Gatton Shire Council v Mudie[1999] QCA 263

IN THE COURT OF APPEAL 99.263

SUPREME COURT OF QUEENSLAND

Brisbane

Appeal No 3071 of 1998

[Gatton SC v Mudie & Anor]

BETWEEN:

GATTON SHIRE COUNCIL

(First Respondent) Appellant

AND:

KAREN GAYE MUDIE

(Applicant) First Respondent

AND:

GAINRIVER PTY LTD  ACN 010 965 929

(Second Respondent) Second Respondent

Appeal No 3198 of 1998

[Gainriver P/L v Mudie & Anor]

BETWEEN:

GAINRIVER PTY LTD  ACN 010 965 929

(Second Respondent) Appellant

AND:

KAREN GAYE MUDIE

(Applicant) First Respondent

AND:

GATTON SHIRE COUNCIL

(First Respondent) Second Respondent

Davies JA

McPherson JA

Wilson J

Judgment delivered 16 July 1999

Joint reasons for judgment of Davies JA and Wilson J;  separate reasons of McPherson JA concurring as to orders made.

APPEALS ALLOWED. DECLARATIONS MADE BELOW SET ASIDE AND IN LIEU, MAKE THE FOLLOWING DECLARATIONS:

1. DECLARE THAT GAINRIVER PTY LTD, BY CONSTRUCTING A ROADWAY AND TWO BOULDER WALLS ON THE DEDICATED BUT UNMADE ROAD TO THE EAST OF ITS LAND WITHOUT FIRST OBTAINING THE APPROVAL OF THE GATTON SHIRE COUNCIL PURSUANT TO PAR 7.3.1(2)(a) OF THE PLANNING SCHEME FOR THE SHIRE OF GATTON, HAS CONTRAVENED PAR 7.3.1(2)(a) AND HAS THEREBY COMMITTED AN OFFENCE UNDER S 2.23(1)(a) OF THE LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990.

2. DECLARE THAT GAINRIVER PTY LTD, BY COMPLETING THE CONSTRUCTION REFERRED TO IN DECLARATION 1 WITHOUT FIRST HAVING PLANS AND SPECIFICATIONS FOR IT APPROVED BY THE GATTON SHIRE COUNCIL PURSUANT TO A SUBDIVISIONAL APPROVAL, HAS CONTRAVENED PAR 7.3.1(2)(b) OF THE PLANNING SCHEME FOR THE SHIRE OF GATTON AND HAS THEREBY COMMITTED AN OFFENCE UNDER S 2.23(1)(a) OF THE LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990.

3. DECLARE THAT THE CONSTRUCTION OF TWO BOULDER WALLS ON THE DEDICATED ROAD IN CONTRAVENTION OF PAR 7.3.1(2)(a) AND PAR 7.3.1(2)(b) CONSTITUTES A PUBLIC NUISANCE.

ORDER THAT THE MATTER BE REMITTED TO THE PLANNING AND ENVIRONMENT COURT TO CONSIDER WHETHER, IN THE LIGHT OF THESE DECLARATIONS, AN ORDER SHOULD BE MADE UNDER S 2.24(5)(b) LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990.

ORDER THAT THE RESPONDENT MUDIE PAY THE APPELLANT GATTON SHIRE COUNCIL ITS COSTS OF ITS APPEAL.

ORDER THAT THE RESPONDENT MUDIE BE GRANTED AN INDEMNITY CERTIFICATE PURSUANT TO THE APPEAL COSTS FUND ACT 1973.

CATCHWORDS: LOCAL GOVERNMENT - SUBDIVISION OF LAND - CONSENT AND APPROVAL OF COUNCILS - PRINCIPLES GOVERNING CONSENT OR APPROVAL - AS TO ROADS AND ACCESS - ROADS

Appeal against declarations made by Planning and Environment Court concerning application for subdivisional approval - new application for group title subdivision - change in access to dedicated road - what amounts to council's approval - whether works commenced before approval given - whether conditions attached to approval complied with - whether failure to provide certificate of engineer - application of planning scheme - whether reasonable mistake of fact according to s 24 Criminal Code -whether public nuisance.

PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - POWERS OF INFERIOR COURTS

Appeal against declarations made by Planning and Environment Court - whether court had jurisdiction to make the declarations - application of Local Government (Planning and Environment) Act 1990 - meaning of "to be undertaken" - whether Planning and Environment Court has accrued jurisdiction to make declarations with respect to public nuisance.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPALS - POINT AND OBJECTIONS NOT TAKEN BELOW - WHEN ALLOWED TO BE RAISED ON APPEAL - OTHER MATTERS

After the conclusion of oral argument parties were invited by the court to submit further written argument on whether an additional declaration could be made - point not raised below or on appeal.

Criminal Code s 24

Local Government (Planning and Environment) Act 1990 s 2.23(1), s 2.24(3), s 2.24(4), s 2.24(5), s 7.4(3)

Counsel:   Mr P J Lyons QC, with him Mr S M Ure, for Gatton Shire Council

Mr A Abaza (a solicitor) for Mrs Mudie

Mr J J Haydon for Gainriver Pty Ltd

Solicitors:   King and Company for Gatton Shire Council

Andrew P Abaza for Mrs Mudie

Bernays & Bernays for Gainriver Pty Ltd

Hearing Date:  11 March 1999 

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before Davies JA

McPherson JA

Wilson J

Appeal No 3071 of 1998

[Gatton SC v Mudie & Anor]

BETWEEN:

GATTON SHIRE COUNCIL

(First Respondent) Appellant

AND:

KAREN GAYE MUDIE

(Applicant) First Respondent

AND:

GAINRIVER PTY LTD  ACN 010 965 929

(Second Respondent) Second Respondent

Appeal No 3198 of 1998

[Gainriver P/L v Mudie & Anor]

BETWEEN:

GAINRIVER PTY LTD  ACN 010 965 929

(Second Respondent) Appellant

AND:

KAREN GAYE MUDIE

(Applicant) First Respondent

AND:

GATTON SHIRE COUNCIL

(First Respondent) Second Respondent

JOINT REASONS FOR JUDGMENT - DAVIES JA AND WILSON J

Judgment delivered 16 July 1999

1. These are two appeals, one by Gatton Shire Council and the other by Gainriver Pty Ltd which were, by consent, heard together, against declarations made by the Planning and Environment Court on 17 March 1998. The appeals are pursuant to s 7.4(3) of the Local Government (Planning and Environment) Act 1990 notwithstanding its repeal on 30 March 1998. It was not disputed that, judgment in this matter having been given on 17 March 1998, the right of appeal under that section continued by virtue of s 20 of the Acts Interpretation Act 1954. Section 7.4(3) confers a right of appeal on any person who "feels aggrieved by a determination of the Court on the ground of error or mistake in law on the part of the Court or that the Court had no jurisdiction to make the determination or exceeded its jurisdiction in making the determination".
2. The declarations made by the Planning and Environment Court were:

"1. Declare that Gain River [sic] Pty Ltd has committed an offence against s. 2.23(1)(a) of the Local Government (Planning and Environment) Act 1990 in that it contravened or failed to comply with conditions 11 and 13 attached to the Gatton Shire Council's approval of 21 December 1994, by constructing the access road on the dedicated road to the east of Gainriver's land.

2. Declare that:

1. On its proper construction, paragraph 4.6 of the Planning Scheme for the Shire of Gatton applies to development on a dedicated road;

2. The purported approval of the Gatton Shire Council dated 16 October 1996 is void, and of no effect, as there was no evidence put before Council to satisfy it that the construction of the access on the dedicated road should be permitted, and as the requirements of condition 16 were never satisfied.

3. Declare that, as the requirements of paragraph 7.3.1(2)(b) of the Planning Scheme were not complied with, in that no certificate from the supervising engineer was obtained, the certificate of Gatton Shire Council of 13 May 1997 is void and of no effect.

4. Declare that the two boulder walls, described in the affidavit of A. Thompson were unlawfully placed on the dedicated road by Gainriver, and are a nuisance."

The Court also made some orders one of which is referred to later.

3. It may be noted, at the outset, that these declarations bore little relationship to those sought by the respondent in her application to the Planning and Environment Court. The declarations and orders sought there were:

"1. A Declaration that the use of land being a road reserve adjoining Lot 1 on RP on RP [sic] 216283 and Lot 755 on RP 905938 further adjoining the said road reserve is a nuisance and dangerous and illegal.

2. An Order restraining the First Respondent from approving the use of the land aforesaid.

3. An Order that the First Respondent reinstate the stability and drainage of the land referred to forthwith.

4. A Declaration that the level of the road adjoining Lot 1 on RP 216283 is not the level determined by "the plans" of Kehoe Meyers and a Declaration that it is beyond the jurisdiction of the Gatton Shire Council to fix the permanent level of the said road by reference to the said purported plans under s. 513 of the Local Government Act 1993.

5. Such further or other order as to the Court may seem meet."

However no point was taken by the appellants in this Court about that difference.  It may therefore be assumed that they were not, in any way, prejudiced by that difference.

4. The arguments of each of the appellants were addressed to the declarations contained in paragraphs 1, 2(b), 3 and 4. But it was said that if those arguments succeeded the declaration made in paragraph 2(a) would have no utility and, for that reason, should not survive. It is convenient to deal with the declarations in the above order as was done, on both sides, before this Court. Before doing so, however, it is necessary to say something briefly about the circumstances in which those declarations came to be made.
5. In May 1994 Gainriver applied to the Council for subdivision into eight allotments of land abutting Flagstone Creek Road, which runs along the northern boundary of the land, and at least one other dedicated but unconstructed road ("the dedicated road") which runs along part of the eastern boundary of the land, joining Flagstone Creek Road at the north-eastern corner of the land. That land had previously been differently subdivided into eight allotments. The May 1994 application was for what Mr Lyons QC, for the Council, described as a conventional subdivision, that is, one made under the Local Government (Planning and Environment) Act 1990. It is convenient to use that term to distinguish such an application from a group title subdivision made under the Building Units and Group Titles Act 1980. The application was approved by the Council on 21 December 1994 subject to a number of conditions, two of which, conditions 11 and 13, are the subject of declaration 1.
6. They were in the following terms:

"11. The proposed internal access road shall be bitumen sealed for its length from the intersection with Flagstone Creek Road to a point 125 metres west of the eastern boundary of proposed lot 10.  Detail designs and construction of road shall include adequate drainage, sealed passing areas and appropriate erosion control and slope stability measures to the council's satisfaction.  Design shall be in accordance with Queensland street design manual."

"13. The intersection of the proposed internal road with Flagstone Creek Road shall be designed and constructed to the satisfaction of the Council and in accordance with the Council's design standards."

7. The internal access road referred to in those conditions was an easement which ran from Flagstone Creek Road along the line of an existing track on the land in order to service some otherwise internal allotments in the proposed subdivision. Its course from Flagstone Creek Road, near its intersection with the dedicated road, ran generally in a southerly and south-westerly direction but at one point up to but not across the eastern boundary of the subject land where it abutted the dedicated road on the other side of which was the property of the first respondent Mrs Mudie.
8. Three other conditions of that approval are relevant to this appeal. They are conditions 1, 5 and 16 which were in the following terms:

9. Council's preference for a group title subdivision, referred to in the last paragraph of condition 1, was taken up by Gainriver in a sketch plan forwarded by its surveyors to the Council on 9 May 1995. That plan showed a proposed group title subdivision of the land into eight lots and a common area. Such a proposed subdivision could only have been made under the Building Units and Group Titles Act.
10. That was followed, on 3 October 1996 by a formal application under that Act for a group title subdivision in accordance with a plan which differed in material respects from the plan which had been forwarded to the Council on 9 May 1995. However it had in common with that earlier plan that an access road to some of the otherwise internal allotments, which was proposed to be part of the common property under the group title, commenced, not from the Flagstone Road boundary, but from the boundary with the dedicated road near its intersection with Flagstone Creek Road and near an entrance from the dedicated road to Mrs Mudie's property.
11. In the meantime, pursuant to correspondence between Gainriver's consulting engineers and the Chief Executive Officer of the Council of 21 August, 4 September and 1 November 1995 and, apparently, conversations between the engineers and Council officers, Gainriver, in early 1996, constructed a roadway on a section of the dedicated road between its intersection with Flagstone Creek Road and the point where the access road, if it had been constructed in accordance with the plan forwarded on 9 May 1995, would have joined the dedicated road. The roadway was constructed at a level higher than the previous level of the dedicated road and at a level higher than Mrs Mudie's land thereby affecting her access on to the dedicated road and by means of it to Flagstone Creek Road. At about the same time, but without any prior discussion with the Council, Gainriver also constructed two boulder walls on that section of the dedicated road.
12. The application dated 3 October 1996 was approved by the Council, subject to conditions, on 16 October 1996. The plan of survey under this approval was sealed by the Council on 3 May 1997 and registered on 23 June 1997.
13. The conditions of this approval included modified versions of conditions 11 and 13 of the approval granted under the Local Government (Planning and Environment) Act on 21 December 1994. They are in the following terms:

14. The approval of 16 October 1996 was an approval under the Building Units and Group Titles Act of a group title subdivision under that Act, the access road forming part of the common property, not an approval under the Local Government (Planning and Environment) Act to a conventional subdivision under that Act in which the access road was to be a registered easement.
15. It follows from what we have said so far that the approval granted under the Building Units and Group Titles Act superseded that granted under the Local Government (Planning and Environment) Act. The two approvals could not stand together. It is also plain that, after the approval granted pursuant to the Building Units and Group Titles Act, the parties proceeded under it. Nothing further was, or could have been done, under the approval granted on 21 December 1994.
16. Moreover it appears that, by May 1995 when Gainriver submitted its sketch plan for a proposed group title subdivision, no doubt in response to the Council's intimation of 21 December 1994, Gainriver was proposing a group title subdivision in accordance with a group title plan in which access to the land would be from the dedicated road. This explains, although it does not justify, the construction of a roadway on that section of the dedicated road earlier referred to.
17. We turn now to the first of the declarations made by his Honour.
18. The act which his Honour held to constitute commission of an offence against s 2.23(1)(a) was, as his Honour described it, "constructing the access road on the dedicated road to the east of Gainriver's land"; that is, building up the level of and providing a trafficable surface to that section of the dedicated road already referred to. It was declared that this was an offence under that section because Gainriver had contravened or failed to comply with conditions 11 and 13 of the approval of 21 December 1994. Section 2.23(1)(a) makes it an offence to contravene or fail to comply with a provision of the planning scheme and subs (1A)(b) deems a planning scheme to include conditions attached to approvals.
19. By the time of the correspondence between Gainriver's consulting engineers and the Council's Chief Executive Officer in late 1995, and, even more so, by the time of construction of the roadway in early 1996, Gainriver appears to have already committed itself to a group title plan, a proposed form of which it had forwarded to the Council in May 1995, involving as it did access to the land by means of an access road from the dedicated road. However it may be going too far to say that, by the time the roadway was constructed, the conventional subdivisional approval had been abandoned by Gainriver.
20. Whether that is so or not, the construction of a roadway upon the dedicated road, unlawful though it may have been, was not a contravention of either condition 11 or 13 of the approval of 21 December 1994; condition 11 of the approval concerned the internal access road, and condition 13 referred to an intersection of that access road with Flagstone Creek Road. It is plain from the correspondence already referred to that neither Gainriver nor the Council thought that the former, in performing the construction of the roadway, was acting pursuant to the December 1994 approval but rather pursuant to a proposed group title subdivision which envisaged access, not from Flagstone Creek Road, but from the dedicated road. Whatever cause of action Mrs Mudie may have had it was not one for breach of conditions 11 or 13 of that approval.
21. It was submitted by Mr Lyons QC for the Council that, in any event, there could not have been a breach of conditions 11 or 13 of the 1994 approval before the plan of survey was sealed by the Council (see condition 5) and that, as no plan of survey for a conventional subdivision under the Local Government (Planning and Environment) Act was ever sealed, there could never have been a breach of conditions 11 or 13. In view of the conclusion reached in the preceding paragraph it is unnecessary to consider that submission. For the reason already given declaration 1 should not have been made.
22. Declaration 2(b) declared that the purported approval of 16 October 1996, that is the approval of the group title subdivision, was void and of no effect and declaration 3 declared that the certificate of the Council of 13 May 1997, given under s 9(7) of the Building Units and Group Titles Act (the sealing of the plan referred to in condition 5) was void and of no effect. Each of these declarations, as appears on its face, was made in respect of acts done in respect of the Planning Scheme.
23. The Planning and Environment Court is given declaratory jurisdiction by s 2.24 of the Local Government (Planning and Environment) Act to hear and determine proceedings for a declaration in respect of, relevantly, "any act, matter or thing to be undertaken in respect of the planning scheme or the use of land"[1] and "any offence defined in section 2.23(1)".[2] The question whether the declaratory jurisdiction in the first of these cases is limited by the words "to be undertaken" to acts, matters or things in respect of the planning scheme or the use of land only in the future or whether it applies in respect of acts, matters or things which have already occurred has not been determined by this Court. It was left open in Makucha v Albert Shire Council[3] and CSR Limited v Pine Rivers Shire Council.[4] But it has been decided in a number of cases in the Planning and Environment Court that the phrase "to be undertaken", upon its natural meaning, does not apply to a past act, matter or thing; that the words connote futurity.[5] In our view those decisions are correct. The declaratory power of the Planning and Environment Court under s 2.24(3)(b) is limited to declarations only in respect of acts, matters or things to be done after the time at which the order is made. As we think that that interpretation of the provision is plainly correct it is unnecessary to resort to principles of construction which may be of assistance in resolving ambiguity.[6]
24. Declarations 2(b) and 3 were plainly declarations as to acts, matters or things which had already occurred. For that reason they were not within the jurisdiction of the court under s 2.24(3)(b). That section appears to be the basis on which his Honour made those declarations. Neither purports to be a declaration in respect of an offence defined in s 2.23(1). If the facts on which his Honour relied would, if proved, have constituted offences within s 2.23(1), then declarations could have been made under s 2.24(3)(c).
25. One of the facts relied on as a reason for making declaration 2(b) was that the requirements of condition 16 were never satisfied. Although, as mentioned earlier, s 2.23(1A)(b) in effect deems contravention of a condition attached to an approval to be an offence against s 2.23(1)(a), no declaration could have been made as to an offence constituted by a contravention of condition 16. His Honour's statement in the declaration that the requirements of condition 16 were never satisfied was based on his earlier findings that, although Gainriver had submitted to the Council its further geotechnical investigation in respect of the internal road intersection with Flagstone Creek Road under the May 1994 approval, it had not done so in respect of the new intersection of that road with the dedicated road under the October 1996 approval. It is true that Gainriver did not conduct further geotechnical investigation in respect of the road intersection after the October 1996 approval but that was because, as the Council was aware, that intersection had already been constructed in accordance with plans submitted before then. That does not mean that Gainriver contravened condition 16; rather that condition 16 could have no effect and must have been included by the Council by mistake.
26. Declaration 3 stated as a reason for making it a failure to comply with par 7.3.1(2)(b) of the Planning Scheme.[7] If there was such a failure that was also an offence under s 2.23(1) in respect of which a declaration could have been made. Paragraph 7.3.1(2)(b) provides:

"In any subdivision involving any works subject to the requirements of this Section, construction of the works shall be supervised, at the subdivider's expense, by a registered civil engineer and on completion of such works the applicant shall give to the Council a certificate from such engineer to the effect that such works have been completed in accordance with the plans and specifications approved by the Council".

The works "subject to the requirements of this Section" included the internal access road, its intersection with the dedicated road and the roadway on the dedicated road up to its intersection with Flagstone Creek Road. That work was "necessary to conform to the conditions of the Council's approval of the [group title] subdivision",[8] including conditions 11 and 13. The "plans and specifications approved by the Council" referred to plans and specifications approved under a subdivisional approval. But the work at the intersection of the internal access road with the dedicated road and on the dedicated road could not have been completed in accordance with any such approved plans and specifications because, when completed, there was no relevant subdivisional approval. By completing the work at the intersection and on the dedicated road before obtaining the subdivisional approval to which that work related Gainriver put it out of its power to give any such certificate by an engineer that that work was completed in accordance with plans and specifications approved pursuant to that subdivisional approval. That was, in effect, a repudiation of the requirements of and consequently a contravention of par 7.3.1(2)(b). Subject to a defence under s 24 of the Criminal Code of Queensland, to which reference is made later, a declaration could therefore have been made in the court below in respect of an offence constituted by contravention of par 7.3.1(2)(b) of the Planning Scheme.

27. Declaration 4 was made in respect of the two boulder walls placed on the dedicated road, not for any structural purpose but apparently for aesthetic reasons. After stating correctly that Gainriver brought these boulders onto the dedicated road without permission, his Honour said that it was a nuisance to obstruct a highway or to make it dangerous or to interfere with any part of the highway. His Honour had said that there had already been damage to Mrs Mudie's property caused by a falling boulder (although it appears that this did not come from the dedicated road but from Gainriver's land) and went on to say that she was entitled to a declaration that the erection of the boulder walls was unlawful and a nuisance.
28. In dealing with his jurisdiction to make such an order his Honour said:

"Here the access track was built as an integral part of the subdivision works. There is one controversy, of which the building of the track is a part. This Court has jurisdiction to resolve all of that controversy - including the parts of it which relate to the Council's decision making process, in considering an application for approval."

29. Shortly before this his Honour had referred to Stack v Coast Securities (No 9) Pty Ltd [9] and Fencott v Muller[10] cases which determined the meaning of "matter" in ss 75 and 76 of the Commonwealth Constitution, thereby concluding that, when a Federal Court was seized of federal jurisdiction it had jurisdiction to decide the whole of the controversy before it. Relying on that principle his Honour concluded that, as the Planning and Environment Court had jurisdiction to make declarations with respect to an approval for subdivision, it could make a declaration that acts constituted a public nuisance if those acts occurred in the course of work done in purported pursuance of such an approval.
30. However in our opinion the above principle, arising as it does out of the construction of ss 75 and 76 of the Commonwealth Constitution, has no application to the jurisdiction of the Planning and Environment Court under s 2.24 of the Local Government (Planning and Environment) Act. Nor can it be inferred from s 2.24, read with s 7.4, that the Act intended that the Planning and Environment Court should have exclusive jurisdiction to make declarations with respect to public nuisances where they arose out of, as his Honour put it, an approval for a subdivision. For that reason, in our view, his Honour had no jurisdiction to make declaration 4 on the grounds that he relied on.
31. However if, as mentioned earlier, his Honour could have made a declaration in respect of an offence constituted by a contravention of par 7.3.1(2)(b) of the Planning Scheme or, as mentioned below, par 7.3.1(2)(a), and if the work which constituted contravention of either provision included construction of the boulder walls, he could also have made a declaration, on his findings of fact with respect to the boulder walls, that the construction of the boulder walls constituted a public nuisance.[11]
32. Paragraph 7.3.1(2)(a) of the Planning Scheme is in the following terms:

"In any subdivision involving works which, in the opinion of the Council's Engineer, require detailed working plans and specifications, such plans and specifications, properly prepared by a registered civil engineer, shall be submitted to the Council. The Council shall consider the plans and specifications and shall notify the applicant of approval or otherwise. The applicant shall not commence any works until the Council's approval has been given."

33. Whether construction of the boulder walls constituted failure to comply with par 7.3.1(2)(a) depends on whether that was part of the work which would have required detailed working plans and specifications to be approved by the Council. Given the instability of the slope on which the boulder walls were placed that was, in our view, probable. In the case of par 7.3.1(2)(b) it was sufficient that the boulder walls were part of the work which would have been the subject of the subdivisional approval and its conditions. Plainly they were.
34. Declaration 2(a) appears to have been made, in effect, as a step in the reasoning process towards the conclusion in declaration 2(b) that the approval of 16 October 1996 was void because there was no evidence that the construction of the access on the dedicated road should be permitted. But, as it is unnecessary for the purpose of making any of the declarations referred to in paragraph 31 and has no independent relevance, it is unnecessary to consider whether par 4.6 of the Planning Scheme (Development in the Slope Stability Investigation Area) applies to development on the dedicated road.
35. After the conclusion of oral argument in this appeal the Court invited the parties to submit further argument on the questions whether the learned primary judge could have made a declaration that the construction of the roadway on the dedicated road was an offence under the Local Government (Planning and Environment) Act 1990 because of breach of par 7.3.1(2)(a) of the Planning Scheme for the Shire of Gatton; and, if so, whether this Court should make such a declaration. All parties made further written submissions on those questions.
36. The appellants, in their further written submissions to this Court, concede that it was within the jurisdiction of the Planning and Environment Court to make a declaration that an offence had been committed under the Local Government (Planning and Environment Act) because of a breach of par 7.3.1(2)(a) of the Planning Scheme. Moreover, subject to the specific submissions referred to below, they do not contend that such a declaration could not or should not have been made. In particular they do not contend that there ever was an approval of the Council within the meaning of par 7.3.1(2)(a). Plainly there was no such approval which could only have been given after and pursuant to approval of the subdivision which occurred only on 16 October 1996.
37. However the appellants contend that, if such relief had been sought before the Planning and Environment Court, it would have been necessary for that Court to consider:

1. whether by reason of the letter from Kehoe Meyers, Consulting Engineers to the Council of 9 August 1995 and the letters from the Council to Kehoe Meyers, Consulting Engineers of 4 September 1995 and 1 November 1995 (the letters referred to earlier), and such oral evidence as might have been directed to the point, no offence had been committed by virtue of s 24 of the Criminal Code of Queensland;

2. alternatively, whether by reason of the matters referred to in (a), as a matter of discretion a declaration should not have been made.

38. A defence based on s 24 of the Criminal Code was as applicable to declaration 1 made by the Planning and Environment Court as it would be to the declaration now being considered or to one in respect of par 7.3.1(2)(b). No contention was advanced in this Court, either originally or in the further written submissions, that s 24 was a possible defence to that declaration. Nor was that submission advanced below. However, Gainriver did advance an argument below based on the 'indoor management rule', the presumptions of which his Honour said could be translated into a defence based on s 24 of the Code. His Honour rejected Gainriver's argument on the basis that Mr Schumacher, the Council's Chief Executive Officer who wrote the letter of 1 November 1995, did not have the appropriate authority, nor did he pretend to be giving authority in the name of the Council, and that, given the magnitude of the changes to the plans, Gainriver was put on notice about the need to ask Council as a whole for its approval of the changes. Those findings were not contested in this Court.
39. The failure of the appellants, before this Court, to advance s 24 as a defence to declaration 1 leads one to doubt whether it has any cogency in respect of the declaration now being considered. More importantly the findings which, in his Honour's view, answered a defence to declaration 1 based on s 24 also, in our view, answer such a defence to a declaration in respect of an offence defined in s 2.23(1) of the Local Government (Planning and Environment) Act 1990, founded on a failure to comply with par 7.3.1(2)(a) or par 7.3.1(2)(b) of the Planning Scheme. There are two reasons for this. The first is that the mistake by Gainriver, if there was one, as to whether it had the Council's approval under either of those provisions of the Planning Scheme, was one of law. It was, in the first case, as to whether approval by the Council's letter of 1 November 1995 was approval of the Council within the meaning of par 7.3.1(2)(a). In the second it was as to whether plans and specifications could be approved by the Council pursuant to par 7.3.1(2)(b) otherwise than pursuant to a subdivisional approval.[12]
40. The second reason is that, given the magnitude of the change in Gainriver's plans, including as it did a change from a conventional subdivision to a group title subdivision and a change of access from one to Flagstone Creek Road to one to the dedicated road, it was not reasonable to think that the writer of the letter of 1 November 1995 had the Council's authority to grant approval to construction on the dedicated road without there being a subdivisional approval for a group title subdivision incorporating the changed access.
41. It is true that neither before the court below nor before this Court did the respondent rely on a breach of par 7.3.1(2)(a). But once the only defence relied on by the appellants has been disposed of, given the way in which the matter proceeded below, there is no reason why that declaration should not now be made.
42. Once the court below had made declaration 1, it could have made two further orders. It could have ordered the appellant Gainriver to remove the work which it constructed on the dedicated road;[13] and as mentioned earlier, it could have specified that the failure to comply with the Planning Scheme, constituted by a failure to comply with conditions 11 and 13, constituted a public nuisance.[14] The court did not make the first of these orders although some such order had been sought: see order 3 par 3 above. Instead it ordered that all other issues between the parties be adjourned for further consideration. The respondent sought simply to uphold the declarations and orders made below. In these circumstances it is not appropriate for this Court to consider whether Gainriver should be ordered to remove the work constructed on the dedicated road. But it is appropriate to remit this matter to the Planning and Environment Court to consider that question in the light of the declarations made by this Court.
43. The declaration that placing the boulder walls on the dedicated road was a nuisance could have been made under s 2.24(5)(c) of the Local Government (Planning and Environment) Act 1990 in reliance on the failure to comply with par 7.3.1(2)(a) or the failure to comply with par 7.3.1(2)(b) of the Planning Scheme. Given the way in which this matter was argued below and in this Court we can see no reason why such a declaration should not now be made.
44. We would therefore allow the appeals, set aside the declarations made below and make, in lieu, the following declarations:

1. Declare that Gainriver Pty Ltd, by constructing a roadway and two boulder walls on the dedicated but unmade road to the east of its land without first obtaining the approval of the Gatton Shire Council pursuant to par 7.3.1(2)(a) of the Planning Scheme for the Shire of Gatton, has contravened par 7.3.1(2)(a) and has thereby committed an offence under s 2.23(1)(a) of the Local Government (Planning and Environment) Act 1990.

2. Declare that Gainriver Pty Ltd, by completing the construction referred to in declaration 1 without first having plans and specifications for it approved by the Gatton Shire Council pursuant to a subdivisional approval, has contravened par 7.3.1(2)(b) of the Planning Scheme for the Shire of Gatton and has thereby committed an offence under s 2.23(1)(a) of the Local Government (Planning and Environment) Act 1990.

3. Declare that the construction of two boulder walls on the dedicated road in contravention of par 7.3.1(2)(a) and par 7.3.1(2)(b) constitutes a public nuisance.

We would also order that this matter be remitted to the Planning and Environment Court to consider whether, in the light of these declarations, an order should be made under s 2.24(5)(b).

45. The appellants have each succeeded in these appeals. However their interests were identical and Gainriver, in effect, adopted the arguments of Gatton Shire Council, adding nothing of value. Moreover this was not an appeal which warranted separate representation by the appellants; the only effect of such representation could have been to add to the costs. Accordingly it is appropriate that the appellants have only one set of costs against the respondent Mudie and that these be awarded to Gatton Shire Council. We would therefore order that the respondent Mudie pay the appellant Gatton Shire Council its costs of its appeal.
46. The circumstances in which these appeals have succeeded on questions of law, in our view, justify the granting to the respondent Mudie of an indemnity certificate pursuant to the Appeal Costs Fund Act 1973. We would therefore grant her such a certificate.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 3071 of 1998

Brisbane

Before Davies JA

McPherson JA

Wilson J

[Gatton SC v Mudie & Anor]

BETWEEN:

GATTON SHIRE COUNCIL

(First Respondent) Appellant

AND:

KAREN GAYE MUDIE

(Applicant) First Respondent

AND:

GAINRIVER PTY LTD  ACN No 010 965 929

(Second Respondent) Second Respondent

Appeal No 3198 of 1998

[Gainriver P/L v Mudie & Anor]

BETWEEN:

GAINRIVER PTY LTD  ACN No 010 965 929

(Second Respondent) Appellant

AND:

KAREN GAYE MUDIE

(Applicant) First Respondent

AND:

GATTON SHIRE COUNCIL

(First Respondent) Second Respondent

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 16 July 1999

1. I have had the advantage of reading the joint reasons of Davies JA and Wilson J. With two qualifications to be mentioned, I agree with them. I also agree with the orders proposed by their Honours for disposing of this appeal.
2. The first of those two qualifications concerns the meaning of s 2.24(3)(b) of the Local Government (Planning and Environment) Act 1990, which is the provision that in this instance conferred on the Planning and Environment Court jurisdiction to hear and determine proceedings for a declaration in respect of any act matter or thing "to be undertaken" in respect of the planning scheme or the use of land. In my respectful opinion, it is by no means clear that this provision is incapable of applying to acts, etc that were to have been done in the past under such a scheme. On that point, the authorities in this Court are indecisive, while those in the Planning and Environment Court are far from unanimous.
3. There are, however, three reasons why it is desirable now to determine the point once and for all, and to do so in the way that is proposed by Davies JA and Wilson J in their reasons. The first is that it is plainly unsatisfactory to everyone that a question of jurisdiction like this should be left undetermined. It is an area in which certainty rather than subtlety is now called for. The second reason is that, by virtue of s 7.4(2) of the Act, the jurisdiction of the Planning and Environment Court in respect of that matter is expressed to be "exclusive". Since, to the extent that it exists, it is exclusive of this Court as the superior court of the State, it is consistent with both authority and policy that the jurisdiction of the Planing and Environment Court should not be more broadly construed than is necessary. See Mayor of London v Cox (1867) LR 2 HL 239, 259; DMW v CGW (1982) 151 CLR 491, 509-510. The third reason is that the jurisdictional point has now been settled by the enactment of s 4.1.21(1)(a) of the Integrated Planning Act 1997, and will presumably not arise again, or do so at least in the contested form in which it has been considered in the past.
4. The second of the two qualifications to be mentioned concerns the operation of s 24 of the Criminal Code in relation to par 7.3.1(2)(a) of the Planning Scheme and the proposed declaration that an offence has been committed under it. Saying that what is involved is or was a mistake of law is to my mind not necessarily an effective answer to an attempt to rely on that section of the Code. It is true that the marginal note or the heading (as it is now) to s 24 is Mistake of Fact; but the terms of the section itself refer not to a mistake of fact but to a "belief in the existence of a state of things". It was in reference to this provision of the Code, as well as to the common law on this point (which it was said that s 24 stated "with complete accuracy") that Dixon J, with whom Rich J agreed, in Thomas v The King (1937) 59 CLR 279, 306, observed:

"But, in any case, in the distinction between mistakes of fact and law, a mistake as to a compound event consisting of law and fact is in general one of fact and not a mistake of law."

See also R v Gould [1968] 2 QB 65, 73-75; and Griffin v Marsh (1994) 34 NSWLR 104, 117-119.

5. What, however, is required before s 24 becomes relevant at all is at least some evidence of a belief that is both "honest" and "reasonable". In reality, the word "honest" in this context is superfluous, since it is impossible to hold a dishonest belief in any state of things. Practically speaking, therefore, the word can mean no more than genuine as distinct from purported or pretended. Here, whatever genuineness there might in fact have been in relation to the relevant belief in the present case, I agree with Davies JA and Wilson J that it was not one that was or is capable of being regarded as "reasonable" within the meaning of s 24 of the Code. As their Honours have observed in their reasons, no one in the position of the engineers or of the appellant could reasonably have supposed that the writer of the letter of 1 November 1995 had the authority of the Council to approve construction on an existing dedicated road without first having approval for a group title subdivision incorporating the proposal for the change in access to that road. Any belief (if it genuinely existed) in such a state of things would not be reasonable.
6. The relevant jurisdiction therefore existed and exists to make the declarations formulated in the reasons of Davies JA and Wilson J. I agree that the appeal should be allowed to the extent and in the terms of the declarations proposed in those reasons. As to costs, I agree with the orders proposed by Davies JA and Wilson J.