Sparke v Noosa Shire Council[1999] QCA 361

COURT OF APPEAL

McMURDO P

PINCUS JA

THOMAS JA

Appeal No 10435 of 1998

CHRISTOPHER RAYMOND SPARKE and

MARIKA MAGDOLINE SPARKE Appellants

and

NOOSA SHIRE COUNCIL Respondent

BRISBANE 

DATE 27/08/99

JUDGMENT

PINCUS JA:  This is an appeal from a decision of the Planning and Environment Court which depends, it is said, on a point of construction of the Local Government (Planning and Environment Act) 1990 (the 1990 Act).

The appeal concerns land in the Noosa Shire the appellants' interest in which, as is common ground, was "injuriously affected" within the meaning of s. 3.5(1) of the 1990 Act by the circumstance that there came into force on 5 September 1997 a new strategic plan. This had the effect that whereas, prior to the new strategic plan, the appellants would have expected to be able to rezone the property in which they were interested so that a retirement village could be built on it, that prospect disappeared with the new strategic plan.

A claim for compensation under s. 3.5 of the 1990 Act was lodged on 23 March 1998 and rejected on 24 April 1998. In the meantime, there had come into force provisions of the Integrated Planning Act 1997 and in particular s. 6.2.1, which repealed the 1990 Act; but under s. 6.1.27, since the application for compensation had not been decided before the commencement of that section, the application had to be decided as if the 1990 Act had not been repealed. Under the Integrated Planning Act s. 4.1.34, a right of appeal to the Planning and Environment Court was given to any person dissatisfied with a decision on claims for compensation under certain provisions of that Act. There appears to be nothing in the 1997 Act which gives the Planning and Environment Court jurisdiction to hear an appeal of the present kind, but it is common ground that the relevant jurisdiction was preserved by section 20 of the Acts Interpretation Act 1954.

It is also common ground that there is a prima facie right to compensation under s. 3.5(1) of the 1990 Act, which on its face gives these appellants an entitlement to that. The case turns on the proper construction of s. 3.5(4)(d) and s. 3.5(5) of the 1990 Act which provide as follows:

 "(4) Compensation is not payable -

  ...

  (d) subject to subsection (2), where an interest in premises is affected by a planning scheme which by its operation prohibits or restricts the use of land or the erection or use of a building or other structure thereon for a particular purpose, unless the applicant establishes that the applicant had a legal right immediately before the provision in question of the planning scheme came into force to use the land or erect or use a building or other structure thereon for the particular purpose which is so prohibited or restricted;

  ...

 (5) For the purposes of subsection (4)(d), it is not to be taken that an applicant did not have the legal right referred to in that subsection by reason only that the applicant's right depended upon an exercise of discretion by the local government in the applicant's favour if the applicant shows that it is reasonable to expect that the exercise of discretion would have been in the applicant's favour had it been sought immediately before the relevant provision of the planning scheme came into force.

  ..."

The appellants' contention is that they had a "legal right" within the meaning of the former provision. Although putting the land to the desired use depended on a rezoning, their contention is that the notion of a "legal right" is sufficiently expanded by subs. 5 of s. 3.5 to achieve that result. The respondent council's argument depends on the fact that the respondent's power in respect of such a rezoning as was contemplated, although expressed in the 1990 Act to be a power to approve, does not have the effect of bringing the rezoning into existence. Under s. 4.5(1), on approval of a rezoning by the respondent, it had to apply to the chief executive for approval by the Governor-in-Council of the proposed amendment; see also s. 4.5(6) and (7).

In the result, then, the respondent says there were two approvals necessary, each of them discretionary. For that reason, on the respondent's argument, the case does not fall within subs. 5 of s. 3.5, the second provision quoted above. The respondent says the appellants did not have the legal right referred to in subs. 4(d) and their not having it was not by reason only that that right depended on the exercise of a discretion by the respondent. It also depended upon the exercise of a discretion by the Governor-in-Council.

The appellants' contention requires subs. 5 to be read down in a way which appears to me to distort its meaning. It is argued for the appellants that subs. 5 means that the only circumstance about which the Court must be satisfied to enliven its operation is that a favourable exercise of discretion by the local government would have been forthcoming. That is simply not what subs. 5 says. Cancelling out the double negative at the beginning of the provision, its general intention appears to be, to put it simply, that there must be taken to be a legal right, for the purposes of para 4(d), in cases where the only reason for saying otherwise is that the right depends upon an exercise of discretion by the local government, if the exercise of discretion by the local government could be expected to have been favourable.

But here one cannot postulate that the only reason for saying that there is no legal right is the existence of a discretion in the local government. Another reason, equally potent, is the existence of a discretion vested in the Governor-in-Council. I understand the appellants' counsel to say that it is unlikely that the legislature intended to exclude from the benefit of the compensation provisions claimants in the position of the appellants and it is manifestly unjust to do so. But the literal interpretation of the relevant provisions does not leave them without practical effect and the language is, in my view, quite clear.

I am in agreement with the views expressed by the learned primary Judge as to the interpretation of these provisions and would dismiss the appeal with costs.

THE PRESIDENT:  I agree.

THOMAS JA:  I agree.

THE PRESIDENT:  The order is the appeal is dismissed with costs.