Maroochy Shire Council v Wise
[1998] QCA 349
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- Maroochy Shire Council v Wise[1998] QCA 349
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Maroochy Shire Council v Wise[1998] QCA 349
Maroochy Shire Council v Wise[1998] QCA 349
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 3144 of 1998
Brisbane
[Maroochy S.C. v. Wise & Anor.]
BETWEEN:
MAROOCHY SHIRE COUNCIL
(Respondent) Appellant
AND:
P F WISE and D M WISE
(Appellants) Respondents
McMurdo P.
Pincus J.A.
Jones J.
Judgment delivered 3 November 1998
Judgment of the Court
APPEAL ALLOWED WITH COSTS.
THE SENTENCE IN THE ORDER OF THE PLANNING AND ENVIRONMENT COURT DATED 20 MARCH 1998 UNDER THE HEADING "EXTERNAL ROADWORKS" IS STRUCK OUT AND THE MATTER IS REMITTED TO THE PLANNING AND ENVIRONMENT COURT FOR FURTHER CONSIDERATION OF THE QUESTION OF AN APPROPRIATE EXTERNAL ROADWORKS CONDITION, WITH THE ASSISTANCE OF SUCH FURTHER EVIDENCE, IF ANY, AS THAT COURT PERMITS TO BE ADDUCED.
| CATCHWORDS: | TOWN PLANNING - rezoning application - lawfulness of condition imposed - contribution of infrastructure for roads - no specific development proposal - whether power to impose conditions is limited by s. 6.2 of the Act - construction of "relevant or reasonably required". Local Government (Planning and Environment) Act 1990 ss. 6.1(1), 6.2 Lloyd v. Robinson (1962) 107 C.L.R. 142 Cardwell Shire Council v. King Ranch Australia Pty Ltd (1984) 58 A.L.J.R. 386 Proctor v. Brisbane City Council (1993) 81 L.G.E.R.A. 398 |
| Counsel: | Mr C Hughes for the appellant. Mr P Lyons Q.C., with him Mr T Trotter, for the respondents. |
| Solicitors: | Maroochy Shire Council Legal Department for the appellant. Lestar Manning Lawyer for the respondents. |
| Hearing Date: | 19 October 1998. |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 3144 of 1998
Brisbane
Before McMurdo P.
Pincus J.A.
Jones J.
[Maroochy S.C. v. Wise & Anor.]
BETWEEN:
MAROOCHY SHIRE COUNCIL
(Respondent) Appellant
AND:
P F WISE and D M WISE
(Appellants) Respondents
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 3 November 1998
- This is an appeal from the Planning and Environment Court in which the issue has to do with a single question: the lawfulness of a condition sought to be imposed in relation to a rezoning. The respondents applied to the appellant Council to exclude an area of land at Maroochydore from the Drainage Problem Zone and include it in the Commercial Zone. The Council was prepared to do so on certain conditions, including a contribution to infrastructure for roads, and the matter reached the Planning and Environment Court (Quirk DCJ) as a dispute about the conditions. The application for amendment of the Plan, made under s. 4.3 of the Local Government (Planning and Environment) Act 1990 ("the Act"), did not include any specific development proposal; that gave rise to a difficulty, in that the Planning and Environment Court had no means of determining to what extent the development which might ultimately take place on the rezoned land would increase the load on the existing road system.
- The Council sought to impose a condition that the respondents pay the Council $890,000 as a contribution towards external roadworks, described as including but not being limited to certain specified works in the vicinity of the subject land. It contemplated that the sum of $890,000 would be made "progressively to Council in such amounts as Council notifies in writing" and that any balance owing should be paid on or before 30 June 1999; the judgment of the Planning and Environment Court was delivered on 12 March 1998. For reasons which need not be explained, the Council’s demand was subsequently modified; it finally asked for $1.07M.
- In a careful consideration of the propriety of this condition Judge Quirk referred to a variety of matters, including the question whether the Council could validly impose it. On that point, his Honour reached the conclusion that:
". . . the legislature accepts that it is not appropriate that contributions in respect of infrastructure items which are not directly necessitated by a particular proposal be sought under the general conditions power (s. 4.4(5) governed as it is by s. 6.1)".
Mr Lyons Q.C., who led Mr T Trotter for the respondents in this Court, did not dispute the contention, made by Mr Hughes for the Council, that the part of the judgment we have quoted embodied an expression of the judge’s view as to the relevant law which had influenced the decision which his Honour reached; it was that only an amount of $27,666 could be exacted by way of contributions for external roadworks, that being a condition which the respondents were prepared to accept.
- There is nothing in the Act which expressly says whether or not, and if so to what extent, conditions of the kind which is in issue may be imposed. Section 6.1(1) has the effect that when an application of the present kind is made the "local government", an expression which includes the Council, is not to -
"(c)subject its approval of that application to a condition that is not relevant or reasonably required in respect of the proposal to which the application relates, notwithstanding the provisions of a planning scheme".
The substantial argument advanced for the respondents in this Court was that the power to impose conditions on an application for rezoning can, if one examines the provisions of s. 6.2 of the Act, be seen to be limited so as to preclude a requirement that contributions of the kind in question be demanded. That section is, as we understand the argument for the respondents, said either implicitly to affect the interpretation of s. 6.1, the relevant part of which we have quoted, or to limit the general power to impose conditions on such an application given by s. 4.4(5)(b) of the Act, whose effect is that the Council may in deciding an application of the present kind "approve the application, subject to conditions".
- Speaking generally, the effect of s. 6.2 is to define the powers of a local government to require contributions towards water supply and sewerage works as a condition of granting approval to, among other things, a rezoning application. Reliance was placed on the details which s. 6.2 contains; but it does not appear to us that anything material can be derived from them, so far as this appeal is concerned, other than that they make elaborate provision for the subject with which they deal. That subject is the power to require of developers contributions towards water supply and sewerage works; this is regulated in some detail, leaving the Council’s power (if any exists) to require contributions towards works of another kind - for example roadworks - quite unregulated.
- The primary judge made reference to a decision of the Local Government Court in Marsh v. Logan Shire Council [1981] Q.P.L.R. 91, in which the Court refused to uphold a condition requiring contribution to water supply headworks charges, on an application for rezoning. We note that the problem was also raised in Wrathmall v. Brisbane City Council (1979) 39 L.G.R.A. 55 at 59; there, contributions towards the cost of water supply headworks were held to be properly required. In Sabdoran Pty Limited v. Hervey Bay Town Council [1983] 2 Qd.R. 172, the Full Court had to deal with the propriety of a requirement of contributions to water and sewerage headworks, under the then existing law. It does not appear to us that any of these decisions throws much light upon the present problem. More generally, we have not found, in an examination of the history of the subject dealt with by s. 6.2, any real assistance in arriving at a solution to the problem raised by the appeal.
- The leading case on the legality of conditions of the present general kind is Lloyd v. Robinson (1962) 107 C.L.R. 142, which involved the construction of a statute which contemplated approvals to subdivide subject to conditions - without any specific indication as to what sort of conditions might be permitted. That is the statutory context in which the case before us has to be decided, except that there is, as has been pointed out, a prohibition on the imposition of conditions which are not "relevant or reasonably required" and except that it may be that a further limitation must be implied because of the presence of s. 6.2.
- In Lloyd v. Robinson, as we have said, the power to impose conditions was perfectly general; those which were in issue required that substantial areas of land be transferred, free of cost, to the Crown, that a strip of land be provided for road widening and that a service road be constructed on that strip; it is only the first of these which is presently relevant. As to the condition requiring transfer of land free of cost, the High Court said:
"The assumption may be accepted that the statutory power to annex conditions to an approval of a subdivision does not extend to requiring the setting aside for public recreation of land which is so unrelated to the land to be subdivided, because of remoteness from it or some other circumstance, that there is no real connexion between the provision of the open space and the contemplated development of the area to be subdivided. But in the present case it must not be forgotten that the subdivision for which the respondents sought approval was one of a series by means of which an area, fairly to be considered as a whole, was being gradually carved up and placed on the market; and it was well within the limits of a proper understanding of the Board’s functions under the Act to insist, at appropriate stages in the course of applications for approval to the constituent subdivisions, that open spaces be suitably located within the total area to satisfy reasonable requirements in respect of the total area". (153)
- The Court rejected the contention that the requirement for transfer of land to the Crown was beyond power because the land "lay outside the limits of the particular subdivision immediately proposed". The Court also dealt with an argument that the condition as to transfer of land free of cost amounted to confiscation of private property. In answer to that, the Court pointed out (154) that the land owner need not give up the land if he were prepared to abandon the subdivision proposal. The condition was held to be within power; the case is further discussed, below.
- Although English town planning cases do not appear to be of much help in the present case, we note that in Hall & Co. Ltd. v. Shoreham-By-Sea Urban District Council [1964] 1 All E.R. 1, the Court of Appeal was unwilling to countenance a development permission which required that the developer provide a public road at its own expense and that was followed in M J Shanley Ltd (In liquidation) v. Secretary of State for the Environment [1982] J.P.L. 380. But it appears from the more recent decision in R v. South Northamptonshire District Council [1994] 3 P.L.R. 47, that, under current English law, requirements that developers contribute towards the costs of infrastructure are acceptable.
- Mr Lyons referred to the problems which might arise in defining the legal limits of a local government’s power, assuming that there is any, to require contribution to external roadworks. Some of the more obvious questions are whether the developer can be required to contribute to a fund for works to be done later, without definition of those works and without any means of ensuring the works are done; whether the contributions required must be roughly proportionate to the extra traffic likely to be generated by the development; and (a point of importance in the present case) how contributions can be fairly assessed if the developer does not know or will not say what is proposed to be done with the site. With respect to contributions to water supply and sewerage works, s. 6.2, while giving power to impose a condition requiring payment of contributions, also sets up constraints on the exercise of that power. For example, s. 6.2(5) restricts the extent to which a local government may require further contributions, in respect of an application having to do with a particular piece of land, when contributions have already been paid, in respect of a past application. If it is held that, in relation to facilities other than water supply and sewerage works, there is power to impose a condition requiring contributions to infrastructure, developers and councils may be disadvantaged by uncertainty as to what conditions requiring contributions towards the costs of infrastructure will be held to be permissible. This is a consideration favouring the argument put forward on behalf of the respondents, to the effect that the statute should not be read as permitting any requirement of contribution to infrastructure other than under s. 6.2.
- On the other hand, the statute with which we are concerned has been repealed by s. 6.2.1 of the Integrated Planning Act 1997, which comes fully into effect on 1 December 1998. Its provisions relating to the matters in question in this case, contained in Ch. 5, have no resemblance to those we have to construe. This suggests that the proper course is simply to attempt to construe the words of the statute, as they stand, without being unduly influenced by supposed considerations of convenience.
- Some guidance is provided by three authorities, all of which tend to favour Mr Hughes’ argument. The first is Lloyd v. Robinson, a decision which we have already explained; there a condition requiring a donation of land was held to be justified under a statute which gave general power to impose conditions. The condition imposed was intended to achieve provision of park and recreation areas, not being part of the "particular subdivision immediately proposed", which subdivision was "one of a series by means of which an area, fairly to be considered as a whole, was being gradually carved up . . .". On the High Court’s approach, it was permissible to impose such a condition "to satisfy reasonable requirements in respect of the total area" (153). The case is one, then, in which the condition was justified as relating to the provision of facilities to a much larger area than the particular subdivision which was immediately in question.
- The second case requiring discussion is Cardwell Shire Council v. King Ranch Australia Pty Ltd (1984) 58 A.L.J.R. 386, another subdivision case in the High Court. The subject land was some distance off the Bruce Highway and to reach it one had to travel across a bridge; the subdivision when developed was going to increase traffic on the bridge and a condition requiring a contribution of $25,000 towards the cost of a new bridge was held to be within power. The total cost of the bridge was expected to be between $300,000 and $450,000; the bridge, evidently, was not one serving only the subject development. In the Cardwell case the then equivalent of the present s. 6.1(1) of the Act provided, so far as relevant, that it was unlawful to subject the approval to a condition not "reasonably required by . . . the subdivision of the land". The comparable language in the Act is "relevant or reasonably required in respect of the proposal to which the application relates". The Cardwell case is some authority for the view that a general power to impose conditions on subdivision may authorise a requirement that there be a contribution to the cost of infrastructure.
- The last of the three cases is the decision of this Court in Proctor v. Brisbane City Council (1993) 81 L.G.E.R.A. 398, which contains a dictum relevant to the construction of the words last quoted, i.e. "relevant or reasonably required in respect of the proposal to which the application relates". The Court remarked:
"It may well be that a condition which is in no proper sense of the word ‘required’ by a subdivision is nevertheless relevant in the way indicated by the High Court [in Lloyd v. Robinson], as falling within the proper limits of a local authority’s functions under the Act . . . We would not, without further argument, be prepared to accept that the broad notion of relevance as applied in Lloyd v. Robinson can have no application under s. 6.1(1)(c) of the 1990 Act".
As Mr Hughes conceded, the point was left open, but it appears to us that the expression "relevant or reasonably required" should be given what appears to be its ordinary meaning, so that a condition may pass muster as being either relevant or reasonably required. The word "relevant" gives the Council a wider discretion than would ordinarily be conveyed by the words "reasonably required"; but, to reiterate, a monetary contribution towards the cost of a new bridge was in Cardwell held to be justified even by the "reasonably required" test.
- It is perhaps possible to argue that a condition requiring monetary contribution to infrastructure in respect of roads could not be regarded as "relevant" in such a case as this. But as was emphasised in Lloyd v. Robinson, questions of this sort are "within the discretionary judgment" (153) of the person who has the function of making the decision. We have found it impossible to conclude, to adopt the language of Lloyd v. Robinson, that the condition in question is "so unrelated to the land . . . that there is no real connexion between [what the condition requires] and the contemplated development" (153). We are therefore of the opinion that the learned primary judge was in error insofar as he determined the case on the basis that there was no power to impose a condition requiring a monetary contribution of the kind in question.
- This approach is also consistent with that taken by this Court in Hervey Bay Developments Pty Ltd v. Hervey Bay City Council (1994) 83 L.G.E.R.A. 216. In that case, the Court allowed conditions requiring contributions to the cost of external services including drainage, road and water reticulation works and the provision of security in respect of them to be imposed as conditions of rezoning approval. The Court noted:
"So far as a contribution relates to the cost of water supply, s. 6.2(2) expressly authorises it but such a provision is not unexpected in a section dealing specifically with water supply and sewerage and once again should not be taken to limit the effect of the general power in respect of conditions". (221)
- Mr Lyons Q.C. argued, although not at length, that nevertheless the appeal might be dismissed, on the basis that the decision would probably have been the same if the learned primary judge had not adopted the legal view which we have held to be erroneous. It is not necessary to say anything much about that, except that a reading of the primary judge’s careful reasons must leave one with the conviction that his Honour’s view, that the condition was beyond power, at least assisted him substantially towards the conclusion which was ultimately reached.
- We allow the appeal with costs, strike out the sentence in the order of the Planning and Environment Court dated 20 March 1998 under the heading "External Roadworks" and remit the matter to the Planning and Environment Court for further consideration of the question of an appropriate external roadworks condition, with the assistance of such further evidence, if any, as that Court permits to be adduced.