Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd
[2009] QCA 231
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- Unreported Judgment
- Appeal Determined (QCA)
- Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd[2009] QCA 231
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Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd[2009] QCA 231
Reported at [2010] 1 Qd R 439
Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd[2009] QCA 231
Reported at [2010] 1 Qd R 439
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | SC No 5607 of 2008 |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 14 August 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 April 2009 |
JUDGES: | McMurdo P, Chesterman JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – GENERAL MATTERS – OTHER MATTERS – where the appellant argued that due to the respondent’s failure to comply with s 365 of the Property Agents and Motor Dealers Act 2000 (Qld) they could withdraw their offer to purchase – where the section required that the contract be one a ‘contract for the sale of residential property in Queensland, other than a contract formed on a sale by auction’ – whether land was residential property as defined in the Act – whether appellants were bound by the contract to purchase Acts Interpretation Act 1954 (Qld), s 14A(1) Integrated Planning Act 1997 (Qld), s 1.3.2, s 2.1.1, s 3.5.28 Property Agents and Motor Dealers Act 2000 (Qld), s 17, s 364, s 365, s 367 Marana v Commissioner of Taxation (2005) 214 ALR 190; [2004] FCAFC 307, applied Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, applied |
COUNSEL: | D Fraser QC, with P Telford, for the appellant P H Morrison QC, with G J Handran, for the respondent |
SOLICITORS: | Williams Graham & Carman Solicitors for the appellant Hickey Lawyers for the respondent |
[1] McMURDO P: The appeal should be dismissed with costs. The relevant property was not residential property under s 17 Property Agents and Motor Dealers Act 2000 because of s 17(3)(b)(ii). I agree with Chesterman JA’s reasons, save for noting that, in my view, it is unnecessary to decide in this case, in the absence of considered argument, whether the deed between the parties was a contract for the sale of land.[1]
[2] CHESTERMAN JA: In October 2007 the appellant and respondent became parties to a Call and Put Option Deed (“deed”) the subject matter of which was vacant land described as “proposed Lot 203”. The deed which was in conventional terms described the respondent (“Oasis”) as the grantor and the appellant (“Hedley”) as the grantee. It conferred on Hedley an option to purchase Lot 203 on the exercise of which Oasis was obliged “to enter into a binding contract for the sale of the Lot”. It also conferred on Oasis a put option to require Hedley to purchase the lot by executing the contract if Hedley did not exercise the call option by the specified date. The contract by which the parties would be bound upon the exercise of either option was annexed to the deed. The price payable under the contract was $8,000,000.
[3] On 1 April 2008 the solicitors for Hedley wrote to Oasis’ solicitors:
“We ... give you notice that our client withdraws its offer to purchase (Lot 203). ... pursuant to section 365(3) of the Property Agents and Motor Dealers Act 2000, on the basis that our client is not bound by the ... Deed as a result of your client’s failure to give the direction required by section 365(2)(b)(i) and/or section 365(2)(c)(ii).”
Oasis refused to accept the withdrawal and purported to exercise the put option on the date fixed by the deed, 21 July 2008.
[4] Whether the provisions of the Property Agents and Motor Dealers Act 2000 (“PAMDA”) applied so that Oasis should have given the prescribed direction depended upon whether the deed was a “relevant contract” for the purposes of PAMDA. The statutory obligation to give warnings, and to direct attention to the warnings, applies to vendors under “relevant contracts”. These are defined by s 364 to mean:
“a contract for the sale of residential property in Queensland, other than a contract formed on a sale by auction.”
[5] The appeal was argued on the basis that the deed was a contract for the sale of Lot 203 and if that were residential property the deed was a relevant contract. The deed is obviously not a contract for the sale of Lot 203, or anything else. It is an agreement, having the effect of a deed, which conferred alternate rights on the parties to exercise an option in defined circumstances which would require the respective optionee to execute a contract in identified terms to buy or sell the land. Once the call or put option had been exercised, and the contract executed, a contract for the sale of property would have come into existence; but the deed was not such a contract. The parties conducted the litigation on the convention that the deed was such a contract and both refused adamantly to abandon the convention. The appeal should therefore be determined on the fiction adopted by the parties and these reasons will proceed on the basis that the deed was a contract for the sale of property.
[6] Section 17 provides that property is residential property if it is:
“(1) …
(a)...
(b)a single parcel of vacant land in a residential area.
…
(3)Despite subsections (1) and (2), the following property is not residential property –
…
(b)a single parcel of vacant land, if the property –
…
(ii)is in a residential area, but only if a local government has approved development in relation to the property, the development is other than for residential purposes and the approval is current”.
[7] Subsection (4) contains definitions. “Development” was given the meaning it has in s 1.3.2 of the Integrated Planning Act 1997 (“IPA”). “Planning scheme” has the meaning given in s 2.1.1 of IPA. A “residential area” is “an area identified on a map in a planning scheme as an area for residential purposes”. “Residential purposes” includes rural residential purposes and future residential purposes.
[8] Hedley commenced proceedings seeking declarations that Lot 203 was residential property as described in s 17 of PAMDA; that it had a right to terminate the deed pursuant to s 367(2) of PAMDA, or withdraw its offer to buy the lot pursuant to s 365(3); and that it was not bound by the deed. On 29 October 2008 the primary judge declared that the land, Lot 203 on SP 210231 was not “residential property within the meaning of s 17 of the Property Agents and Motor Dealers Act 2000 (Qld)”.
[9] The only basis on which Hedley contends that it was not bound by the deed and/or was entitled to terminate it was that Oasis had not complied with the provisions of pt 11 of PAMDA. There was no need to comply unless the deed was a relevant contract. It was such a contract only if Lot 203 was residential property.
[10] The primary judge said this about the land:
“[5]The land the subject of the deed (‘lot 203’) forms part of a 5 acre ... city block in Cairns bounded by Abbott Street, Aplin Street, Lake Street and Florence Street. Until 2 July 2008 the block comprised two allotments: lot 788, the former school reserve, which occupied 95% of the block; and lot 21, the balance, which was at the western corner. (Oasis) now owns the entire block; it became the registered proprietor on 4 July 2007. In the centre of the block is constructed the Oasis Resort, a tall building containing 322 accommodation units constructed at some time after 1996 ... . It and its associated uses occupy about 60% of the block. In March 2004 a potential purchaser from the then owner successfully applied for Council approval of the reconfiguration of the block into three lots ... . The reconfiguration became embodied in a plan registered on 2 July 2008.”
[11] The plan was Survey Plan 210231. It created three lots: 201, 202 and 203. The high rise Oasis Resort occupies Lot 202. Lot 203 is vacant and is 4,000 square metres (one acre) in extent.
[12] Lot 203 is within the area designated on a map in the planning scheme for the city of Cairns as “tourist and residential”. The parties agreed, and the primary judge found, that Lot 203, conformably with the planning scheme, could be used for tourist purposes or residential purposes and that, therefore, the lot was within a residential area. A contract for the sale of the land was therefore a sale of residential property, the land being a single parcel of vacant land in a residential area, unless s 17(3)(b)(ii) applied.
[13] The exclusion operates if at the time of the contract for the sale of the property there was a:
(1)Current approved development in relation to the property;
(2)Other than for residential purposes;
[14] The primary judge held that the approval given by the Cairns City Council to the reconfiguration of Lots 788 and 21 into Lots 201, 202 and 203 was approved development in relation to Lot 203 which was current at the relevant time and was other than for residential purposes. Accordingly his Honour made a declaration that the subject matter of the deed was not residential property.
[15] Hedley attacks this finding. It submits that the approval to reconfigure the lots was not “other than for residential purposes”. There is no doubt the approval was current and related to Lot 203.
[16] The deed described its subject matter as “proposed Lot 203” because in October 2007 the plan of reconfiguration had not been registered although approval for the reconfiguration had been given on 24 August 2007. The trial judge reasoned that reconfiguring a lot is within the definition of development, found in s 1.3.2 of IPA, and “development” in s 17 of PAMDA has the same meaning. Therefore, reconfiguration of a lot is development for the purposes of PAMDA. This is undoubtedly right.
[17] The decision notice by which the reconfiguration was approved contained these provisions:
“PROPOSAL:2 Lots into 3 Lots
(and an Easement)
TYPE OF DEVELOPMENT:Reconfiguring a Lot
REAL PROPERTY DESCRIPTION:Lot [788] on C1983 and Lot 21 on C198136 Parish of Cairns
…
DECISION DATE:24 August 2007…
DECISION:Approved subject to conditions
TYPE OF APPROVAL:Development Permit”
[18] The conditions imposed related to making contributions for water supply, sewerage and stormwater, and required the applicant to relocate existing water pipes and sewerage lines so that they did not traverse Lots 201 or 203. There were other conditions but nothing touched upon the use to which the new lot, 203, could be put, or what might be built on it.
[19] The primary judge held:
“[42]... the question whether a development is other than for residential purposes within the meaning of s 17(3)(b)(ii) of PAMDA must be resolved as a question of fact. It must be resolved by looking to the purpose of the development at the time of the development approval; the development is the approved development and the approval is the focus of the paragraph. It must be determined objectively; it is not the subjective purpose of the applicant or of the Council which governs the issue, although they may be relevant.
[43]I make the following findings:
…
- The reconfiguration was not for residential purposes. ... the purpose of the approval was simply to end up with three lots where there were two.
…
- The purpose of ending up with three lots where previously there were two is other than a residential purpose.”
[20] The correctness of his Honour’s view depends upon what is meant by the phrase “the development is other than for residential purposes”. There are, I think, two competing constructions. One, favoured by the primary judge, is that development for something which is not for residential purposes is “development ... other than” for those purposes. So reconfiguration to create more lots than existed previously is not for “residential purposes”: it is for subdivision. The alternative construction is that the development must be for a designated purpose which is not residential. By this construction the exclusion will not operate unless there is approval for development, the terms and conditions of which will permit improvements to the land which are not residences.
[21] The choice between constructions is whether (i) the phrase requires development to be for a purpose which is not residential; which is other than, or different to, residential development or (ii) any development (such as reconfiguration) which is not itself for residential purposes will come within the exclusion. With due respect to the primary judge, who thought otherwise, the first construction is, in my opinion, the only possible one. The other would seriously erode the protection which PAMDA intends to confer upon purchasers of residential property. Its consequence would be that a single parcel of vacant land in a residential area would be excluded from the definition of residential property if a local authority had approved development in relation to the land for a purpose not itself residential but which might result in development for residential purposes. The first construction has the result that such vacant land is residential property unless the approved development is for something that is not residential property, in which case it can be certain that a contract for the sale of the vacant land will not be one for residential property.
[22] This construction better achieves the objects of PAMDA and is therefore to be preferred: s 14A(1) of the Acts Interpretation Act 1954.
[23] I have used the term “approval” or “approved development” rather than “development” because I apprehend that is the concern of the exclusion which operates with respect to vacant land. If land were developed, built on, it would not be vacant. One could easily tell if it was the site of a residence. Moreover s 17(3)b)(ii) required the “approval” to be current. The focus is on what is approved, not what is built.
[24] It follows that the primary judge was wrong in his reasons for concluding that Lot 203 was not residential property, but by notice of contention Oasis has asserted:
“That town planning consent No 4188/95, dated 11 March 1996, was a ‘development in relation to Lot 203 ... other than for residential purposes’, and accordingly Lot 203 ... was not ‘residential property’”.
[25] The town planning consent, or development approval, referred to was that pursuant to which the high rise tourist complex known as Oasis Resort had been built and was operated on what became Lot 202 and what was originally part of Lot 788.
[26] The point was considered but rejected by the primary judge. The relevant facts were described by his Honour:
“[21]... In late 1995 a company called Metro Holdings Ltd applied to the Council for consent to use land the subject of that application for ‘tall building to contain accommodation units (high density) and ancillary facilities.’ The land in respect of which the application was made was described as ‘lot 788 on plan C1983 and ... lot 21 on plan C19813C’; in other words, the whole of the city block. ... At the time the land was zoned ‘B1 Main Business and Shopping’ under the ... planning scheme then in force. The proposed use was described in detail in a planning report which ... accompanied the application. ... it was said, ‘This application relates to the former Cairns Central School site bounded by Lake, Florence, Abbott and Aplin Streets.’ Accompanying plans depicted an ‘Accommodation Units (High-Density) Development configured in a resort style hotel’. The proposal was described ... ‘The development subject of this application only relates to part of the site, centrally located between Florence and Aplin Streets’. ... It was that area (which became Lot 202) which was used ... for the purpose of demonstrating compliance with the criteria in the relevant development control plan with respect to height and the impact of buildings; but the area of the city block was used for the purpose of demonstrating compliance with the plan relating to residential densities.
[22]The application was approved by the Council on 29 January 1996. ... An amended town planning consent permit was issued on 11 March 1996. The property described in that permit was ‘Part of Lot 788 ...’, but somewhat inconsistently, the area of the land was stated to be 20,234m2, which was the area of the whole city block. The use consented to was ‘Tall building comprising of 322 accommodation units and ancillary uses’. The building was in due course constructed and afterwards commenced business as the Oasis Resort.”
[27] The consent was current when the parties executed the deed.
[28] The primary judge found that the Oasis development was “other than for residential purposes”. This conclusion was initially accepted by counsel for Hedley. No argument to the contrary was advanced but Mr Fraser QC, who appeared with Mr Telford for Hedley, formally withdrew his concession that the finding was correct. Although Hedley should not be held to its concession it was right to make it and the trial judge’s conclusion in this respect is plainly right.
[29] The Oasis development was described as:
“A low to medium rise accommodation unit development ... configured in a resort style. The main building contained ‘front and back of house facilities’ and some accommodation units. There were two separate accommodation towers located on the Abbott Street alignment. Vehicles accessed the resort and the car park from Lake Street. A basement car park had space for 110 cars. Some services such as staff dining, general storage and laundry were also located in the basement. There was a large port cochere adjacent to the main lobby to allow ‘larger tour buses ... common throughout the Cairns region’ to pick up and drop off persons staying in the resort. The ‘resort-style configurations of the development’ were said to distinguish it from ‘all similar-sized CBD-based hotels ... within the central business district.’”
[30] The primary judge found that “most if not all of those using the accommodation units would be transient occupants – in all probability, tourists”. In concluding that the development was “other than for residential purposes” his Honour relied upon the judgments in Pearson v Thuringowa City Council [2006] 1 Qd R 416 in which Keane JA (with whom McPherson JA and Dutney J agreed) accepted that:
“... words such as ‘residence’, ‘reside’ and ‘residential’ ... usually connote ‘a degree of permanent or long-term commitment to the occupation of the premises in question’.”
[31] The Court referred to the judgment of the Full Federal Court in Marana v Commissioner of Taxation (2004) 141 FCR 299 which was concerned with the meaning of “residential premises” in a Commonwealth Act which did not give the term a specific definition. After a very extensive review of dictionary meanings the court concluded:
“[26]Clearly, both ‘reside’ and ‘residence’ have the connotation of permanent, or at least long-term commitment to dwelling in a particular place. ...
…
[28]... a hotel was described as ‘[f]irst-class family and residential’. The word ‘residential’ was obviously meant to suggest something other than ordinary hotel accommodation. ... the word ‘residential’ implies a special kind of accommodation, probably long term.
…
[31](The dictionary) references stress the relationship between the word ‘residential’ and the word ‘residence’, suggesting the aspect of permanent or long-term occupation to which we have previously referred. They recognise use of the expression in connection with hotels but generally suggest that such usage describes a hotel that caters for long-term residents.”
[32] There is no definition of “residence” or “residential” in either PAMDA or IPA. The word must be given its ordinary meaning and connotation which, as Keane JA observed, requires the occupant of the premises in question to live in them over a substantial period. The occupation must be “permanent or long-term”. The trial judge was correct in concluding that the Oasis development was not for residential purposes.
[33] The trial judge found however that the approved development did not relate to Lot 203. His Honour reasoned:
“(1)The phrase ‘in relation to the property’ found in s 17(3)(b)(ii) qualifies ‘development’ and not ‘approved’ so that one looks to see whether the development, ie the Oasis resort was ‘in relation to Lot 203’.
(2)Applying Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 501 ‘... the integer of use ... will dictate the precise identity and extent of the ... land the subject of the application. This is a necessary consequence of the fact that the consent being sought is consent to use for a particular purpose. The land is merely the passive object which is being used; the active integer, use, will determine its extent.’
(3)Whether there was ‘approved development in relation to the property’ is a question of fact. There was insufficient evidence to show that any of the conditions attached to the Oasis development approval ‘had any effect on Lot 203’. There was only ‘the most tenuous connection between Lot 203 and the development.’
(4) The only connection between Lot 203 and the approval ‘is a legal one: under s 3.5.28 of IPA, the approval is by law attached to the lot. ... That is insufficient to engage the expression ‘in relation to the property’.”
[34] Step 1 in the reasoning separates “development” from its attendant adjective, “approved”, and then applies the qualifying phrase “in relation to the property” only to the noun. This separation focussed attention on what had been constructed and led the judge to examine the question whether the development bore the necessary relationship to Lot 203 by reference to what had been built pursuant to the town planning consent. That approach involved an examination of the evidence to see whether, as a question of fact, the relationship existed.
[35] The separation is, in my opinion, both artificial and unnecessary and has led to error. The qualifying phrase “in relation to the property”, follows, and surely qualifies the words which precede it, “approved development”. There is no obvious grammatical or syntactical reason for the separation of noun and adjective. Moreover the separation deprives the adjective of any purpose. As a matter of ordinary understanding the words look to the relationship between the property and the “approved development”, whether or not the subject of the approval has been built. The focus as before is on what has been approved, not the physical development.
[36] There is another reason, more compelling than grammar, why what is to be considered is approval for development rather than development in the sense of built structures. It is that s 17(3)(b)(ii) is an exception to the statutory proposition that a single parcel of vacant land in a residential area is residential property. If the land is developed in the sense of being built upon it will not be vacant land. The exception is concerned with approvals for development which will lead to the use of the land for something which is not a residential purpose.
[37] It follows that the inquiry is not whether what was built pursuant to an approval can be seen to be “in relation to” the property in question but whether the approval or, in this case, the town planning consent, relates to, or is in relation to, Lot 203.
[38] Section 3.5.28 of IPA to which the primary judge referred provides:
“(1)The development approval attaches to the land, the subject of the application, and binds the owner, the owner’s successors in title and any occupier of the land.
(2) To remove any doubt, it is declared that subsection (1) applies even if later development (including reconfiguring a lot) is approved for the land”.
[39] The section attaches the development approval of 1996 to the land “the subject of the application”. What was that land? It must be, I think, the land described as “Lot 788 on Plan C1983 and Lot 21 on Plan C19813C” with an area of “20,234.29 square metres”. The application for consent for the Oasis Resort identified the land for which town planning approval was sought as those very parcels. The “subject land” described in the application was said to be “a unique development parcel; ... an entire city block within the Cairns Central Business District”. A “notable feature” of the site was “its existing mature boundary tree cover. This large site affords the opportunity to develop comprehensive CBD based uses whilst retaining the boundary trees.” The proposal which accompanied the application said:
“The opportunities afforded by the large land holding and the perimeter tree cover ... have been reflected in the proposed layout. Buildings are set back from the boundaries to retain existing perimeter trees ... and large ground level open space and recreation areas are proposed.”
[40] As the trial judge noted the calculation of residential densities to show compliance with the town planning scheme used as its divisor the area of the whole 20,000 square metre site. The application stressed that set-back of the buildings from the street frontages had been provided “in order to retain the significant trees” and explained:
“Given that the proposed development encompasses a whole city block, the proposed setbacks would not detract from the continuity in streetscape”.
[41] The application sought relaxation of the relevant bylaws regulating parking spaces. 117 were required. 110 were proposed. The “seven space shortfall” was justified in part on “the retention of the trees” which took up space which could otherwise have been made available for parking.
[42] The “large perimeter trees” which figure prominently in the application have a significance which will become apparent.
[43] On 14 March 1996 the Cairns City Council issued its town planning permit:
“PROPERTY DESCRIPTION:PART OF LOT 788 ON PLAN C1983 ...
AREA OF LAND:20,234.2 m²
…
USE CONSENTED TO ...:TALL BUILDING COMPRISING OF 322 ACCOMMODATION UNITS AND ANCILLARY USES”
on the following conditions:
“Carparking and Access Requirements
6.(a)Provision ... on the site for carparking spaces and access thereto … in accordance with the requirements of the City of Cairns Town Planning Scheme and By-laws ... .
(b)Dispensation for 4 carparking spaces shall be granted for the retention of significant vegetation.
...
(d)A total of 140 carparking spaces shall be provided. 110 carparking spaces shall be provided at basement level. Provision shall be made for the additional carparking spaces to be provided on the remainder of the site which is the subject of Stage 2 of the development ...
(e)Provision shall be made for the additional 30 carparking spaces required as a component of this consent application, to be incorporated into any further development of the total site ...
…
Landscaping and Screening Requirements
14.…
…
(e)in accordance with Plan SD-02A (showing vegetation to be retained, pruned or removed) the following vegetation shall be retained ...
(f)the existing vegetation inclusive of vegetation listed in (e) above ... shall be retained and only pruned or removed with written approval of the Director ...
15.Pruning of the existing vegetation shall only be undertaken by a qualified Arboriculturist in the presence of the Director of Planning and Development ... and the method of pruning is to be approved by the Director ...
…
17.The footpath shall be planted with trees and shrubs in accordance with the requirements of, and to the satisfaction of the Director ...
18.The applicant shall provide appropriate fencing to boundaries where required ...
19.... the storage of any machinery, material and vehicles shall be aesthetically screened so as not to be visible from any road to which the site has frontage”.
[44] Despite the reference in the approval to “part of Lot 788” the approval must, I think, have applied to the whole of both Lot 788 and Lot 21. The reasons for so concluding are that it was that land, “the entire block”, with significant trees around the perimeter of the block which was the subject of the application. The area of land with respect to which consent was given was the whole of Lot 788 and Lot 21, and that area was used to calculate population density to show the development complied with the town plan. Additionally, on 14 April 2008 in response to a request from Oasis’ lawyers the Cairns Regional Council issued a “standard planning and development certificate” setting out the current town planning approvals for “Lot 21 on C198136 and Lot 788 on CPC1983”. The certificate includes the March 1996 consent.
[45] As already mentioned the trial judge thought that the development, the Oasis Resort, did not relate to Lot 203. It is clear, I think, that the approval did. For a start the whole of the area of both Lot 788 and Lot 21 was allowed to be used for the tall building “and ancillary uses”. If one accepts, without deciding, Oasis’ contention that the buildings had to be located on that part of the site in which they are depicted in the drawings which accompanied the application (and where they were actually built) one is left with the fact that “ancillary uses” could be put elsewhere on the land. There seems to have been no particular evidence led as to what those ancillary uses might have been but they would undoubtedly include such things as a swimming pool or tennis court for the use of guests, a garden, or a children’s playground. No doubt building approval would be necessary for the construction of the uses (except perhaps the garden) but the town planning consent allowed the use of that land for those purposes.
[46] Another ancillary use to which the balance of the site could have been put was the storage of “machinery, material and vehicles”. Condition 19 applied so that the storage facilities had to be “aesthetically screened” so as to be invisible from the adjacent roads.
[47] In my opinion that is sufficient to say that the approval related to the whole of the land.
[48] Moreover it is clear that a number of the conditions of the consent related to or affected land beyond that part on which the resort was built. Two in particular may be mentioned.
[49] The first is car parking. There had to be 110 spaces in an underground park “at basement level”. This facility, it may be accepted, was part of the “tall building”. But a further 30 car parks had to be provided “on the remainder of the site ... the subject of Stage 2”. It is common ground that the proposed Stage 2 of the development was to be erected on what became Lots 201 and 203 in the reconfiguration. Those 30 car parks had to be incorporated into any application for approval for Stage 2 but as I read Condition 6 the 30 car parks were a condition of the approval for Stage 1, the Oasis Resort. The consequence is that they were to be located somewhere on the site other than where the buildings were, ie on either of what became Lot 201 or Lot 203. The choice of location was the developers’, but the whole of the balance of the site, after the resort buildings had been constructed, could be used for the 30 car parks. Condition 6 clearly applied to the future Lot 203.
[50] The other condition stressed in argument was the retention of the perimeter trees so frequently referred to in the application. It was on the basis of their retention that the Council reduced by four the number of car parks required.
[51] The precise location of the perimeter trees was not the subject of any direct evidence. Nor was there any identification of the trees, so it is not possible to know whether they fell within the specified trees in Condition 14(e), or 15. Nevertheless it is sufficiently clear that some at least of the perimeter trees were located on the future Lot 203. The evidence comes from Hedley’s application to the Council on 12 February 2008 for consent to use proposed Lot 203 for “commercial premises and multi-unit housing/holiday accommodation in a tall building”. The planning report which was submitted with the application describes the site as unique “in that several significant large trees are located around the perimeter of the site from its former use as the Cairns Primary School”. The development was to consist of two buildings, each eight or 10 storeys high which together would provide 72 three bedroom accommodation units. The proposed setbacks to the buildings were varied “due to the retention of existing trees”. In that part of the report dealing with the development’s impact on the environment the developers’ intentions were stated to be that “existing trees are to be maintained. These are well-established and the design of the tower levels has incorporated them into public spaces.”
[52] The documents show that the trees around the perimeter of Lot 203 were those in existence when the site was the Cairns State School and are undoubtedly the same trees which were the subject of retention and pruning restrictions given in the consent of March 1996. Conditions 14 and 15 applied to inter alia the future Lot 203.
[53] Counsel for Oasis relied also on Conditions 17 and 18 as applying to the future Lot 203. It was argued that the footpaths adjacent to that lot were included in the terms of Condition 17 and that Condition 18 required a fence around the lot’s street frontages. The evidence is insufficient to allow any finding about those matters.
[54] It is apparent that the approvals for the Oasis development did apply to the whole site as did a number of the conditions of that approval. The approved development was for other than residential purposes and was current when the option deed was executed by the parties. Section 17(3)(b)(ii) of PAMDA therefore applied so that the contract was not a relevant one for the purposes of that Act.
[55] The trial judge was right to make the declaration, though not for the reason he gave. Despite concluding that Lot 203 was not residential property his Honour went on to consider questions which needed an answer only if the provisions of PAMDA applied to the deed. The questions were not without complexity and were agitated at some length on appeal. They are, however, hypothetical and did not require a decision either at trial or on appeal because of the legal conclusion reached that the deed was not a relevant contract. It is not necessary and is, I think, inappropriate to consider them because of their hypotheticality. The appeal should be dismissed.
[56] DUTNEY J: I have had the advantage of reading the reasons of Chesterman JA, with which I agree.
Footnotes
[1] See Chesterman JA’s reasons at [5].