;

(e)Did the Primary Judge err with respect to the condition relating to the upgrading of Sugarshed Road, in failing to take into account that the road form proposed by the altered condition was not consistent with:

(i)the agreed Council conditions for Sugarshed Road to the west of the Queensland Rail Crossing;

(ii)the changes to the road formation which would be necessary when Glenella Estate was developed."

  1. I have set out the developer's contentions in its application for leave to appeal and draft notice of appeal to illustrate their unsatisfactory nature. As this Court recently noted in Regional Land Development Corp No 1 P/L v Banana Shire Council,[7] s 4.1.56 IPA, which provides for an application for leave to appeal to this Court, contemplates that an applicant will present alleged errors of law in a way recognisable as such by this Court, without the need for the Court to descend into the evidence to be reviewed on the proposed appeal in order to determine whether leave should be granted.  So much was recognised more than 20 years earlier in Read v Duncanson & Brittain (Quarries) Pty Ltd.[8]
  1. At the hearing in this Court of the present application, counsel for the developer, Mr Gore QC, successfully applied to amend the draft notice of appeal to reflect para 6 of his outline of argument, contending:

"that the primary judge erred in law in 3 respects.

First, the primary judge erred in his interpretation of the conditions power conferred by IPA.  Section 3.5.30 sets out the basic statutory test for the validity of a condition, and s 3.5.11(1) confers the power to impose conditions.  The applicant contends that the primary judge decided on conditions which were more onerous than these provisions allow.

Secondly, in interpreting s 3.5.30, the primary judge erred in failing to take into account the restrictions imposed by s 3.5.32.

Thirdly, because the primary judge adopted an erroneous interpretation of the conditions power, he erred in then failing to decide some of the disputed issues."

  1. Even this statement does not adequately identify with complete clarity and succinct precision the question or questions of law which the developer contends are raised in this application. In any case, those questions should have been clearly articulated in the application for leave to appeal and the draft notice of appeal. But the parties with the concurrence of the judges agreed at the hearing that this Court should, in determining whether to grant leave to appeal, hear argument on, and consider the merits of, the proposed appeal. The Council filed a brief written outline of argument and was represented at the hearing of this application, but did not take an active part in it. The Department supported the approach taken by the primary judge and submitted that his Honour did not err in law in any of the ways contended for by the developer.
  1. These are my reasons for refusing the application for leave to appeal.

The critical provisions of IPA relevant to this application

  1. Chapter 3 of IPA deals with the integrated development assessment system (IDAS), under which the developer brought the development application seminal to this case. Part 5, ch 3 of IPA deals with the decision stage of an application, div 6 of which relates to conditions imposed on development approvals. Section 3.5.30 is in these terms:

"Conditions must be relevant or reasonable

(1) A condition must—

(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or

(b) be reasonably required in respect of the development or use of premises as a consequence of the development.

(2) Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency."

  1. Section 3.5.32 relevantly provides:

"Conditions that can not be imposed

(1) A condition must not—

(b) for infrastructure to which chapter 5, part 1 applies, require (other than under chapter 5, part 1)—

(i) a monetary payment for the establishment, operating and maintenance costs of the infrastructure; or

(ii) works to be carried out for the infrastructure; …

(2) This section does not stop a condition being imposed that requires a monetary payment, or works to be carried out—

(a) to protect or maintain—

(i) the safety or efficiency of existing or proposed State owned or State controlled transport infrastructure; …

(3) In subsection (2)—

State owned or State controlled transport infrastructure means transport infrastructure under the Transport Infrastructure Act 1994 that is owned or controlled by the State."

  1. Chapter 5 of IPA is headed "Miscellaneous" and its pt 1 deals with infrastructure planning and funding. Division 8 of that part deals with the conditions State infrastructure providers may impose for infrastructure. Section 5.1.28 relevantly provides:

"Conditions State infrastructure provider may impose

(1) A State infrastructure provider may impose a condition about either or both of the following—

(a) infrastructure;

(b) works to protect the operation of the infrastructure.

(2) The condition must be only for—

(a) protecting or maintaining the safety or efficiency of the provider’s infrastructure network; or

(b) additional infrastructure costs; or

(c) protecting or maintaining the safety and efficiency of public passenger transport.

Examples of a condition for safety or efficiency

1 a deceleration lane and entry access to a shopping centre development

2 traffic signals at an intersection 1 block from a shopping centre development

3 upgrading transverse drainage under a State-controlled road because of increased hard stand parking area from development

4 road shoulder widening added to reconstruction of a road because of increased traffic loading to stop road edge wear

5 provision of a bus stop and adjacent pull-in bay in a large residential subdivision to accommodate a public passenger transport service

6 provision of a bus turning lane at an intersection for a shopping centre development because of increased traffic loading

7 upgrade of traffic control devices at a rail level crossing because of increased vehicular crossings from nearby residential development

…"

The primary judge's approach

  1. The primary judge noted that all parties' traffic engineers (Mr Camilleri for the developer, Mr McClurg for the Council and Mr Beard for the Department) agreed in a joint report:

"4.  … that it would be inappropriate for … the subject development … to proceed prior to satisfactory arrangements being in place which would ensure the timely upgrading of both the roundabout,[9] and the road[10] generally as proposed by the [Department's] conditions.

  1. It was agreed that, in ideal circumstances, both the subject development and the development of Lot 3 on SP 185584[11] would make contributions to the cost of these upgradings in amounts proportional to that part of total traffic growth during the next ten years which will be generated by their developments and other traffic increases (ie. background traffic growth or additional traffic due to the Mackay bypass).
  1. Taking account of the issues discussed in points 4 and 5 above, it is suggested that a fair resolution of the issues would see the subject development and the development of Lot 3 on SP 185584 each contribute up to approximately 50 percent of the cost of the works, provided both developments are to proceed within the next few years.

"[12]

  1. The primary judge accepted the evidence of the Department's traffic expert, Mr Beard, which supported the conditions imposed.[13]  There is rightly no challenge to that finding of fact in this application which can concern only errors of law. 
  1. The judge was conscious that other residential developments or proposed residential developments in the area not associated with the present developer (including Glenella Estate and Peppermint Grove), as well as the developer's Settler's Rise residential estate, would or might contribute to increased traffic volumes and therefore to the need for the infrastructure to which conditions 3 and 4 relate. His Honour noted that:

"… cases can be made against multiple developers that they ought to contribute by undertaking construction or by monetary contributions in order to relieve the public purse from the burden of having to fund infrastructure to service private developments – amid uncertainty whether any of the developments will actually proceed to the point where the developer actually complies with relevant development conditions. The potential for argument as to whether particular developers have been treated fairly is obviously great. Depending on the circumstances, particular developers may be advantaged by proceeding later rather than earlier, or vice versa. It is accepted that, should the Peppermint Grove developer pay the $76,800[14] and the present [developer] construct the works contemplated, the money should be handed over to the [present developer]. As to 'doubling up' with Glenella Estate, the Department’s stance is now that, east of the railway, where it will form the frontage of Glenella Estate, Sugarshed Road should be widened not just to 9 metres, but to 12 metres, to meet the nationally adopted Austroads Standards, which are more ambitious standards than it would be practical for the Department to meet or insist upon generally. This is not to suggest that, where multiple large developments combine to increase usage, it would be unreasonable to require the developers in combination to provide a more handsome road, one still within accepted standards set by a highly expert body."[15]

  1. The judge took into account the Department's Guidelines for assessment of Road Impacts of Development, which he noted had some statutory recognition in s 3.3.15 and s 4.1.52(2) IPA, setting out guidelines 9.3 and 9.4.[16]  Guideline 9.4 includes:

"It is recognised that there may be instances where other road users (current and future) may benefit from roadworks provided on the basis of a contribution from a development proponent. However, it does not necessarily mean that these road users should contribute to the financing of the roadworks, especially if they did not precipitate the timing of provision of those roadworks. There may be instances where planning instruments created under legislation, such as the IPA, allow for the sharing of state-controlled road infrastructure cost by future development within a defined area. In this case, developers may be entitled to seek a refund of their infrastructure cost from subsequent developments as prescribed by the planning instrument."

  1. His Honour considered that this extract from guideline 9.4:

"implicitly acknowledges that an outcome may not be 'fair'. As observed elsewhere and as [counsel for the developers] emphasized, fairness is not expressly a factor in s 3.5.30, although it may well be considered in the context of what is reasonable.

It is clear that in the present circumstances a monetary contribution is going to be inadequate, because, as [counsel for the developer's] written submissions put it, in the absence of a full contribution for the construction of those works which all the traffic engineers agree should have their actual completion secured before the development can go ahead, those works will not be built by the Department."[17]

  1. His Honour then referred to this Court's decision in Hammercall Pty Ltd v Gold Coast City Council & Anor,[18] and continued:

"It does not follow from Hammercall that the likely efficacy of a condition to achieve construction of necessary roadworks (assuming the relevant development goes ahead) satisfies s 3.5.30. The broader questions about relevance and reasonableness of any condition remain."

  1. His Honour next considered the evidence as to the proportionate contribution to traffic volumes from the developer's Settler's Rise development and from other proposed or existing developments unrelated to the present developer, including Peppermint Grove and Glenella Estate.[19]  His Honour noted that the Department asked Peppermint Grove only for a contribution of about $76,000 for road widening[20] in its development approval, which apparently preceded the development approval in the present case. 
  1. His Honour considered that, whilst it was not difficult for him to be satisfied that the road widening condition (condition 3) was reasonable and relevant in the Hammercall sense, the condition in respect of the roundabout (condition 4) was more difficult because of the more limited contribution of the Settler's Rise proposed development to increased roundabout traffic.  His Honour concluded, although not without some admitted hesitation, that the roundabout condition was:

"not unreasonable in the circumstances.  It must be remembered that s 3.5.30 is couched in terms of what is relevant and/or reasonable, not in terms of what is fair. It is not the court’s task to attempt to produce some sort of parity vis-a-vis outcomes in the halcyon 'Peppermint Grove era' or by reference to the [developer's] own previous development approvals in the locality. It must take the consequences of being the first to enter the field post-Peppermint Grove.

In my judgment, the roundabout condition as now proposed by the [Department] satisfies the relevant tests of relevance and reasonableness. Onerous conditions which may appear quite disproportionate to the proposed development to which they are attached have been held to satisfy s 3.5.30, as, indeed, but for special circumstances mentioned in the majority judgment, the condition in Hammercall might have done."[21]

Did the judge err in law in interpreting s 3.5.30 IPA?

The developer's contentions

  1. Mr Gore contends that the primary judge erred in the passages set out in these reasons at [18] and [21] in excluding fairness as a consideration relevant to imposing a condition on a development approval under IPA.  He emphasises a long line of cases, in both England and Australia, which establish that a planning condition must fairly and reasonably relate to a proposed development.  He also places weight on Callinan J's references in Western Australian Planning Commission v Temwood Holdings Pty Ltd[22] to the requirement that a planning condition must be fair and reasonable in the circumstances of the particular case.  Mr Gore also emphasises the conditions power under the Queensland planning statutes which preceded IPA and the cases decided under them. 
  1. He further contends that, as s 3.5.32(2)(a)(i) IPA provides for the exceptional situation where conditions like the present conditions 3 and 4 can be imposed, the provision should be strictly construed. It should be interpreted as only allowing the imposition of such conditions where it would be fair to do so.
  1. Mr Gore refers this Court to cases dealing with the concept of fairness in the context of the provisions of the Corporations Law.[23]  He contends that the concept of fairness differs from the concept of reasonableness because it involves questions of equity between, in this case, the Department, the developer and the general public.  The general public includes others whose land developments have contributed or will contribute to the need for the road and roundabout upgrades the subject of conditions 3 and 4.  In essence, he submits that the judge should not have imposed the conditions because they were unfair when the contribution of other existing or proposed developments to the need for the infrastructure the subject of conditions 3 and 4 is taken into account. 

Conclusion

  1. As Mr Gore points out, it is well established that planning conditions are lawful only if they fairly and reasonably relate to a proposed development.[24]  Viscount Dilhorne in Newbury District Council v Secretary of State for the Environment,[25] citing Pyx Granite Co Ltd v Ministry of Housing and Local Government,[26] Mixnam's Properties Ltd v Chertsey Urban District Council,[27] and Fawcett Properties Ltd v Buckingham County Council,[28] stated that conditions imposed by local authorities in development approvals must do three things.  They must be for a planning purpose and not for any ulterior purpose; they must fairly and reasonably relate to the development permitted; and they must not be so unreasonable that no reasonable planning authority could have imposed them.  That statement of planning law has long been followed in Australia: see, for example, Western Australian Planning Commission v Temwood Holdings Pty Ltd.[29] 
  1. It is true that Callinan J in that case discussed the obligation of a public authority to act fairly and reasonably in the circumstances when imposing stated conditions upon developers,[30] but it is imprudent to take these words out of context.  Callinan J, incidentally in dissent as to the outcome of the case, commenced his discussion of the primary tribunal's decision by stating that the test was whether "the condition did not fairly and reasonably relate to the approvals and was unreasonable".[31]  This orthodox approach was consistent with the long-accepted Newbury test.  His Honour then discussed the primary tribunal's reference to "the legitimate community concern that a developer contribute to infrastructure costs to the extent permissible, a concept accepted by the High Court in Lloyd v Robinson [(1962) 107 CLR 142] on the basis that the condition is the price for the privilege of subdivision."  Callinan J considered that the tribunal's words "to the extent permissible" are:

"open to an inference that the authority should be looking to and is entitled to extract the maximum that it can from the developer rather than what is fair and reasonable in the circumstances.  Public authorities, particularly those with power to affect proprietary rights are bound to act not only in good faith, but also fairly and reasonably.  No public interest is truly served by conduct which falls short of this standard.  Indeed, high-handed, unfair acquisitive conduct is not only unlawful but is also likely to weaken the authority of and confidence in public administration."[32] (my emphasis)

His Honour also noted that Lloyd v Robinson[33]did not stand for the propositions for which the tribunal cited it.[34]  Later, when determining whether the imposition of the condition was lawful, Callinan J noted that in Cardwell Shire Council v King Ranch Australia Pty Ltd,[35] the apposite statutory test required that a condition could be imposed only if it was reasonably required by the subdivision of the land.  His Honour considered that this test also applied in Western Australian Planning Commission v Temwood Holdings Pty Ltd,because the legislature would not have intended to confer upon any planning authority a power to impose conditions that were not reasonably required by the subdivision.[36]  Callinan J considered that the Cardwell test was similar to that adopted by the House of Lords in Newbury: a condition must be for a planning purpose and not for any ulterior purpose, must fairly and reasonably relate to the proposed development, and must not be so unreasonable that no reasonable planning authority could have imposed it.  His Honour expressed doubt as to whether the third limb of the Newbury test was necessary in light of the second limb.[37]

  1. When Callinan J's observations, that public authorities in imposing developers' conditions should act fairly and reasonably in the circumstances, are understood in context, it is clear that his Honour was not departing from the first two limbs of the Newbury test which states that developer's conditions are lawful only if they are for a planning purpose and fairly and reasonably relate to the proposed development.  His Honour was not adding an additional gloss to that test by superimposing a requirement of general fairness upon the condition-imposing authority.
  1. The terms of s 3.5.30 of IPA require that a condition must both be relevant to, but not an unreasonable imposition on, the development and be reasonably required in respect of the development. They do not in terms refer to fairness. In his oral submissions, in answer to a question as to what the concept of "fairness" would add to s 3.5.30, Mr Gore suggested that the term "fairness" involved equitable concepts that were not present in the term "reasonableness".
  1. The Macquarie Dictionary gives as the first definition of the adverb "fairly": "1.  in a fair manner; justly; impartially".  It defines the adjective "reasonable" from which comes the adverb "reasonably" as "1.  endowed with reason.  2.  agreeable to reason or sound judgment: a reasonable choice.  3.  not exceeding the limit prescribed by reason; not excessive: reasonable terms. …".  The terms "fairly" and "reasonably" are not exact synonyms but in the present context their meanings substantially intersect. 
  1. Like the primary judge, I consider the concept of fairness to be relevant in considering under s 3.5.30(1)(b) whether a condition was "reasonably required in respect of the development". What is important in understanding Mr Gore's contentions is that the test, both at common law and under s 3.5.30, is that the condition must fairly and reasonably relate to the development the subject of the approval. The composite expression used in the common law test, "fairly and reasonably", is qualified by the word "relate" which links the words "fairly and reasonably" to "the development permitted". The composite concept of fairness and reasonableness is qualified in s 3.5.30(1)(b) by the words "in respect of the development". In other words, the concept of fairness and reasonableness, whether under the Newbury test or under s 3.5.30, is tied to the relationship between the condition imposed and the source of power under which it is imposed.  Contrary to Mr Gore's submissions, s 3.5.30 does not impose a general requirement that the condition must be fair and reasonable between, in this case, the developer, the Department and the general public, including other developers (usually companies) not subject to the present development approval that may have contributed or will contribute to the need for the infrastructure the subject of conditions 3 and 4. 
  1. The primary judge's impugned statement, that the concept of fairness was not recognised in the terms of s 3.5.30, merely acknowledged that s 3.5.30 did not mention fairness in its terms and nor did it require a consideration of what was fair in a general sense. His Honour understood that the question was whether the conditions were fairly and reasonably required in respect of the development. The judge was excluding the notion of general fairness as a separate and distinct question to be determined before imposing the conditions.
  1. The judge's reasons made clear that his Honour well understood that, on one view and in a general sense, the conditions were unfair to the present developer. That was because the conditions required the developer to contribute to the safety or efficiency of Queensland roads[38] to a greater extent than others, such as the past developer of Peppermint Grove and the future developer of Glenella Estate, without apportioning the cost of the infrastructure in conditions 3 and 4 according to the contribution to the infrastructure of each development.   His Honour was concerned that the conditions, particularly condition 4, would produce some unfairness to the present developer when its position was compared to that of other developers whose developments had or could ultimately contribute to the need for condition 4.  But the judge could do nothing in the appeal before him about the conditions of the past development approval relating to Peppermint Grove which was subject to the Department's condition of a monetary contribution of only $76,800 towards the infrastructure.  Nor could his Honour do anything about development approvals concerning other developments like Glenella Estate which were not before him.  I note, however, that condition 4 imposed by the judge required the Department to reimburse to the developer specified payments received by the Department from Peppermint Grove and Glenella Estate.  And the judge noted that the Department seemed to be of the view that Glenella Estate should be responsible for road widening to 12 metres, whereas the Department required the present developer to be responsible for road widening to nine metres.[39]
  1. What was before the judge was the evidence, agreed to by all parties' traffic engineers and which the judge accepted, that the present development should not proceed prior to satisfactory arrangements being in place to ensure the timely upgrade of both the roundabout and the road, generally as proposed by conditions 3 and 4. His Honour concluded, unsurprisingly in light of this evidence, that conditions 3 and 4 were "reasonably required in respect of the development". His Honour rightly observed that although fairness was not a term used in s 3.5.30, fairness may, depending on the circumstances, be relevant in a court's determination of what is reasonable under s 3.5.30.  The judge construed s 3.5.30 as not involving in this case any questions of fairness between the present developer and other developers not parties in the appeal before him but whose existing or planned developments would or could contribute to the need for the infrastructure with which conditions 3 and 4 were concerned.  The judge's construction of s 3.5.30 was plainly correct. 
  1. The Queensland planning statutes which preceded IPA and the cases to which Mr Gore took us concerning the Corporations Law are not helpful in construing s 3.5.30 and do not support his contention that the primary judge's impugned comments amount to an error of law in the construction of s 3.5.30.
  1. Section 3.5.32 allows a condition to be imposed that requires works to be carried out to protect or maintain the safety or efficiency of existing or proposed roads. As its terms are clear and unambiguous in their present application, there is no need to give them anything but their ordinary meaning. Contrary to Mr Gore's submissions, s 3.5.32 does not, in its terms or by necessary implication, superimpose any general concept of fairness beyond that incorporated in the concept of reasonableness in s 3.5.30.  Section 3.5.30 requires that any such condition must be relevant to, but not an unreasonable imposition on, the development and to be reasonably required in respect of the development.  As I have explained, on the evidence uncontroversially accepted by the primary judge, conditions 3 and 4 plainly protect and maintain the safety or efficiency of road infrastructure and are so clearly connected with the Settler's Rise development that the development should not proceed without that infrastructure being carried out.  It is also clear on the evidence that conditions 3 and 4 are "relevant to, but not an unreasonable imposition on the development"[40] and are "reasonably required in respect of the development".[41]
  1. Ultimately, if the developer considers that conditions 3 and 4 are too high a price to pay for development approval and would or might make its Settler's Rise residential estate uncompetitive, it can refuse to take up the development approval.
  1. His Honour neither misconstrued nor misapplied the appropriate test in determining under s 3.5.30 whether conditions 3 and 4 were relevant to, but were not an unreasonable imposition on, the development and were reasonably required in respect of it. This proposed ground of appeal does not establish any error of law on the part of the primary judge.

Do the conditions infringe s 3.5.32 IPA?

The developer's contentions

  1. Section 3.5.32(1)(b)(ii) IPA provides that a condition cannot be imposed which requires works to be carried out for infrastructure, except in certain specified circumstances. Mr Gore contends that as s 3.5.32(1)(b)(ii) provides for an exception, it must be strictly construed. He submits that s 3.5.32 does not authorise the imposition of a condition requiring a contribution towards costs incurred in providing or improving transport infrastructure, as opposed to merely maintaining the current efficiency of such infrastructure. Section 3.5.32(1)(b)(i), he submits, envisages a balance between what is fair to an individual developer and what is required by other community demands, including the need for other developers causing in part the need for the infrastructure the subject of conditions 3 and 4 to fairly contribute to it. The conditions imposed by the primary judge offend this principle.

Conclusion

  1. Mr Gore's first contention on this proposed ground of appeal misconstrues the clear terms of s 3.5.32(2)(a) which allow for the imposition of a condition that requires "works to be carried out … to protect or maintain … the safety or efficiency of existing or proposed State owned or State controlled transport infrastructure". Section 3.5.32 is not, in its terms, limited to existing infrastructure. The word "proposed" is plainly concerned with protecting or maintaining future infrastructure.
  1. Mr Gore's second contention largely repeats a submission he made in support of his first proposed ground of appeal. As I hope I have explained, it was common ground amongst all parties that before the present development could proceed, satisfactory arrangements must be in place to ensure the upgrade of the roundabout and the road as required by conditions 3 and 4. These conditions are within the plain terms of s 3.5.32(2).  They fall squarely within the category of examples immediately following s 5.1.28(2) IPA[42] to which courts may have regard in construing legislation.[43]  Mr Beard's evidence, which the judge accepted and which is not challenged in this application, established that the works the subject of the conditions 3 and 4 were necessary to protect and maintain the safety and efficiency of existing or proposed State owned or State controlled transport infrastructure under s 3.5.32(2) IPA. 
  1. This proposed ground of appeal does not establish any error of law on the part of the primary judge.

Did the judge err in deciding the disputed issues?

The developer's contentions

  1. Mr Gore additionally contends that, as the primary judge erred in not considering fairness as a factor, he did not resolve the developer's case that fair conditions should be limited to monetary contributions. He submits that the judge failed to consider the relatively low rate of sales of the developer's developed lots and the staging of the development; the responsibility of the Department to revise its road improvement program in response to traffic demands; that the appeal below related only to stages 5B to 12 of the present development; and that the Department had not directed a refusal of the development application so that the appeal below was only about the conditions of the development proposal.

Conclusion

  1. Mr Gore made clear that he was not submitting in this proposed ground of appeal that the Planning and Environment Court, acting reasonably, could not have imposed conditions 3 and 4: cf Hymix Industries P/L & Anor v Alberton Investments P/L & Anor.[44] Rather, this third alleged error of law is based entirely on the premise that the judge erred in not considering fairness as a factor.  For the reasons I have explained in respect of the first alleged error of law, that premise is not made out.  I need, therefore, deal only briefly with Mr Gore's remaining assertions of error.
  1. The developer did not persuade the primary judge that a monetary contribution in any sum, rather than carrying out actual infrastructure works detailed in conditions 3 and 4, would be a satisfactory condition.[45]  That is not surprising in light of the accepted position of all parties' traffic engineers as to the need for the infrastructure the subject of conditions 3 and 4 before the present development proceeded.  A monetary contribution would not ensure the upgrading of both the roundabout and the road required before the development proceeded.  That is because, as the judge noted, he had no power to require the Department to do work or to enter into any agreement: Harderan Pty Ltd v Logan City Council.[46]
  1. As his Honour accepted that the infrastructure works should be undertaken rather than the developer making a monetary contribution to them, the judge considered that he was not required to resolve the dispute about the amount of any monetary contribution to which the developer may have been liable. The judge's failure to decide this issue, which was not critical to his reasoning or decision-making, was not an error of law warranting the granting of leave to appeal in this case. I note that the judge's reasons, in any case, made adequately clear that the developer failed to persuade his Honour that its costings of the roadwork infrastructure should be accepted.[47] 
  1. It is difficult to see how the developer's submission, that the judge failed to take into account the matters it lists, could amount to an error of law in light of its concession that conditions 3 and 4 could reasonably be imposed by the Planning and Environment Court.  In any case, his Honour in his careful reasons referred to all these matters.  The judge noted that there was no guarantee that the developer's sales would be limited as predicted;[48] that the developer had not offered to limit the rate of production or sales of lots;[49] that there was potential for the development to be completed and sold quickly;[50] that this appeal related effectively only to stages 5B to 12 of the development;[51] and that the Department had not directed a refusal of the application.[52]  The judge also referred to the Department's Road Improvement Program.[53]  In light of the agreed position of all the parties that, before this development proceeded, there must be "satisfactory arrangements … in place which would ensure the timely upgrading of both the roundabout and the road, generally as proposed by the [Department's] conditions",[54] none of these matters raised by Mr Gore, individually or collectively, required the judge to impose conditions different from those he did impose. 
  1. Mr Gore's third proposed ground of appeal does not establish any error of law on the part of the primary judge.

Summary

  1. The developer has not demonstrated that the primary judge made any error or mistake in law. It follows that no appeal lies from the Planning and Environment Court's decision to this Court[55] and the application for leave to appeal must be refused.  I remind applicants for leave to appeal to this Court under s 4.1.56 IPA, that they should succinctly state in their application for leave to appeal and draft notice of appeal the precise error or mistake in law on the part of the Planning and Environment Court or the absence of jurisdiction of that court on which they rely.  Failure to do so may result in summary dismissal of the application.

ORDER:

  1. The application for leave to appeal is refused.
  1. The applicant is to pay the respondents' costs to be assessed on the standard basis if not agreed.
  1. FRASER JA:  I have had the advantage of reading the reasons for judgment of the President. I agree with those reasons and with the orders proposed by her Honour.
  1. McMEEKIN J: For the reasons explained by the President the claimed errors of law are not made out. I agree with her reasons and proposed orders.

Footnotes

[1] IPA, s 3.1.7 and sch 8A. 

[2] IPA, s 3.5.11(1).

[3] IPA, s 3.3.18(1)(a) and s 3.5.11(1)(b).

[4] IPA, s 4.1.52(3) and s 4.1.54(2)(b).

[5] IPA, s 4.1.56(1)(a).

[6] IPA, s 4.1.56(2).

[7] (2009) 175 LGERA 115 at 119-120 [13]-[14]

[8] [1988] 2 Qd R 701, Connolly J (Vasta J concurring) at 703.

[9] Relevant to condition 3.

[10] Relevant to condition 4.

[11] This land relates to a development, Glenella Estate, which is unconnected with the present developer.

[12] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [6].

[13] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [30]-[34], [36], [38]-[41].

[14] In an earlier development application, the Peppermint Grove developer was ordered to pay as a condition of development approval the sum of $76,800, a much smaller amount than the estimated costs of meeting the present developer's disputed conditions 3 and 4.  See the primary judges reasons at [27] and these reasons at [20].

[15] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [8].

[16] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [20].

[17] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [20]-[21].

[18] (2005) 140 LGERA 303 at 329-330 [89]-[90].

[19] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [24]-[26].

[20] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [27].

[21] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [38]-[39].

[22] (2004) 221 CLR 30.

[23] Gambotto v WCP Ltd (1995) 182 CLR 432, Winpar v Goldfields Kalgoorlie (2000) 176 ALR 86.

[24] Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554, 572-573; Sabdoran Pty Ltd v Hervey Bay Town Council [1983] 2 Qd R 172, 178.

[25] [1981] AC 578.

[26] [1958] 1 QB 554.

[27] [1965] AC 735 at 751.

[28] [1961] AC 636.

[29] (2004) 221 CLR 30, McHugh J at 59-60 [72].

[30] (2004) 221 CLR 30 at 77-78 [129].

[31] (2004) 221 CLR 30 at 77 [128].

[32] (2004) 221 CLR 30 at 78 [129].

[33] (1962) 107 CLR 142.

[34] (2004) 221 CLR 30 at 78 [129].

[35] (1984) 58 ALJR 386.

[36] (2004) 221 CLR 30 at 86 [152].

[37] (2004) 221 CLR 30 at 87 [155].

[38] IPA, s 3.5.32(2)(a)(i).

[39] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [8] and these reasons at [14].

[40] IPA, s 3.5.30(1)(a).

[41] IPA, s 3.5.30.

[42] Set out in these reasons at [13].

[43] Acts Interpretation Act 1954, s 14(3).

[44] [2001] QCA 334 at [7], [17], [56].

[45] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [6], [21], [29]-[34], [38]-[40].

[46] [1989] 1 Qd R 524.

[47] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [16].

[48] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [28].

[49] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [28].

[50] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [29].

[51] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [23].

[52] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [1], [4].

[53] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [15], [20], [26], [31], [32].

[54] Ajana Park Pty Ltd v Mackay City Council & Ors Appeal No 11 and Appeal No 12 of 2006, 2 June 2008 at [6].

[55] IPA, s 4.1.56(1).

Close

Editorial Notes

  • Published Case Name:

    Ajana Park Pty Ltd v Mackay City Council & Anor

  • Shortened Case Name:

    Ajana Park Pty Ltd v Mackay City Council

  • Reported Citation:

    [2011] 1 Qd R 403

  • MNC:

    [2009] QCA 404

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Fraser JA, McMeekin J

  • Date:

    24 Dec 2009

Litigation History

Event Citation or File Date Notes
Primary Judgment - - QPEC
Appeal Determined (QCA) [2009] QCA 404 24 Dec 2009 -

Appeal Status

{solid} Appeal Determined (QCA)