Hervey Bay City Council v BGM Projects Pty Ltd
[2007] QCA 298
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- Unreported Judgment
- Appeal Determined (QCA)
- Hervey Bay City Council v BGM Projects Pty Ltd[2007] QCA 298
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Hervey Bay City Council v BGM Projects Pty Ltd[2007] QCA 298
Reported at [2009] 1 Qd R 130
Hervey Bay City Council v BGM Projects Pty Ltd[2007] QCA 298
Reported at [2009] 1 Qd R 130
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | P & E Appeal No 4694 of 2005 |
Court of Appeal | |
PROCEEDING: | Application for leave Integrated Planning Act |
ORIGINATING COURT: | |
DELIVERED ON: | 14 September 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 May 2007 |
JUDGES: | McMurdo P, Fryberg J and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1.Application for leave to appeal granted 2.Appeal allowed 3.Set aside the declaration of the Planning and Environment Court made herein on 13 October 2006 4.Remit the proceedings to that court to hear and determine according to law 5.Order that the respondent pay the applicant’s costs of the application to be assessed |
CATCHWORDS: | Environment and planning – Planning – Legislative power of Planning and Environment Court in development application appeal to consider new laws and policies when appeal is equivalent of new hearing Environment and planning – Planning – Legislative power of council to consider planning scheme policies about infrastructure BGM Projects Pty Ltd v Hervey Bay City Council [2006] QPEC 108, cited Behrens v Caboolture Shire Council (1979) 39 LGRA 139, cited Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, cited Acts Interpretation Act 1954 (Qld) s 14B Local Government (Planning & Environment) Act 1990 (Qld) s 5.1 Integrated Planning Act 1997 (Qld) s 2.1.23, s 2.1.16, s 2.1.19, s 2.1.23, s 3.1.7, s 3.5.3, s 3.5.6, s 3.5.11, s 3.5.30, s 4.1.52, s 4.1.56, s 4.1.57, s 6.1.14, s 6.1.16, s 6.1.19, s 6.1.20, s 6.1.28, s 6.1.29, s 6.1.30, s 6.1.31 |
COUNSEL: | Applicant: D R Gore QC Respondent: M Hinson QC |
SOLICITORS: | Applicant: Connor O'Meara Respondent: Deacons Lawyers |
[1] McMURDO P: BGM Projects Pty Ltd owns three parcels of land at Burrum Heads, a pleasant waterfront town on Queensland's picturesque Fraser coast, locally governed by the Hervey Bay City Council. BGM Projects made a reconfiguration of lot application to the Council to subdivide its three parcels of land into 203 lots. The Council approved the reconfiguration on a number of conditions. Condition 65 of the approval was that BGM Projects make:
"Payment of a contribution towards Transport Infrastructure (including pedestrian and cycleway) … to Council in accordance with Planning Scheme Policy 11 or the Policy current at the time of payment."
[2] BGM Projects appealed under s 4.1.52 Integrated Planning Act 1997 (Qld) ("the Act") to the Planning & Environment Court against part of the Council's decision, namely the imposition on the approval of condition 65. It sought orders that its appeal be allowed and that condition 65 be deleted because, first, it was not relevant or reasonably required in respect of the proposal to which the application relates[1] and, second, the Council's transitional planning scheme policy 11, which permitted approval of an application with conditions as to payment of contributions towards infrastructure, commenced after the start of the decision stage for the application so that the court could not have regard or give weight to it.
[3] At the request of both parties, the Planning and Environment Court ordered that the second of those issues be heard and determined as a preliminary legal point. The issue was argued before the court on 17 July 2006. On 13 October 2006 the court gave the following order:
"It is declared that, in this appeal, the Court ought not have regard to or give weight to the [Council's] Transitional Planning Scheme Policy 11 – Sewerage, Water Supply and Transport Infrastructure Charges Policy."
[4] The Council applies for leave to appeal to this Court under s 4.1.56 and s 4.1.57 of the Act from that order, contending that the primary judge made an error or mistake of law justifying the grant of leave to appeal. The parties and the Court agreed that the merits of the proposed grounds of appeal could be canvassed in the application for leave to appeal.
[5] The appeal in the Planning and Environment Court on the first issue is presently awaiting hearing or other finalisation pending this Court's decision.
[6] Were leave to appeal granted, the central issues in the appeal would be, first, whether the inter-relationship between s 3.5.6(2) and s 6.1.31 of the Act allowed the Council under its planning scheme policy 11 to approve the application subject to condition 65 and, second, whether the primary judge's order and declaration is inconsistent with the terms of s 4.1.52 of the Act. The parties informed us that the first issue was of relevance beyond the immediate interests of the present parties to a number of other Councils and applicants.
The relevant provisions of the Act
[7] The purpose of the Act is to seek to achieve ecological sustainability by coordinating and integrating planning at the local, regional and State levels; managing the process by which development occurs; and managing the effects of development on the environment.[2] The term "ecological sustainability" is defined as a balance that integrates protection of ecological processes and natural systems at local, regional, State and wider levels and economic development and maintenance of the cultural, economic, physical and social wellbeing of people and communities.[3] Chapter 1 of the Act, "Preliminary", deals with matters including the purpose of the Act, interpretation issues including some definitions, the protection of existing uses and rights and the application of the Act. Chapter 2 of the Act, "Planning", is divided into six parts, none of which are of direct relevance to this case.
[8] Chapter 3 of the Act, "Integrated development assessment system (IDAS)", is divided into eight parts: Preliminary; Application stage; Information and referral stage; Notification stage; Decision stage; Ministerial IDAS powers; Plans of subdivision; and Applying IDAS to mobile and temporary environmentally relevant activities. Part 5 of ch 3, Decision stage of development applications is of particular relevance. It contains six divisions: div 1, Preliminary; div 2, Assessment process; div 3, Decision; div 4, Representations about conditions and other matters; div 5, Approvals; and div 6, Conditions. Section 3.5.3 and s 3.5.6 are in div 2 of pt 5 of ch 3 (Assessment process) and relevantly provide:
"3.5.3 References in div 2 to codes, planning instruments, laws or policies
In this division (other than section 3.5.6), a reference to a code, planning instrument, law or policy is a reference to a code, planning instrument, law or policy in effect when the application was made.
…
3.5.6 Assessment manager may give weight to later codes, planning instruments, laws and policies
…
(2) In assessing the application, the assessment manager[4] may give the weight it is satisfied is appropriate to a code, planning instrument, law or policy that came into effect after the application was made, but –
(a)before the day the decision stage for the application started;
.."
[9] Section 3.5.11 of the Act is in div 3 of pt 5 of ch 3 ("Decision") and relevantly provides:
"3.5.11 Decision generally
(1)In deciding the application the assessment manager must:
(a)approve all or part of the application …;
(b)approve all or part of the application subject to conditions decided by the assessment manager …; or
(c)refuse the application.
(2)The assessment manager's decision must be based on the `assessments made under division 2.[5]
… ."
[10] Chapter 4 of the Act is headed "Appeals, offences and enforcement". Part 1 deals with the Planning and Environment Court. Section 4.1.52 relevantly provides:
"4.1.52 Appeal by way of hearing anew
(1)An appeal is by way of hearing anew.
(2)However, if the appellant is the applicant … for a development application, the court –
(a)must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate;
…"
[11] Chapter 5 of the Act is headed "Miscellaneous" and amongst other things deals with infrastructure, including trunk infrastructure and infrastructure planning and funding. It is common ground between the parties that ch 5 has no application to the present case.[6]
[12] Chapter 6 of the Act is headed "Transitional provisions". A transitional planning scheme[7] (as amended under the Act) is for most purposes taken to be an IPA planning scheme[8] under the Act until the transitional planning scheme is replaced by or converted to an IPA planning scheme. Division 4 of pt 1 deals with Planning scheme policies and contemplates and provides for transitional planning scheme policies (s 6.1.14) and their amendment (s 6.1.16 and s 6.1.19). Division 8 of pt 1 deals with "Applications made or development carried out after the commencement of this division" and contains s 6.1.28-s 6.1.39. All applications for assessable development under a transitional planning scheme must be processed under the Act: s 6.1.28(1). Section 6.1.29 is headed "Assessing applications …" and relevantly provides:
"(1)This section applies only for the part of the assessing aspects of development applications to which a transitional planning scheme … applies.
(2)Sections 3.5.4 and 3.5.5 do not apply for assessing the application.
(3)Instead, the following matters, to the extent the matters are relevant to the application, apply for assessing the application –
…
(d)any planning scheme policy made after the commencement of this section;
… ."
[13] Section 6.1.30 is headed "Deciding applications …" and like s 6.1.29 deals with applications under transitional planning schemes. Sub-section 6.1.30(2) makes inapplicable s 3.5.13 (Decision if application requires code assessment) and s 3.5.14 (Decision if application requires impact assessment). Instead, a development application that before the commencement of the section would have required an application to be made under, relevantly here, s 5.1(1) of the Local Government (Planning & Environment) Act 1990 (Qld) ("the repealed Act"), must be decided under, relevantly here, s 5.1(6) of the repealed Act.[9] That sub-section is in like terms to s 3.5.11(1) of the Act and required the local government in deciding an application to either approve it, approve it subject to conditions or to refuse it.
[14] Section 6.1.31 also deals with transitional planning schemes and relevantly provides:
"6.1.31 Conditions about infrastructure for applications
(1) Subsection (2) applies if –
(a)a local government is deciding a development application under a transitional planning scheme … and
(b)the local government has –
(i)a local planning policy about infrastructure or a planning scheme policy about infrastructure; or
…
(2)For deciding the aspect of the application relating to the … planning scheme policy … –
(a)chapter 5, part 1 does not apply; and
(b)section 3.5.32(1)(b) does not apply; and
(c)the local government may impose a condition on the development approval requiring … a contribution towards the cost of supplying infrastructure (including parks) under a policy or provision mentioned in subsection (1)(b).
… ."
The construction of s 6.1.31
[15] It was common ground between the parties that the transitional arrangements provided for in ch 6 of the Act applied to the Council's planning scheme, that under s 6.1.19 it was able to prepare a planning scheme policy about infrastructure, that planning scheme policy 11 was such a policy and that s 6.1.31 in its terms authorised the Council in a general sense to impose a condition on a development approval requiring a contribution towards the cost of supplying infrastructure. Despite the concerns raised by Fryberg J as to the validity of these assumptions in paras [40]-[49] of his reasons, I am prepared to decide this matter accepting the parties' concessions. Fryberg J's concerns were not raised in written or oral argument before this Court and I express no view on them.
[16] Planning scheme policy 11 did not commence "before the day the decision stage for the application started"[10] although it was in force by the time of the Council's decision to approve the application subject to condition 65. It is not of any moment to the present argument as to whether the Council's decision was made under s 3.5.11(1)(b) of the Act or s 5.1(6)(b) of the repealed Act.[11] The dispute between the parties before this Court concerns whether s 6.1.31, in the light of s 3.5.3 and s 3.5.6, authorised the Council under planning scheme policy 11 to impose condition 65 on the approval of BGM Projects' development application.
[17] The primary judge effectively rejected the Council's contention that s 6.1.31 could sit comfortably with s 3.5.6 if the distinction between the assessment process under div 2 pt 5 of ch 3 of the Act and the decision process under div 3 of that part were maintained. Instead, the judge concluded that s 3.5.6(2) had the effect that the Council could not rely on planning scheme policy 11 to impose condition 65, despite s 6.1.31.
[18] The construction of s 6.1.31, in the light of s 3.5.6, is not straight forward and, as the primary judge's reasons demonstrate, there are persuasive rational competing arguments. His Honour's view appears to receive some initial support from the terms of s 3.5.11(2). BGM Projects' counsel, Mr Hinson SC, suggested for the first time in oral argument that s 6.1.30(3) of the Act required the application to be determined under s 5.1(6)(b) of the repealed Act (which is in similar terms to s. 3.5.11(1)(b)) rather than under s 3.5.11(1)(b). If that were so, s 3.5.11(2) would have no application. But in any case, while s 3.5.11(2) requires the Council's decision to be based on the assessment under div 2, it does not require it to be based only on these assessments. Section 3.5.11(2) is not determinative of the issue. Much of div 2 was made inapplicable by s 6.1.29(2) although the transitional provisions did not exclude the operation of s 3.5.3 and s 3.5.6 to the development application. When pt 5 of ch 3 is viewed as a whole, it is clear that the Act distinguishes between the assessment process in div 2 of pt 5 of ch 3 in which s 3.5.3 and s 3.5.6 are found and the actual subsequent decision in div 3 of pt 5 of ch 3. The heading and terms of s 3.5.3 refer specifically to the section applying to div 2 and make plain that s 3.5.3 does not apply beyond div 2. This also suggests that s 3.5.6 is likewise limited in its application to div 2. The separation of the assessment process in div 2 from the subsequent decision to approve on conditions is clear whether the decision in this case was made under s 3.5.11(1)(b) of the Act or s 5.1(6)(b) of the repealed Act.
[19] Significantly, s 6.1.31 of the Act in its terms allows a local government with a local planning policy about infrastructure when deciding a development application and deciding the aspect of it relating to the local planning policy, to impose a condition on the development approval requiring a contribution to the cost of supplying infrastructure. Section 6.1.31 has effect only at the time of the local government's decision to approve a development application on conditions about infrastructure. This is a point in time after the assessment process in div 2 of pt 5 of ch 3 in which s 3.5.3 and s 3.5.6 are located.
[20] The better view seems to me to be that the legislature intended s 6.1.31 to have application where a local government has a transitional planning scheme policy about infrastructure at the time of deciding whether to approve a development application with a condition or conditions requiring a contribution towards the cost of supplying infrastructure, even if that local planning policy came into effect after the day the decision stage for the application started,[12] that is, irrespective of s 3.5.3 and s 3.5.6 which apply to the assessment process of an application.
[21] This construction fits comfortably with the purpose of the Act and with the Act's clear distinction in ch 3 pt 5 between div 2 "Assessment process" and div 3 "Decision", which deals with the decision to approve an application on conditions. The ordinary meaning of the words used in s 6.1.31 also supports that construction. The section refers to the local government deciding the development application and, where it has an appropriate planning scheme policy (such as the Council's planning scheme policy 11), allows the local government when deciding the aspect of the application relating to the planning scheme policy, to impose a condition on the development approval such as condition 65. This suggests the critical point in time when the local government must have a planning scheme policy relating to infrastructure is when it is deciding to approve a development application on a condition or conditions requiring a contribution to the cost of the infrastructure.
[22] One concern about my preferred construction is that it would seem to allow a local government to amend its planning scheme or planning scheme policy after a development application had been lodged, colloquially akin to shifting the goal posts during the game. Even if the primary judge's construction was correct, s 3.5.6(2) does not in any case prevent this. It merely sets the cut off point for shifting the goal posts in the assessment process rather than at the time of the actual decision granting conditional approval. Further, s 4.1.52 of the Act confers a discretion on the Planning and Environment Court in deciding an appeal in respect of a development application to "give weight to any new laws and policies the court considers appropriate". It seems unlikely the legislature intended to give the court deciding an appeal this discretion but deny it to the local government at the time of deciding to approve the application with conditions. The wording of s 4.1.52(2) also supports my construction of s 6.1.31.
[23] In my view the primary judge erred in finding that s 3.5.6(2) had the effect that, despite s 6.1.31, the Council could not rely on planning scheme policy 11 to approve BGM Projects' development application subject to condition 65.
The terms of the primary judge's order and s 4.1.52
[24] I turn now to the second limb of the Council's argument which turns on s 4.1.52. The words of that section unambiguously provide that the Planning and Environment Court in deciding BGM Projects' appeal from the Council's imposition of condition 65 had a discretion under s 4.1.52(2) to give weight to any new policies including the Council's planning scheme policy 11. The first issue in BGM Projects' appeal to the Planning & Environment Court (whether condition 65 was relevant or reasonably required) remained live and undetermined when his Honour heard and determined the preliminary point. The terms of the order and declaration made by the judge were inconsistent with s 4.1.52(2) and wrongly purported to fetter the discretion of the Planning and Environment Court when determining the still pending appeal. Even if I am wrong in my construction of the Act as to the relationship between s 3.5.6 and s 6.1.31, for these reasons and for the reasons identified by Fryberg J at paras [35]-[39] the order and declaration made by the primary judge were wrong in law and should be set aside.
[25] The application for leave to appeal should be granted, the appeal allowed, the order and declaration of the Planning and Environment Court made on 13 October 2006 set aside and instead the proceedings should be remitted to that court to hear and determine according to law. BGM Projects Pty Ltd should pay Hervey Bay City Council's costs of and incidental to the appeal to be assessed.
[26] FRYBERG J: This appeal from the Planning and Environment Court wears two aspects. The first can loosely be described as concerned with the power of that court; the second with the power of a local authority as assessment manager.
The circumstances giving rise to the case
[27] Burrum Heads is the northern-most township to the immediate south of the Burrum River estuary. It is located between the Hervey Bay waterfront and Burrum Coast National Park. It is a holiday residential area. The respondent (“BGM”) owns three contiguous allotments there, separated from the beach only by a 100 m wide beachfront protection area. They enjoy spectacular views across Hervey Bay and Fraser Island. At their centre is a constructed lake. On 29 September 2004 BGM made a development application to the Hervey Bay City Council (“the Council”) seeking a permit to reconfigure its three allotments into 203 allotments. It proposed to redevelop the 85 ha occupied by the three allotments (or perhaps in stage 1, about 29 ha of it – it is unclear from the record) into 196 residential low density lots, three residential medium density sites, a local shopping site and three open space areas.[13] This was quite a large development and BGM proposed to carry it out in five stages. It was also a complex development. It required referral to the Department of Natural Resources, the Department of Main Roads and the Beach Protection Agency and extensions of time to consider its detail.
[28] Eventually, on 8 September 2005, the Council issued a decision notice in effect approving the application subject to conditions. BGM requested suspension of the appeals period to enable further discussions with the Council in relation to a number of the conditions, and that occurred. Following those discussions the Council issued revised draft conditions on 13 October 2005. BGM accepted all but one of those conditions and requested the Council to issue a negotiated decision notice deleting that condition. The Council was unwilling to delete the condition, and on 1 December 2005 it issued a negotiated decision notice and development permit accordingly. The condition in question was:
“65.Payment of a Contribution toward Transport Infrastructure (including pedestrian and cycleway) shall be made to Council in accordance with Planning Scheme Policy 11 or the policy current at the time of payment.”
The proceedings in the Planning and Environment Court
[29] By notice filed on 19 December 2005 BGM appealed to the Planning and Environment Court against the inclusion of condition 65 in the decision and sought an order that the condition be deleted. It alleged that the condition was not relevant or reasonably required in respect of the proposal and (correctly) that the policy referred to in it did not purport to enter into force until 30 April 2005,[14] after the application was lodged. The policy provided for contributions by developers toward transport infrastructure. On 5 May 2006 that court ordered (among other things):
“1A.The issue identified in the facsimile from Deacons to Connor O'Meara attached and marked “A”, be heard and determined as a preliminary legal point.”
The issue so identified was:
“Whether the Court may:
(1) have regard to; or
(2) give weight to,
the Respondent’s Transitional Planning Scheme Policy 11 – Sewerage, Water Supply and Transport Infrastructure Charges Policy (‘Policy’), having regard to the commencement of that Policy on
30 April 2005 and the start of the decision stage prior to that date.”
[30] The court's power to decide a preliminary point is conferred by r 20 of the Planning and Environment Court Rules:
“20 Orders or directions
(1)At any time after an entry for hearing is filed in a proceeding, any party may apply to the court for an order or directions about the proceeding.
(2)Without limiting subrule (1), the application may be for one or more of the following—
(a)…
(b)an order about a preliminary point that may wholly or substantially decide the proceeding or a significant issue in the proceeding.”
The issue in question fell within that rule. If it were decided in the negative, it would in the circumstances of the case have decided the appeal, as the Council asserted no other basis for the condition appealed against. In that eventuality, however, the appropriate order would not have been a declaration; it would have been an order allowing the appeal and deleting the challenged condition (there was no suggestion that it was not severable). If on the other hand it were decided that the court could have regard or give weight to the policy, that decision would not have decided the appeal and it would have been necessary to give appropriate directions for its disposition. Again, a declaration would have been unnecessary.
[31] The point was argued on 17 July 2006 and Judge Wilson SC published his decision on 13 October 2006. BGM won. The court declared:
“That, in this appeal, the Court ought not have regard to or give weight to the Respondent’s Transitional Planning Scheme Policy 11 – Sewerage, Water Supply and Transport Infrastructure Charges Policy”.
That is the order from which the Council now seeks leave to appeal. The Planning and Environment Court made no consequential orders, and the appeal to that court remains pending. BGM does not oppose leave, and the merits of the appeal were argued before us.
[32] Although it is not immediately obvious (or at the least, it was not so to me), there is a discrepancy between the terms of the issue identified in the interlocutory order of 5 May and the declaration which was ultimately made. The issue for determination was whether the court had power to do certain things (“may have regard to”). The declaration which was made refers not to what the court “may” do, but to what the court “ought” to do. The judge did not explain why that change was made.
[33] Early in his reasons, his Honour set out the issue for determination in the terms quoted above.[15] He described it as “phrased in terms referable to” s 4.1.52(2)(a) of the Integrated Planning Act 1997 (“the Act”), and in a footnote to that sentence set out the terms of that section:
“4.1.52 Appeal by way of hearing anew
(1)An appeal is by way of hearing anew.
(2)However, if the appellant is the applicant or a submitter for a development application, the court—
(a)must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; …”.
He made no further reference to the power of the court or to that section.
[34] The balance of his Honour's careful and complex reasons address the power of the Council to take the policy into account. He concluded that the Council should have disregarded the policy and was not entitled to impose condition 65 in reliance upon it. He then wrote, “The question posed as a preliminary point should, then, be answered in the negative.” He did not explain how that followed from the conclusion that the Council should have disregarded the policy.
The application for leave to appeal
[35] The principal thrust of the submissions on behalf of the Council was against his Honour's reasons as delivered; in other words, the submissions were principally designed to establish what the Council might take into account. However it was also submitted that whatever limits might attach to the Council, the court was not similarly constrained. On behalf of the Council, Mr Gore QC submitted that there was no warrant for reading down the clear words of s 4.1.52. This, he submitted, was a clear case where the court had a wider power than did the Council.
[36] Although Mr Hinson SC for BGM did not expressly concede the correctness of Mr Gore's submission, he accepted that “there is obviously great force” in it. He expressly refrained from submitting that the court’s powers under the section were constrained in the same way as the Council's (thereby abandoning a submission to that effect in his outline of argument), although he frankly conceded that he had so contended in the Planning and Environment Court. He submitted that if that court could take the policy into account, it nonetheless had a wide discretion which ought to be exercised against giving any effect to the policy. He submitted that otherwise the Council would be taking advantage of its own unlawful decision, and that this would be unjust to BGM, in that the Planning and Environment Court would be considering the appeal to it on a basis entirely different from that upon which the Council was required to decide the application.
[37] In my judgment the Council's submission is plainly correct. Section 4.1.52 is concerned with the nature of the appeal process in the Planning and Environment Court. It establishes that the appeal is by way of hearing anew. That has always been the position in that court and its predecessors. In the absence of any contrary provision, a court conducting a fresh hearing is required to decide appeals before it in accordance with the law at the date of its decision.[16] For many years now that particular consequence has been modified in Queensland by statute; in the Act, that modifying effect is achieved by s 4.1.52(2)(a). That paragraph makes it clear that in deciding an appeal, the court has power to give weight to any new laws and policies made after the date of the application. How much weight is a question for the court.
[38] The declaration which the judge made did not conflict with that section, but only because of the use of the word “ought”. It is still flawed. Not only does it not resolve the preliminary point ordered to be determined, but also it purports to declare how the judge who hears the appeal should make the judgment which the Act requires that judge to make. That judgment is in its nature discretionary. No authority was cited to us for the proposition that a declaration might be made in a preliminary way in such circumstances, and I doubt if any exists. It will necessarily fall to the judge who hears the appeal to consider not only the state of the law and policy at the time the appeal is determined, but also to weigh considerations of fairness to BGM on the one hand against issues of public policy on the other in the light of any evidence which may be led on the appeal as to the intrinsic merits of the policy. That evidence might include, for example, evidence about the history of the adoption of the policy sufficient to permit reliance upon the principle in Coty (England) Pty Ltd v Sydney City Council.[17] The question of how a judgment in the nature of a discretion ought to be made should be considered in the light of all of the relevant facts placed before the court on the hearing of the appeal.
[39] It follows that the order made in the Planning and Environment Court should be set aside and the matter remitted to that court to hear and determine the appeal to that court.
The Council and the policy
[40] That is sufficient to dispose of the proceedings before us, but it does not do justice to the submissions made by both parties at the hearing. We were told that this was seen by them as a test case for a number of similar situations which have arisen, involving more than one local authority. The question which was of greatest concern to the parties related not to the power of the court but to the power of the Council as assessment manager under the Act to have regard to the policy. Section 4.1.52 does not affect the position of the Council. Because the Council had a transitional planning scheme, ss 6.1.29 and 6.1.30 of the Act applied. Provided the Council had a local planning policy or a planning scheme policy about infrastructure, so did s 6.1.31.[18] If that section applied (and the parties agreed that it did), the Council was entitled to impose a condition requiring a contribution towards the cost of supplying infrastructure under a policy. The question which the parties debated was whether the Council was prohibited from taking the transport infrastructure provisions of Policy No. 11 into account when deciding (and perhaps when assessing) the application. BGM submitted that it could not do so because (putting it crudely) of s 3.5.3 as extended by s 3.5.6. That submission was upheld in the court below. The question is evidently one of some importance, even though its resolution was not strictly necessary to dispose of the matter before the court below or in this court. As Mr Hinson pointed out, it might have been better for BGM to have sought a declaration from the Planning and Environment Court that the Council's decision was unlawful. (I have not considered whether proceedings could be brought in the Supreme Court under the Judicial Review Act 1991). Nonetheless it can fairly be said that the declaration made below flowed from the judge’s analysis of the position of the Council. But for one matter, it would in my judgment be appropriate for us to consider that analysis.
[41] Both parties addressed the position of the Council on the assumption that the policy was valid. In response to questions from this court, they provided written submissions supporting that proposition. Nonetheless, the validity of the policy is in my judgment attended by considerable doubt. The doubt arises because of difficulty in identifying any provision in the Act as it stood at the relevant time conferring power to make a policy containing formulae for calculating infrastructure charges applicable to transport infrastructure.
[42] The policy in question is called Transitional Planning Scheme Policy No. 11 and is subtitled Sewerage, Water Supply and Transport Infrastructure Charges Policy. It was first adopted on 16 August 1995 and was amended on 29 May 1996 and 27 February 2002. The parties were agreed that as so amended it was capable of being applied to BGM's application. However in that form it did not deal with transport infrastructure. Provisions relating to transport charges were added to the policy in April 2005 and it was those provisions to which the challenged condition 65 referred.
[43] The identification of the policy as a transitional planning scheme policy was supported by parts of the text of the policy. Under the heading “Commencement” it recited, “This Transitional Planning Scheme Policy 11 -- Sewerage, Water Supply and Transport Infrastructure Charges Policy has been adopted by resolution of the Hervey Bay City Council (HBCC) on April 27th 2005”.[19] Under the heading “Position Statement” it provided:
“This policy has been developed in accordance with Chapter 6:
Part 1-Division 4 and S6.1.31 of the Integrated Planning Act 1997 (IPA). This transitional policy will deliver infrastructure contributions in accordance with the Act under the new IPA planning scheme. In the future this policy will be superseded by a Priority Infrastructure Plan (PIP) and complimentary [sic] Infrastructure Charging Schedules as part of a first round amendment to the IPA Planning Scheme.”
[44] One might reasonably have concluded from those references that the policy was indeed intended to be a transitional planning scheme policy within the meaning of s 6.1.14 of the Act. However the parties were at one in denying that conclusion. They were agreed that at least so much of the policy as related to transport infrastructure was a new planning scheme policy enacted under s 6.1.19. They did not explain to us the reason for this agreement. Perhaps the reason was that there is no power for local authorities to make new transitional planning scheme policies, and the creation of a new set of provisions dealing with transport infrastructure for the first time was not regarded as falling within the ambit of the power to “amend” a transitional planning scheme policy conferred by s 6.1.16 of the Act. Whatever the reason, I am content to proceed on the basis that the policy was not able to be supported as a transitional planning scheme policy.
[45] Section 6.1.19 provided:
“6.1.19 Planning scheme policies may support transitional planning schemes
If a local government has a transitional planning scheme, the local government may make a planning scheme policy under this Act as if the transitional planning scheme were an IPA planning scheme.”
The term planning scheme policy was given meaning by s 2.1.16:
“2.1.16 Meaning of planning scheme policy
A planning scheme policy is an instrument that—
(a)supports the local dimension of a planning scheme; and
(b)supports local government actions under this Act for IDAS and for making or amending its planning scheme; and
(c)is made by a local government under this division.”
Section 2.1.19 specified the process required to be followed for making a planning scheme policy and s 2.1.21 provided that a planning scheme policy became a policy for a planning scheme area with effect from the date calculated in accordance with that section.
[46] Despite the width of s 2.1.16, in s 2.1.23 the Act imposed substantial limitations on what could be included in a planning scheme policy:
“(4)A planning scheme policy may only do one or more of the following—
(a)state information a local government may request for a development application;
(b)state the consultation the local government may carry out under section 3.2.7;
(c)state actions a local government may take to support the process for making or amending its planning scheme;
(d)contain standards identified in a code;
(e)include guidelines or advice about satisfying assessment criteria in the planning scheme.”
It was not suggested that Policy No. 11 fell under any part of s 2.1.23(4).
[47] The position adopted jointly by the parties was that the Council's power to make a policy containing formulae for calculating infrastructure charges applicable to transport infrastructure was conferred by s 6.1.20(1)(b). At the material time s 6.1.20 provided:
“6.1.20Planning scheme policies for infrastructure
(1)This section applies if—
(a)a local government has an IPA planning scheme; and
(b)the local government prepares a planning scheme policy about infrastructure.
(2)The planning scheme policy must specify, for a development application for the reconfiguration of a lot—
(a)the matters that were required to be specified in a local planning policy under section 6.2(6)(b)(i) and (ii) of the repealed Act; and
(b)the monetary contribution to be paid to the local government instead of supplying an area of land for use as a park.
(3)However, if the local government has an infrastructure charges plan, the planning scheme policy must not deal with the same matters as the infrastructure charges plan.
(3A)This section applies despite section 2.1.23.
(4)This section expires on 31 March 2006.”
The parties submitted that the limitations in s 2.1.23 were avoided by the operation of sub s (3A).
[48] As presently advised I would not accept that submission. Section 6.1.20(1) does not confer power to do anything. It simply denominates two conditions which must exist for that section to apply. It is true that it assumes that a local government may make a planning scheme policy about infrastructure; and it is reasonably clear from s 6.1.20(2) and (3A) that notwithstanding s 2.1.23, such a policy could include provision for calculating contributions payable by developers in respect of water supply and sewerage works and in lieu of parks as described in s 6.1.20(2). There is however no reason to assume that a local government must have power to provide for contributions in relation to transport infrastructure merely because s 6.1.20(1) refers to the preparation of a planning scheme policy about infrastructure.
[49] A number of the sections to which I have referred were put into the form which they took at the relevant time by the Integrated Planning and Other Legislation Amendment Act 2003. That Act also amended s 6.1.31. Nothing in that section supports the interpretation of s 6.1.20 propounded by the parties. Section 6.1.31(2)(c) permitted a local government to impose on a development approval a condition requiring a contribution under a planning scheme policy towards the cost of supplying infrastructure. The parties drew attention to the terms of the explanatory note to the 2003 Act which referred to that subsection:
“Clause 30 amends subsection (2)(c) to clarify that the ability to impose such conditions on development is not limited to the types of development, types of development application or infrastructure networks for which conditions could be imposed under the repealed Act. This means a properly prepared local planning policy under a transitional planning scheme, or a planning scheme policy under an IPA planning scheme, could allow a local government to impose conditions on types of development (e.g. building or works), development applications (code assessable material change of uses) and infrastructure that was not chargeable (transport and drainage) under the repealed Act.”[20]
As presently advised I doubt if it is legitimate to refer to that note, as the terms of s 14B of the Acts Interpretation Act 1954 do not appear to be satisfied. Even if regard can be had to the note, it seems from the wording of the Act that it is simply wrong. That appears to have been tacitly recognised when s 6.1.20 was further amended by the Integrated Planning and Other Legislation Amendment Act 2006. At that time the section was amended so that it explicitly required planning scheme policies to provide for infrastructure contributions without restriction as to the type of infrastructure. The explanatory note to that amendment stated:
“Clause 71 amends section 6.1.20. Subsection (2) currently specifies certain matters a policy prepared under this section must include. These matters generally relate to the infrastructure contributions a local government was able to obtain under the repealed Local Government (Planning and Environment) Act 1990. Due to the delays many local governments have experienced in completing their IPA planning schemes, few local governments have made significant progress in developing their Priority Infrastructure Plans (PIPs) and related Infrastructure Charges Schedules. Consequently, there has been a greater reliance by local governments on local planning policies and planning scheme policies under section 6.1.20 to obtain contributions towards the cost of required infrastructure in the period prior to the adoption of the PIP. The formerly limited scope of subsection (2) was a possible impediment to this approach, as the section generally lacked guidance on the intended scope and application of the policies prepared under it.”[21]
I doubt if the discussion is advanced by reference to explanatory notes.
[50] However the court has not heard any argument in support of invalidity and the issue is not truly alive in this application. In those circumstances we should not decide the question. By the same token we should not decide any question which assumes the validity of the policy unless it is necessary for us to do so to resolve the application. That is particularly the case when we have not had the benefit of a judgment in the court below dealing with the question; and when it will in any event remain open for argument on the hearing of the appeal pending in that court. Whether the Council was prohibited from taking the transport infrastructure provisions of Policy No. 11 into account when deciding (and perhaps when assessing) the application is a question which assumes the validity of the policy. In my judgment we should not determine it in this application.
[51] The parties requested that if the court was not willing to proceed on the footing that the policy was valid, the court should list the matter for mention before proceeding further. No reason for taking that course was advanced. I would therefore reject the request.
Order
[52] The order of the court should be:
1. Application for leave to appeal be granted.
2. Appeal allowed.
3. Set aside the declaration of the Planning and Environment Court made herein on 13 October 2006.
4. Remit the proceedings to that court to hear and determine according to law.
5. Order that the respondent pay the applicant's costs of the application to be assessed
[53] PHILIPPIDES J: I agree that the application for leave to appeal should be granted and that the appeal should be allowed with costs.
[54] For the reasons set out by Fryberg J the order and declaration made by the primary judge should be set aside. Section 4.1.52(2)(a) of the Integrated Planning Act 1997 (Qld) (“the Act”) provides in clear terms that the Planning and Environment Court has a discretion on the hearing of an appeal as to the weight to be given to any new policies, and is apt to include the Council’s transitional planning scheme policy 11. I am not persuaded that any reason was identified for restricting the scope of the discretion in s 4.1.52(2)(a) so as to preclude weight being accorded to policy 11 because it did not come into force until after the application for reconfiguration was made by the respondent.
[55] As for the other issue raised concerning the Council’s power to have regard to its planning scheme policy 11 in imposing, as a condition of the approval, condition 65 concerning the payment of a contribution towards transport infrastructure, I agree with the President that that issue ought to be addressed by this Court on the basis of the concessions made by both parties concerning the validity of the policy and the relevance of s 6.1.19 and s 6.1.31 to it. The dispute on this issue turned on whether s 6.1.31 empowered the Council to impose condition 65 on the approval of the respondent’s development application, given the terms of s 3.5.3 and s 3.5.6.
[56] For the reasons identified by the President, I also consider that the primary judge erred in the construction he adopted of s 6.1.31. The ordinary meaning of the terms of s 6.1.31(2)(c) would permit the Council in deciding to approve the respondent’s application to impose a condition such as condition 65. While s 3.5.6 provides for a discretion at the assessment processing stage to give weight to a policy coming into effect outside the time specified by s 3.5.3, that is in the time period after the application was made but before the decision stage is embarked upon, that limitation is one necessarily relevant to the time framework applicable for the assessment process. The construction of s 6.1.31 favoured by the President, with which I agree, draws on the distinction in the Act between the “assessment process” in ch 3 pt 5 div 2 and the “decision” in div 3 and results in s 6.1.31 having an effect which is not inconsistent with s 3.5.3 and s 3.5.6.
[57] A central point in the respondent’s argument as to the construction of s 6.1.31 was that the effect of s 3.5.11(2) was to limit the scope of the policies to be considered when deciding an application, by necessarily incorporating the limitation (resulting from s 3.5.3 and s 3.5.6) on the assessment process into the decision making stage. This was because s 3.5.11(2) “merged” assessment and decision-making. The respondent’s approach in effect requires that the word “only” be imported into s 3.5.11(2). However, elsewhere in the Act, where such exclusivity is intended it has been provided for expressly by the use of the word “only”: see s 3.5.4(2). The power conferred on the Council under s 6.1.31(2)(c) in deciding a development application under a transitional planning scheme and the conditions attaching to it ought not to be read down by the discrete limitations applying to the assessment process under s 3.5.3 and s 3.5.6 and is not indicated by s 3.5.11(2).
[58] The proceedings should be remitted to the Planning and Environment Court to hear and determine according to law.
Footnotes
[1] See the Act, s 3.5.30.
[2] The Act, s 1.2.1.
[3] The Act, s 1.3.3.
[4] See s 3.1.7 of the Act. It is common ground that the assessment manager here was the Council.
[5] The Act, ch 3, pt 5, div 2 "Assessment process" comprises of s 3.5.3 to s 3.5.6 inclusive.
[6] See s 6.1.31(2)(a) of the Act.
[7] As defined in s 6.1.3 of the Act.
[8] See definition in sch 10 of the Act and sch 1 of the Act.
[9] The Act, s 6.1.30(3).
[10] See the Act, s 3.5.6(2).
[11] See the Act, s 6.1.30(3).
[12] See the Act, s 3.5.6(2).
[13] There may also have been three residual lots.
[14] Whereupon, provided it was valid, it had the force of law: Integrated Planning Act 1997, s 2.1.23(1).
[15] Paragraph [29].
[16] Behrens v Caboolture Shire Council (1979) 39 LGRA 138.
[17] (1957) 2 LGRA 117.
[18] See s 6.1.31(1)(b)(i). It was common ground that s 6.1.31(1)(b)(ii) did not apply.
[19] Emphasis in the original.
[20] [2003] 2 Explanatory Notes 1770. Query what the note means by “impose conditions on types of … infrastructure” as opposed to imposing conditions on development applications. Perhaps “on” was meant to be “in respect of”; but it appears muddled.
[21] [2006] 1 Explanatory Notes 270 (emphasis added).