Woolworths Ltd v Maryborough City Council
[2005] QCA 62
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- Unreported Judgment
- Appeal Determined (QCA)
- Woolworths Ltd v Maryborough City Council[2005] QCA 62
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Woolworths Ltd v Maryborough City Council[2005] QCA 62
Reported at [2005] 2 Qd R 203
Woolworths Ltd v Maryborough City Council[2005] QCA 62
Reported at [2005] 2 Qd R 203
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | P & E Appeal No 1480 of 2004 |
Court of Appeal | |
PROCEEDING: | Miscellaneous Application - Civil |
ORIGINATING COURT: | |
DELIVERED ON: | 11 March 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 February 2005 |
JUDGES: | Williams and Keane JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | 1.Application dismissed 2.Applicant to pay the first respondent's costs of the application to be assessed 3.No order in relation to the second respondent's costs of the application |
CATCHWORDS: | ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - SUPREME COURT - OTHER MATTERS - first respondent challenged approval for material change of use of premises given to applicant by second respondent in Planning and Environment Court - first respondent successful in Planning and Environment Court - applicant has lodged application for leave to appeal with Court of Appeal - applicant seeks order under s 4.1.59(2) Integrated Planning Act 1997 (Qld) to allow continued selling of goods pursuant to approval for material change of use - where applicant had sold goods contrary to zoning prior to granting of approval for material change of use - whether the Court has the jurisdiction to make an order under s 4.1.59(2) when an application for leave to appeal has been filed but not heard - whether the Court has the power to grant the order where an applicant seeks to "continue", rather than "start" a development - whether in its discretion the Court should grant the order sought when the parties commenced trading without an approval with their eyes open to the risks Integrated Planning Act 1997 (Qld), s 4.1.56, s 4.1.59, s 4.3.1 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, cited Beecham Group Plc v Colgate-Palmolive Pty Ltd [2004] FCA 1335; (2004) 64 IPR 45, cited Bell v Bay-Jespersen [2004] QCA 68; [2004] 2 Qd R 235, applied Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543, cited Optus Mobile Ltd v Canada Bay City Council [2004] NSWCA 446; CA No 40977 of 2004, 6 December 2004, applied Stone v Copperform Pty Ltd [2004] QCA 7; [2002] 1 Qd R 106, applied |
COUNSEL: | C L Hughes SC, with M Williamson, for the applicant J D Houston for the first respondent R S Litster for the second respondent |
SOLICITORS: | Deacons for the applicant Mallesons Stephen Jaques for the first respondent Corser Sheldon & Gordon (Maryborough) for the second respondent |
[1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and I agree with all that he has said therein. The orders should be as proposed by Keane JA.
[2] KEANE JA: The applicant, Rokay Pty Ltd, is the owner of premises at Ferry Street Maryborough ("the site") which it has leased to The Warehouse Group Limited ("the Warehouse Group") for the purpose of a retail outlet. The application now before this Court arises out of a decision of the Planning and Environment Court delivered on 17 December 2004. By that decision the first respondent, Woolworths Ltd, succeeded in its appeal against the decision of the second respondent, the Maryborough City Council, to approve a material change of use of the site whereby the sale of food and groceries was permitted. The applicant has applied for leave to appeal against the decision of the Planning and Environment Court. That application for leave to appeal has not yet been determined. It has been listed for hearing on 1 April 2005.
[3] The applicant now seeks from this Court an order under s 4.1.59(2) of the Integrated Planning Act 1997 (Qld) ("the IPA") allowing the sale of food and groceries at the site to continue before the appeal is dealt with.
[4] Section 4.1.59 of IPA provides:
"4.1.59 Lodging appeal stops certain actions
(1)If a decision on an appeal under division 8 (other than an appeal under section 4.1.30) is appealed under this division, the development must not be started until the appeal under this division is decided or withdrawn.
(2)Despite subsection (1), if the Court of Appeal is satisfied the outcome of the appeal before it would not be affected if the development or part of the development is started before the appeal before it is decided, the Court of Appeal may allow the development or part of the development to start before the appeal before it is decided."
A preliminary difficulty
[5] In my view, the applicant is confronted, at the threshold, by the difficulty that, since leave to appeal has not yet been granted by this Court, there is no appeal on foot so that the decision of the Planning and Environment Court is not one which can be said to be "appealed" under the relevant division of the IPA. Accordingly, this Court has no power to allow "the development or part of the development to start before the appeal before it is decided".
[6] An appeal to this Court under s 4.1.56 of the IPA is available only on limited grounds, and may be brought "only with the leave of the Court of Appeal or a judge of Appeal".[1] It is well established, albeit in other statutory contexts, that where an appeal lies only by leave, there is no appeal pending unless and until leave is granted.[2]
[7] There is nothing in the language of s 4.1.59 which would suggest a different conclusion in this context. Rather, it seems to me that the power conferred on this Court by s 4.1.59(2) is expressly predicated upon the pendency of an "appeal before it". The reference to "appeal" occurs in a congeries of sections which explicitly treat appeals and applications for leave to appeal as distinct proceedings and the grant of leave as a necessary precondition of an appeal. The provisions of s 4.1.56, s 4.1.57 and s 4.1.58 of the IPA clearly express the intention of the legislature that this Court's role in relation to matters arising under the IPA is a limited one.
[8] It is to be noted that s 4.1.59(1) operates to impose an automatic stay upon the commencement of development when a decision is appealed. The requirement for the grant of leave to appeal affords a measure of protection to a would-be developer who has been successful in the Planning and Environment Court. The automatic stay, imposed by s 4.1.59(1), on the enjoyment by a developer of the fruits of success before the Planning and Environment Court cannot, on the view I take, operate unless this Court has granted leave to appeal. In this way, a successful developer is protected from the disruption which would ensue if there was no requirement for scrutiny by the Court to ensure that the appeal was viable in terms of s 4.1.56 of the IPA.
[9] Further in this regard, it is to be noted that the power conferred by s 4.1.59(2) is a power to grant relief against the otherwise automatic stay upon development imposed by s 4.1.59(1). The applicant's argument would treat s 4.1.59(2) as vesting a power in the Court to allow development to proceed even where the would-be developer has been unsuccessful before the Planning and Environment Court. The applicant then urges an argument of inconvenience, viz, that if the power conferred by s 4.1.59(2) is available only when leave has been granted, there is an inconvenient gap in the Court's power to control development. This argument, in my respectful view, fails to recognize that, by s 4.1.59(1), the legislature has imposed a restriction on development against a would-be developer who has been successful in the Planning and Environment Court. The requirement of a grant of leave to appeal as a precondition of the power conferred by s 4.1.59(2) does not evidence a lacuna in the legal control of development because prima facie legal control has been imposed by the legislature; and the legislative choice has been to restrain the commencement of development upon the commencement of an appeal but not before.
[10] In summary, there can be no doubt that there must be a grant of leave to appeal in order to enliven the power conferred on the Court by s 4.1.59(2) of the IPA, just as there must be a grant of leave to appeal to have triggered the operation of s 4.1.59(1) against which the Court has power to grant relief.
[11] Accordingly, I consider that the present application must fail "in limine". While that conclusion is sufficient to dispose of the application, it is desirable, having regard to the arguments which were put to the Court by the parties, to make some further observations as to the scope of the Court's powers under s 4.1.59 of the IPA.
The development has started
[12] A difficulty in the application of s 4.1.59(2) to the present circumstances is that the "development" in question has been carried on for some time. To appreciate the nature of this difficulty, some further reference to the facts is necessary.
[13] On 24 May 2000, the second respondent, the Maryborough City Council, issued to the then proprietor of the site a development permit for a material change of use for the purpose of "Showroom, as depicted on Plan No 99-201 (Proposed Roadway & Tenancy Layout)" subject to conditions ("the 2000 Development Approval"). The 2000 Development Approval was given under the second respondent's now superseded 1990 Planning Scheme, under which the definition of "showroom" specifically excluded premises which offered for sale food and groceries (other than fresh fruit and vegetables). By letter dated 16 December 2002, the second respondent wrote to representatives of the applicant advising that the sale of food and groceries was a use "consistent with the definition of 'shop' in the City Plan and not in accordance with the development permit".
[14] On 16 May 2003, the applicant lodged an application for "material change of use of small area to 'shop'". The second respondent replied to this application, advising the applicant that "completion of the application process must be achieved prior to the commencement of use of a part of the approved showroom use for the purpose of 'Shop'".
[15] Notwithstanding these indications of the second respondent's attitude, the Warehouse Group commenced trading on or about 12 June 2003 including the sale of food and groceries. It has continued to do so.
[16] On 10 December 2003, the second respondent issued to the applicant a decision notice approving a material change of use for the site, subject to conditions; and on 25 March 2004, after negotiations between the second respondent and the applicant, the second respondent issued a negotiated decision notice.
[17] On 23 April 2004, the first respondent appealed against the Council's decision and sought that the negotiated decision notice be set aside. The first respondent's appeal was heard in the Planning and Environment Court on 15 - 18 November 2004, and on 17 December 2004, that court allowed the appeal by the first respondent. On 24 December 2004, the applicant filed an application seeking leave to appeal against the decision of the Planning and Environment Court; and on 9 February 2005, the applicant filed the present application seeking an order to permit the Warehouse Group to continue the unlawful sale of food and groceries, pending the outcome of the application for leave to appeal.
[18] Under s 4.3.1 of the IPA, it is an offence to start assessable development without a development planning permit. It is common ground that the sale of food and groceries is assessable development. There is no extant development approval for the sale of food and groceries from the site. Thus the effect of the application is to obtain the approval of this Court to continue a use commenced and, after 17 December 2004, continued, unlawfully. That would seem to be prohibited by s 4.3.3 or s 4.3.5 of the IPA which, as a matter of language, are directed to ongoing development as distinct from the starting of a development. It is to be noted that while s 4.3.1 of the IPA prohibits starting a development, s 4.3.3 and s 4.3.5 proscribe the contravention of a development approval or the use of premises if the use is not a lawful use. Further, it is to be noted that s 4.1.59(2) affords no power to the Court to grant relief against the operation of s 4.3.3 or s 4.3.5 of the IPA.
[19] That the legislature has, in s 4.3.3 and s 4.3.5 of the IPA, used language apt to proscribe the continuing sale of food and groceries from the site at the present time as distinct from a proscription upon "starting" development, tends to suggest in my view that where the word "start" is used in the IPA in connection with development it is used in its ordinary sense of "commence" rather than as also encompassing "continue". Mr Hughes SC, who appeared with Mr Williamson for the applicant, pointed out that the heading to s 4.3.1 is "Carrying out assessable development without permit". He argued that this suggests that the legislature was treating "carrying out" development as the equivalent of "starting development" and vice versa. It may be accepted that starting a development is part of "carrying out" the development, but the converse is not true. The more comprehensive language of the prohibitions in s 4.3.3 and s 4.3.5 is not repeated in s 4.1.59. More importantly, as I have noted, a power to relieve an applicant from those prohibitions is not to be found in s 4.1.59(2). A very clear indication of a legislative intention would be required to empower a court to render lawful that which has otherwise been declared to be unlawful by the legislature. In my view, this legislation contains no such indication.
[20] In this regard, the text of s 4.1.59(2), which refers to this Court allowing a development or part of a development "to start before the appeal before it is decided" expressly seems to contemplate a situation where the approval of the Court is sought before the commencement of what would otherwise be unlawful conduct occurs. There is no apparent reason why the Court should seek to go beyond the express words of the conferral of power on it to expand a jurisdiction to allow that which would otherwise be unlawful. There is nothing in the text of s 4.1.59 inviting the Court to relax the ordinary meaning of the word "start" so that it includes "continue"; and the Explanatory Notes to the Integrated Planning Bill tend to confirm that this was deliberate on the part of the legislature.
[21] The Explanatory Notes state that cl 4.1.59 "mirrors clause 4.1.47 in its effect". When one turns to the Explanatory Notes in relation to cl 4.1.47 the following appears:
"Clause 4.1.47 in part is derived from the current Act, but has been modified. Once an appeal is lodged, development must not start until after the appeal is decided or withdrawn.
However, it is recognised that this could be unnecessarily restrictive in some cases, such as an appeal about a specific permit condition that does not involve submitters or other co-respondents. The court may allow the development (or part of the development) to proceed before the appeal is decided but only if the court considers the outcome of the appeal would not be affected.
The capacity to allow development or an aspect of development to proceed recognises that a development approval under IDAS may cover a range of development, some of which is not at issue in the appeal. It also recognises that IDAS encourages the inclusion in development approvals of management conditions that may previously have been established through other statutory mechanisms such as licenses.
For example, if an appeal about a proposed shopping centre development concerned aspects of operational works associated with access or parking, the court may allow building work for the shopping centre to proceed if it does not affect the outcome of the appeal about the operational works. Also, if an appeal concerned a condition about the ongoing management or use of a premises after development had been completed (such as hours of operation), the court may decide that the development could proceed because the building of the structure itself is unrelated to the substantive issues of the appeal before the court." (emphasis added)
[22] This passage suggests that the situation presently before the Court is radically different from those which the legislature had in contemplation when s 4.1.47 and s 4.1.59 of the IPA were enacted. However that may be, it is clear that there is nothing in the Explanatory Notes which suggest that either s 4.1.47 or s 4.1.59 of the IPA was intended to facilitate the continued pursuit of conduct rendered unlawful by other provisions of the IPA.
[23] Further, I have already commented upon the collocation of s 4.1.59(2) with s 4.1.59(1), and expressed the view that the power conferred on the Court by s 4.1.59(2) is limited to lifting the statutory stay which otherwise applies, by virtue of s 4.1.59(1), to prohibit the commencement of development after the commencement of an appeal. This view of the nature of s 4.1.59(2) is confirmed by the Explanatory Notes, in that s 4.1.59(2) was not intended by the legislature as a free-standing charter under which a disappointed developer may seek authority from this Court to do that which is otherwise unlawful under the IPA.
[24] Finally in relation to the scope of the power conferred on this Court by s 4.1.59(2), it may be that, when the provision conditions the exercise by the Court of the power conferred thereby by requiring that the Court be satisfied that "the outcome of the appeal before it would not be affected if the development or part of the development is started before the appeal before it is decided", the provision is concerned with the possibility that the outcome of the appeal may be superseded by the commencement of the development. It seems to me that if the outcome of the appeal is such that the development which has occurred under the Court's approval is not authorized by the scheme of rights and duties reflected in the outcome of the appeal, then the outcome of the appeal will have been affected in this sense. If this approach is correct, then the power conferred by s 4.1.59(2) would be limited to uncontroversial aspects of the proposed development, and would not be available to authorize the very development which is in controversy in the appeal. This approach seems to me to draw support from the passage from the Explanatory Notes highlighted above. This having been said, I acknowledge that this point of view was not argued by either of the respondents, and so I refrain from expressing any conclusion on the point.
Discretionary considerations
[25] For the foregoing reasons, it is not necessary to reach a concluded view as to whether the balance of convenience could be said to favour the exercise of the power conferred on the Court by s 4.1.59(2); but I should say that the circumstance that the applicant permitted the commencement of unlawful trading with "its eyes wide open" affords, in my view, a compelling answer to the applicant's attempt to tip the balance of convenience in its favour by pointing to the prejudice which might enure to the applicant or third parties should sales of food and groceries not continue.
[26] So far as the applicant is concerned, an analogous situation arose in Optus Mobile Ltd v Canada Bay City Council.[3] There the applicant (Optus) had built and was operating a telecommunications tower, despite knowing the land on which it was built was to be listed as a potential heritage item (which would affect the legality of the construction), and that the respondent council had instituted proceedings challenging its legality in the Land and Environment Court ("LEC"). The Council was successful in the LEC, which ordered that Optus be restrained from maintaining the telecommunications tower. Optus appealed from the LEC decision and sought a stay, pending appeal, of the order restraining use of the tower. Given that the erection of the tower was found in the LEC to have been illegal, an important consideration in the stay application was:
"the fact that it proceeded with the erection of the facility well knowing that there was determined opposition to it from the opponent, and indeed that it began the erection after the commencement of the proceedings in the Land and Environment Court. The claimant took the risk that the erection of the facility would be found to be illegal. The risk having come home, it is not in a strong position in saying that it should be allowed to take the benefit of continued transmission from the facility pending an appeal."[4]
[27] Insofar as the third party prejudice invoked by the applicant to tip the balance of convenience in its favour relates to possible prejudice to employees or associates of the applicant or the Warehouse Group, the fact that these entities commenced trading with "their eyes wide open" would deprive this prejudice of much of its force.[5]
Conclusion
[28] I would refuse the application. I would make the following orders:
(a) that the application be dismissed;
(b) that the applicant pay the first respondent's costs of the application to be assessed; and
(c) that there be no order in relation to the second respondent's costs of the application.
[29] DOUGLAS J: I also agree with the reasons for judgment of Keane JA and with the orders proposed by him.
Footnotes
[1]IPA s 4.1.56(1) and (2).
[2]See Stone v Copperform Pty Ltd [2002] 1 Qd R 106 at 107; Bell v Bay-Jespersen [2004] 2 Qd R 235 at 239 - 240.
[3][2004] NSWCA 446; CA No 40977 of 2004, 6 December 2004.
[4]Optus Mobile Ltd v Canada Bay City Council [2004] NSWCA 446; CA No 40977 of 2004, 6 December 2004 at [15].
[5]See generally Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 esp at 626; Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543 at 554; Beecham Group Plc v Colgate-Palmolive Pty Ltd (2004) 64 IPR 45 at 54.