FKP Residential Developments Pty Ltd v Maroochy Shire Council
[2009] QCA 403
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- Notable Unreported Decision
- Appeal Determined (QCA)
- FKP Residential Developments Pty Ltd v Maroochy Shire Council[2009] QCA 403
- Add to List
FKP Residential Developments Pty Ltd v Maroochy Shire Council[2009] QCA 403
FKP Residential Developments Pty Ltd v Maroochy Shire Council[2009] QCA 403
SUPREME COURT OF QUEENSLAND
CITATION: | FKP Residential Developments P/L v Maroochy Shire Council & Anor [2009] QCA 403 |
PARTIES: | FKP RESIDENTIAL DEVELOPMENTS PTY LTD |
FILE NO/S: | Appeal No 6578 of 2009 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave Integrated Planning Act |
ORIGINATING COURT: | Planning and Environment Court at Brisbane |
DELIVERED ON: | 24 December 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 September 2009 |
JUDGES: | McMurdo P and Fraser and Chesterman JJA |
ORDER: | Both applications for leave to appeal are refused with costs |
CATCHWORDS: | ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS AND PERMITS – CONDITIONS – CONDITIONS REQUIRING DEVELOPER CONTRIBUTIONS – SUBDIVISIONS – CONTRIBUTIONS FOR DRAINS – where applicant applied for development approval – where approval was granted subject to a condition requiring the applicant to make a monetary contribution towards the respondent’s provision of stormwater infrastructure – where applicant argued that the policy relied upon by the respondent to require such a contribution is inconsistent with, or not permitted by, the Integrated Planning Act 1997 (Qld) (“IPA”) – whether the relevant policy is invalid as it contravenes, or is inconsistent with, provisions of IPA Acts Interpretation Act 1954 (Qld), s 14B Burge v Swarbrick (2007) 232 CLR 336; [2007] HCA 17, cited |
COUNSEL: | D R Gore QC, with J Haydon, for the appellant |
SOLICITORS: | Bain Gasteen Lawyers for the appellant |
- McMURDO P: Both applications for leave to appeal under s 4.1.56 Integrated Planning Act 1997 (Qld) (IPA) should be refused with costs for the reasons given by Chesterman JA.
- FRASER JA: I have had the advantage of reading the reasons of Chesterman JA. I would add only that notwithstanding the authority of Grain Elevators Board (Vict) v Dunmunkle Corporation[1] reference has often been made to difficulties in using subsequent amendments in construing a statutory provision: see, for example, the reference to that question in the joint judgment in Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd.[2] It is unnecessary to say more on that topic since Chesterman JA's analysis comprehensively explains why the applicant's reliance on the 2006 amendments to s 6.1.20 of the Integrated Planning Act 1997 (Qld) is in any event unavailing in this case. I agree that the order proposed by Chesterman JA should be made for the reasons given by his Honour.
- CHESTERMAN JA: The applicant in both applications intends to develop an area of 54.12 hectares of land located at Peregian Springs (described as Lot 5 on SP 162070 and Lot 4 on RP 851934) into residential lots. The development is part of what is called the Coolum Ridges Master Planned Community, preliminary approval for the residential development of which was given by the Planning and Environment Court on 16 December 2005, on an application for a material change of use of the land.
- In January 2006 the applicant lodged with the respondent (“the Council”) an application for the reconfiguration of Lot 5 from one lot into three. On 7 June 2006 the Council approved the reconfiguration subject to a number of conditions one of which, 11, was in these terms:
“The applicant must pay a monetary contribution to Council for the provision of stormwater management infrastructure in accordance with Planning Scheme Policy DC4 – Stormwater Quality. The contribution must be paid at the time of lodgement of the Plan of Survey … The actual amount of the contribution must be in accordance with the Policy … the time of issue of this approval … the development incurs a contribution requirement of $1,389.20.”
- On 22 December 2005 the applicant had lodged an application for reconfiguration of Lots 4 and 5 to allow “moderate urban subdivision”. The Council gave approval, but not until 20 December 2007, subject to conditions one of which, 8(c), provided:
“The applicant must pay contributions towards infrastructure in accordance with the following Planning Scheme Policies …
- Planning Scheme Policy DC4 – Stormwater Quality …
The contributions must be paid at or before the time of lodgement of the Plan of Survey with Council. The actual amount of the contribution must be in accordance with the relevant Policy at the time of payment.”
- The applicant appealed to the Planning and Environment Court by two separate appeals 2606 of 2006, and 380 of 2008, challenging the imposition of conditions 11 and 8(c) respectively. The appeals were heard together and were dismissed on 8 May 2009. The applicant now seeks leave to appeal against the orders dismissing the appeals. By s 4.1.56 of the Integrated Planning Act 1997 (“IPA”) leave to appeal may only be given on the ground of an error in law.
- Put simply the applicant’s contention is that the Council’s Planning Scheme Policy DC4 – Stormwater Quality (“the Policy”) pursuant to which conditions 11 and 8(c) imposed a monetary contribution on the applicant with respect to the reconfiguration of lots is invalid as being contrary to, or inconsistent with, certain provisions of IPA. The imposition of the contributions contained in the conditions is said to be unlawful because only the (invalid) Policy can justify it.
- The primary judge explained the relevant terms of the Policy and its effect on the development. His Honour said:
[11]The Policy, PSP DC4, was created under s 6.1.20 of IPA and took effect on 1 July 2005. S 2.1.23 of IPA gives it the force of law and categorizes it as a ‘statutory instrument’ under the Statutory Instruments Act 1992. Under s 20 of that Act the Policy is presumed to be validly made.
[12]It contains a mechanism addressing funding for dealing with stormwater quality throughout the local government area, including funding by way of contributions from developers. Its announced intention is to improve the health of one of the Shire’s natural assets – its waterways. On its face the basis for seeking contributions from developers rests upon propositions that urban development increases stormwater runoff quantity, but may decrease quality; infrastructure is necessary to deal with that runoff; and, the consequences of urban development on the Shire’s waterways are felt both locally, and regionally.
[13]FKP’s attack upon the Policy focussed upon documents which led to its development including, in particular, the Urban Stormwater Quality Management Plan for Maroochy Shire (USQMP) dated November 2002. That document contains a formula, carried through to the Policy, which FKP says wrongly imposes upon new developments a requirement to pay infrastructure charges related not only to the cost of dealing with water runoff from the particular development but, also, the cost of ‘retrofitting’ better infrastructure for that purpose in other areas of the Shire which are quite remote from the new development.
[14]The exercise undertaken by FKP’s expert witness Dr Johnson and explored in considerable detail in the appellant’s written submissions are persuasive that an effect of the Policy is to take a percentage of the Council’s capital costs for improving or expanding stormwater infrastructure in already existing and established urban areas, and average that amount across the whole Shire (irrespective of the existing or future state of development, or impact from a stormwater quality) as a basis for determining contributions to that infrastructure to be borne by new development applications.
[15]That evidence is also persuasive that a figure calculated in the course of the USQMP, and carried through to the Policy ($152.5m) is clearly directed towards addressing existing problems by improving stormwater quality infrastructure in all existing urban areas, in all fifteen water catchments within the Shire; and is not directly related to stormwater runoff or the necessary infrastructure for this particular development. In other words, the Policy is not only responsive to the impacts of new development, but is concerned with addressing impacts caused by an existing state of affairs.
[16]In particular an attack is made upon the proposition, advanced for Council, that requiring new developers to contribute to the cost of fitting or improving infrastructure in other areas or catchments is justified because the new residents in newly developed areas will likely use facilities in existing catchments. It is said, for FKP, that new residents are no different to any other persons, including those from outside the Shire, who might choose to visit retail or other facilities in the local government’s different catchment regions and there is no sound basis for imposing this burden upon them.”
- Shortly put the applicant’s submission is that the provisions of IPA pursuant to which the Council promulgated the Policy did not authorise, and do not permit, the provisions of the Policy which require the Council to recover from developers, such as the applicant, monetary contributions towards the cost of improving stormwater infrastructure in parts of the shire remote from, and not directly relevant to the particular development, in this case the Coolum Ridges Master Planned Community.
- The applicant’s proposed Notice of Appeal and submissions identify in some detail seven separate errors of law attributed to the primary judge’s reasons for concluding that the appeals should be dismissed. During argument in the course of the application for leave to appeal to this Court the errors were distilled into one: that the Policy is invalid and without lawful effect because of its contravention of, or inconsistency with, IPA.
- The focus of argument in this Court has thus become quite narrow. It turns upon the proper construction of a number of sections of IPA with a view to ascertaining whether the Policy complies with them. It is unnecessary to consider the terms of the Policy, its reasonableness or the factual background which provided its provenance. Counsel for the applicant conceded that the application must fail unless the applicant makes good its point that the Policy is invalid.
- That being so the last word on the Policy, its rationale and reasonableness, may be left to the primary judge. His Honour said:
“[28]The evidence and submissions were ultimately persuasive there was no implicit failure of principle in, or proper legal or moral objection to, the exercise undertaken in the USQMP and carried through to the Policy, based on the notion that the occupants and users of new residential estates will utilise urban infrastructure and services elsewhere in the Shire external to the new development in which they reside, and thereby contribute to pollutant loads entering the region’s waterways. Dr Johnson, FKP’s expert, fairly conceded that persons would, at least, travel through and therefore use different catchment areas for such purposes as retail, educational and leisure activities.
[29]There is nothing surprising or unusual about the notion that increasing the population of any part of the former Shire area by opening up newer urban areas will add to the people using, and therefore the pollutant loads upon, existing urban areas and their many facilities. The proposition is logical and unsurprising. Council also holds that a development which effectively attenuates water quality impacts will nevertheless have some external impacts, a proposition which is also unsurprising. Once these things are acknowledged, the Policy’s plain intention of apportioning funding for the overall trunk water quality network between the existing population and the likely future population cannot be said to be unsound, incorrect or improper.
…
[32]On any view the USQMP is a comprehensive and highly detailed document produced after extensive community consultation, surveys and the like. It contains a detailed assessment with respect to each of the 15 catchments in the Shire. Its breadth and complexity supports Council’s argument that it was sufficient to reasonably support a Policy of the type contemplated by IPA s 6.1.31 – a conclusion reinforced, here, by the fact that at the time it was adopted s 6.1.20 did not contain any particular legislative requirements for policies of this particular kind.
[33]The additional supporting information provided to Council in June 2004, based upon the USQMP, led to Council accepting recommendations for the Policy which meant that it eventually contained provisions requiring contributions calculated in accordance with the proportion in which each new development would add to the ultimate population of the shire; for Council to meet the remainder of the cost to achieve ‘shire-wide environmental values’; and, adopting a contribution rate for each planning area which was the average of those otherwise calculable for the individual catchments. This meant that new development would have some responsibility for contributing to the cost of works external to it, with the balance being funded by Council. That, I am satisfied, is what the Policy does. It shows on its face why contributions are sought and contains, in considerable detail, the purpose for which they are to be used.
…
[35]Again, however, the principle apparently underlying the Policy is that residents of new development will visit and use facilities (of, for example, a retail, commercial, educational, recreational, government and other kind) outside their particular catchment in already urbanised parts of the balance of the local government area, placing additional pollutant loads and additional demands on the water quality requirements there. The Policy on its face seeks to apportion the cost of the relevant infrastructure works across all catchments within the Shire (to ensure that none is disadvantaged) based upon the proportion that the population of new development (in respect to which contributions are sought) bears to the ultimate population of the area. That is achieved by averaging – a well understood, equitable, and appropriate means of recovering costs through a policy of this kind.
…
[37]In other words, the intention of the Policy is to properly manage the impacts of a fully developed catchment. Once that is appreciated, FKP’s criticisms become less than compelling. The various catchments within the local government area will inevitably be used, to one degree or another, by its residents, and that will involve the use of both new and existing services and facilities. It cannot, then, be reasonably said that requiring new development to contribute to costs associated with existing facilities by the method of apportionment the Policy adopts is apparently unjust or unfair; or an unreasonable imposition upon a new development; nor, a method which lacks an appropriate degree of calculation, and precision.”
- The Council made and adopted the Policy pursuant to the provisions of ch 2 Pt 1 Div 5 of IPA and, in particular, s 2.1.16. Section 2.1.19 provides that a policy must be made in accordance with the process described in Sch 3. No point arises in this case as to the due compliance with the requisite procedure. The applicant’s challenge is to the content of the policy.
- The Policy was adopted by the Council on 22 June 2005. At that date s 6.1.20 of IPA provided:
“Planning 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 the lot -
(a)the matters that were required to be specified in a local planning policy under s 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)…
(3A)…
(4)This section expires on 31 March 2006.”
- The date in subsection (4) was extended to at least 30 October 2009. The “repealed Act” referred to was the Local Government (Planning and Environment) Act 1990, s 6.2(6)(b) of which provided that the amount of any contribution required to be paid to a local government towards the cost it incurred in providing water supply or sewerage headworks upon the subdivision of land was to be determined under a local planning policy which was to:
“(i)specify the method adopted by the local government in determining the amount of any contribution … towards the cost of water supply headworks, sewerage headworks …
(ii)specify the works, structures or equipment … which the local government determines to be water supply headworks, sewerage headworks … relevant to the locality”.
The section did not mention stormwater.
- The preconditions to the application of s 6.1.20, described in subsection (1), were satisfied. The Council had an IPA planning scheme and it had prepared a planning scheme policy, the one in contention – DC 4 Stormwater Quality.
- It will be noted that the section is extremely general in its terms. The only requirement it contained was that in subsection (2): the policy must specify with respect to applications to reconfigure a lot the amount the developer had to pay for the provision of water and sewerage; and the monetary contribution to be paid in lieu of supplying land for parks. Otherwise the section appears to leave the content of planning scheme policies at large. This observation has ominous implications for the applicant’s submissions.
- Section 6.1.31 is also relevant. It provided:
“Conditions about infrastructure for applications
(1)Subsection (2) applies if -
(a)a local government is deciding a development application under a transitional planning scheme or an IPA planning scheme; and
(b)the local government has –
(i)a local planning policy about infrastructure or a planning scheme policy about infrastructure; or
(ii)…
(2)For deciding the aspect of the application relating to the local planning policy, the planning scheme policy or planning scheme provision-
(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 land, works or a contribution towards the cost of supplying infrastructure … under a policy or provision mentioned in subsection (1)(b).
(3)However -
…
(b)If the application is being decided under an IPA planning scheme, subsection (2) applies only until -
(i)31 March 2006; or
(ii)if the Minister … nominates a later day … -
the later day.
(4)…
(5)… ”
- The Minister did nominate a later day pursuant to s 6.1.31(3)(b)(ii): the date is 30 June 2010.
- The preconditions to the application of s 6.1.31 were also satisfied. The Council decided a development application under an IPA Planning Scheme and it had in place a planning scheme policy about infrastructure – the Policy. Therefore, in deciding the application for reconfiguring lots ch 5 pt 1 of IPA did not apply: nor did s 3.5.32(1)(b): and the Council could impose a condition on the development approval requiring a contribution towards the cost of supplying infrastructure under its Policy.
- It is, alas, necessary to set out the provisions excluded by s 6.1.31(2). Relevantly from ch 5 s 5.1.7 provided:
“Infrastructure Charges
(1)The infrastructure charge -
(a)…
(b)must not be more than the proportion of the establishment of cost of the network that reasonably can be apportioned to the premises for which the charge is stated.”
- Section 3.5.32(1)(b) provided:
“A condition must not –
- for infrastructure to which chapter 5, part 1 applies, or require (other than under chapter 5, part 1) –
(i)a monetary payment for the establishment, operating and maintenance costs of the infrastructure; or
- … ”
- For the sake of completeness mention should also be made of s 3.5.30 which was not excluded by s 6.1.31. The section provides that a condition must be relevant to, but not be an unreasonable imposition on, a development, or must be reasonably required in respect of the development.
- It will be appreciated that the immediate problem for the applicant’s argument is the extreme generality with which s 6.1.20 is expressed. Apart from the requirement that a planning scheme policy make provision for payment towards the cost of providing water, sewerage and parks, no restriction is put upon what a local authority may include in its planning scheme policies. The applicant complains that the policy obliges it to pay part of the cost of disposing of stormwater in areas of the shire other than its own development. The policy does do that. But there is nothing in the words of s 6.1.20 which prohibits such a requirement.
- The applicant seeks to find an implied prohibition against the inclusion in the Council’s policy of the requirement to contribute to the upgrading of stormwater infrastructure throughout the Maroochy Shire. The basis for the implication is said to be found in the provisions of IPA which dealt with infrastructure contributions levied on developers in ch 3 and prior to the enactment of ch 5 of IPA, and in the amendments made to s 6.1.20 subsequent to the adoption by the respondent of the Policy.
- To give context to the applicant’s argument it is necessary to say something about the history of the legislation. As I understood the explanation given to the court ch 5 Pt 1 was introduced by s 22 of the Integrated Planning and Other Legislation Amendment Act 2003 which came into effect by proclamation in October 2004. The purpose of the part was inter alia to establish an infrastructure funding framework that was both equitable and accountable. The framework was to be set out in an infrastructure charges schedule which should be prepared at the same time as the local authority’s priority infrastructure plan. The process of formulating the schedule was to be the same as for devising a planning scheme policy as identified in Sch 3 to IPA. Section 5.1.6 identified the “key elements” of infrastructure charges schedules. Section 5.1.7 provided, as already noted, the prohibition on charging more than the proportion of the cost of infrastructure that reasonably can be apportioned to the premises for which the charge is made.
- It was anticipated that local authorities might take considerable time to prepare their infrastructure plans and infrastructure schedules. Indeed we were told that to date only one local authority in the whole State has produced such a plan. Chapter 6 is headed “Transitional Provisions”. It appeared in IPA before the inclusion of the new ch 5 Pt 1, but its provisions apply to the new part. It allows local authorities to recoup the costs of providing infrastructure in the transitional period, and provides for the making of transitional planning schemes which would have a life of five years. The 2003 amending act added the words “under a policy or provision mentioned in sub. sec. (1)(b)” to section 6.1.31(2)(c). The amending act also added part 2 Div 3 to ch 6, but that is not of immediate relevance. Section 6.1.20 which deals with planning scheme policies for infrastructure had its own time limit, as I have noted. The thinking behind the limited duration of such schemes was, apparently, that on the expiration of the fixed period local authorities would have prepared their infrastructure plans and schedules of charges. The disappointment of that expectation led to the ministerial prolongation of the time allowed for making transitional policies.
- The applicant’s argument that one must imply into s 6.1.20 some limitation on the policy making power was, in effect, twofold. In the first place it was pointed out that the power found in ch 6 Pt 1 was transitional and that apart from the power it confers s 3.5.32 prohibited the sort of payment the Policy requires. Moreover, s 5.1.7 will prevent it once the Council prepares its priority infrastructure plan and schedule of charges. The argument is that because the Council could not have imposed the charge except in transitional policies and will not be able to do so after s 6.1.20 ceases to operate the section must be construed as containing the same prohibitions. The Council cannot, it is submitted, have more power during the operation of ch 6 Pt 1 than it had before, or will have after.
- The second aspect of the argument is that a subsequent amendment to s 6.1.20 shows that the policy making power was constrained and did not extend to permitting the Council to charge developers for costs of infrastructure remote from their developments.
- The first argument has only to be stated to be recognised as untenable. It comes down to a contention that when Parliament enacted ch 6 Pt 1 it intended, despite including s 6.1.20 and s 6.1.31, to make no change to the existing law. Those sections are to be disregarded to the extent that they provide differently to what appears in s 3.5.32 and s 5.1.7. The applicant’s argument proceeded on the basis that but for s 6.1.31(2) the Policy would have been unlawful as a contravention of that first mentioned section. The logic may be impeccable but the premise cannot be accepted. One cannot ignore s 6.1.32(2). It means what it says. Policies made in accordance with the provisions of ch 6 Pt 1 are not constrained by either s 3.5.32 or s 5.1.7.
- Gibbs CJ pointed out in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-5:
“It is an elementary and fundamental principle that the object of the court, in interpreting a statute, `is to see what is the intention expressed by the words used’; … . It is only by considering the meaning of the words used … that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say … . Of course, no part of a statute can be considered in isolation from its context – the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking `nothing remains but to give effect to the unqualified words’ … . There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake … . However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.”
- Giving s 6.1.20 and s 6.1.31 the meaning which their words appear to convey does not bring about any irrational result in this case. The terms of the Policy, as the primary judge explained, have a basis in economics and in sense and the Policy cannot be identified as an impermissible result of the power conferred by s 6.1.20. Neither is the result unjust or inconvenient. It strikes a rational balance between developer and ratepayer. There is no warrant to be found in the principles of statutory interpretation for concluding that the words of the sections do not, or should not, mean what they say. They confer a power to make a policy with respect to infrastructure charges free from the restrains found in s 3.5.32 and s 5.1.7. The inconsistency with those sections is acknowledged in IPA and resolved in favour of ch 6 Pt 1. This treatment of the inconsistency does not mean that IPA does not operate harmoniously. Its different provisions apply in different circumstances.
- It is true that the more general constraint imposed by s 3.5.30 continues to apply. It is not to be disregarded as are the other sections mentioned. Nevertheless if the Policy is valid and lawfully made it cannot be said that a condition imposed in accordance with the Policy was not relevant and reasonable. It is made so by the terms of the Policy itself. As I understood the applicant’s argument it did not contend otherwise.
- The second argument depends upon the terms of s 6.1.20 as it became subsequent to the Council’s adoption of the Policy which, it will be remembered, occurred on 22 June 2005. On 30 March 2006 s 6.1.20 was amended by the Integrated Planning and Other Legislation Amendment Act 2006. As amended the section read:
“6.1.20 Planning 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 state each of the following-
(a) a contribution (an infrastructure contribution) for each development infrastructure network identified in the policy;
(b) the estimated proportion of the establishment cost of each network to be funded by the contribution;
(c) when it is anticipated the infrastructure forming part of the network will be provided;
(d) the estimated establishment cost of the infrastructure;
(e) each area in which the contribution applies;
(f) each type of lot or use for which the contribution applies;
(g) how the contribution must be calculated for-
(i) each area mentioned in paragraph (e); and
(ii) each type of lot or use mentioned in paragraph (f).
(2A) An infrastructure contribution may apply to development infrastructure-
(a)despite section 2.1.2--that is not within, or completely within, the local government's area; or
(b) that is not owned by the local government, if the owner of the infrastructure agrees; or
(c) supplied by a local government on a State-controlled road.
(2B) The infrastructure contribution must be for a development infrastructure network that services, or is planned to service, premises and is identified in the policy.
(2C)The infrastructure contribution required under the policy may be calculated-
(a) in the way permitted under the repealed Act; or
(b) as if it were an infrastructure charge under this Act.
(2D)If a policy prepared under this section requires an infrastructure contribution for works for the local function of a State-controlled road, the contribution must be-
(a) separately accounted for; and
(b) used to provide works on a State-controlled road.
(3)However, if the local government has an infrastructure charges plan, an infrastructure charges schedule or a regulated infrastructure charges schedule, the planning scheme policy must not deal with the same matters as the infrastructure charges plan, the infrastructure charges schedule or the regulated infrastructure charges schedule.
(3A)This section applies despite section 2.1.23.
(4)This section ceases to have effect, in relation to the planning scheme, on-
(a) 30 June 2007; or
(b) if the Minister, by gazette notice, nominates a later day for the planning scheme--the later day.”
- The applicant’s argument places particular emphasis on subsection (2C):
“The infrastructure contribution required under the policy may be calculated –
- as if it were an infrastructure charge under this Act.”
The applicant submits that s 6.1.20 in its original form should be construed as though it included those additional words. Presumably the notional addendum would be included as a subdivision of subsection (2).
- The applicant finds the justification for this rather startling proposition in two principles, one little used but one quite orthodox. The first is that when construing a statute one may have regard to subsequent amendments which may assist in understanding the meaning of the act prior to amendment. Reference was made to a passage in the judgment of Dixon J in Grain Elevators Board (Vict) v Dunmunkle Corporation (1946) 73 CLR 70 at 86. His Honour said:
“Although the provision was passed too late to apply to the present case, I think that it may be considered on the question of interpretation. It would be a strange result if we were to interpret the prior legislation as giving a wider exemption than that conferred by the provision so that the express exemption it makes would prove unnecessary and the qualifications it places upon that exemption would be futile.”
- Reliance was also placed upon the judgment of the Full Federal Court in Kalwy v Secretary, Department of Social Security (1992) 38 FCR 295 in which it was observed (at 299) that the subsequent legislative history of a section of an act may confirm an interpretation of an earlier provision.
- The second principle called in aid by the applicant is the use of extrinsic materials to interpret legislation, authorised by s 14B(2) of the Acts Interpretation Act 1954. The extrinsic material in point is the explanatory note to the Act amending s 6.1.20. Relevantly the explanatory note said:
“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 the local government was able to obtain under the repealed … Act … . 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 … . Consequently, there has been a greater reliance … on local planning policies and planning scheme policies under section 6.1.20 … . 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.”
- The applicant stresses the last sentence in the quotation. It seizes upon the remark that the section in its initial form had “limited scope” and the purpose of the amended section was to widen the scope of the planning scheme policy making power conferred by the section on local authorities.
- The applicant’s argument proceeds in this way: because the amended section increased the scope of the policy making power the width of the power must be greater in the amended section than it was in the original section. The amended, wider power, relevantly restricted the infrastructure contributions required under a policy to those that could be made “as if it were an infrastructure charge under (IPA)”. Such a charge must comply with ch 5 and, in particular, s 5.1.7(1). The contribution required by the Policy offends that section. Therefore, the argument runs, the policy goes beyond what is permitted by s 6.1.20, as it must be construed, and is unlawful.
- Despite the earnestness and the great erudition with which the applicant pressed its arguments they cannot be accepted. For a start as Lord Mersey noted in Thompson v Goold and Co (1910) AC 409 at 420:
“It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is the wrong thing to do.”
The principle was applied and approved by this Court in Re JI v AV [2001] QCA 510 at [26].
- Secondly, the basic premise of the applicant’s submission is erroneous. One has only to read s 6.1.20, as it was, and as it became, to realise that the amended section did not increase the scope of the policy making power. The premise is essential to the argument which is that the initial power cannot have been intended to be wider than the altered, widened, power contained in the amendment.
- The only restriction on policy making contained in the original section is that a Policy made pursuant to it had to include provision for charging for water supply, sewerage and parks. Everything else was left to the discretion of the policy maker. By contrast, by the amendments a policy must include each of the factors identified in subsections (2), (2B) and (2D). To that extent the policy making power is constrained. The constraints are more numerous than those found in the original section. The policy making power became more circumscribed. The foundation for the applicant’s submission does not, in fact, exist.
- Thirdly, the explanatory note offers no justification at all for the retrospective inclusion of subsection (2C). In my opinion it involves a wrong reading of the note to conclude that the amendment was intended to widen the policy making powers of local authorities. The passage relied upon by the applicant, when read in context, says no more than the section is expanded to provide additional guidance to local authorities when they came to frame their policies. The “formerly limited scope” of s 6.1.20(2) does not refer to any limitation on the powers of local authorities to make policies, but to the paucity of legislative content (“scope”) evident in the original section, to guide the making of policies. The amended, expanded section, contained additional material to which local authorities could have regard, for assistance, when formulating policies.
- A fourth difficulty with the applicant’s argument is that it requires not only the inclusion of the subsequently enacted subsection (2C) but an alteration to the mood of the verb chosen by the Parliamentary draftsman. Subsection (2C) provides that an infrastructure contribution required under a policy may be calculated as if it were an infrastructure charge under IPA. To make good its argument the applicant has to substitute “must” for “may”, making the verb imperative, not subjunctive.
- There are, of course, many instances in which “may” has been construed to mean “must” but in each instance there has been some compelling consideration of text or context to require the substitution. There is no such indication in s 6.1.20. Indeed the terms of the explanatory note are an indication to the contrary. The point is that the expanded section was meant to provide guidance to local authorities when compiling their policies. The section, subject to what is said in the next paragraph, contains suggestions to be considered when undertaking that process. It does not mandate what a policy must contain but sets out subjects for possible inclusion. It is clear, therefore, that the permissive “may” was intended to have its ordinary meaning: a local authority might include in its policy such a provision, but equally it might chose not to.
- It is noteworthy that the amended s 6.1.20 itself distinguishes between what must be included in a policy and what may be. Subsection (2) commands policies to “state each of the following …”. Subsections (2A) and (2C) are permissive in their terms. Subsections (2B) and (2D) are imperative: the local authority must do certain things. The choice of language can only have been deliberate. The draftsman distinguished between what a local authority must do and what it may do. There is no indication that the draftsman made an error when using “may” in subsection (2C).
- The applicant seeks to deny the plain meaning which comes from the words of s 6.1.20 and 6.1.31. The point is made expressly in the written submissions:
“42.Fourthly, it is important to appreciate that the 3 aspects of IPA already discussed are part of a structure in the statute which is expressly interrelated. The conditions under challenge in FKP's appeals were imposed pursuant to s 6.1.31 (2). That provision (in para c) refers back to a planning scheme policy about infrastructure (ie to a policy referred to in s 6.1.20), and it then denies the operation of chapter 5 part 1 and s 3.5.32(1)(b). Were it not for those provisions, the Council would (not) have had the power to impose a condition requiring "a monetary payment for the establishment, operating and maintenance costs of the infrastructure, or ... works to be carried out for the infrastructure" (s 3.5.32(1)(b)), but such a condition would then have to satisfy the s 3.5.30(1) tests for validity. Orthodox principles of statutory construction require that any supplanting of that structure by s 6.1.20 could not authorise the creation of a policy which authorised a contribution that would not satisfy the nexus requirements of either chapter 5 part 1 or s 3.5.30 of IPA.”
- The bald proposition is that s 6.1.20 and s 6.1.31 cannot mean what they say because they allow the imposition of financial obligations on developers which are not permitted by other sections of IPA. Contrary to the applicant’s protestation it is a completely orthodox approach to statutory interpretation to read different sections as having a different operation in the different circumstances in which the act states they are to apply.
- The applicant emphasised what was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2. The point made by the High Court was a constant refrain in the applicant’s submissions. Their Honours said:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute … . In Commissioner for Railways … v Agalianos … Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed… . A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals … . Where conflict appears to arise from a language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions … . Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which is the subordinate provision, and which must give way to the other’ … .”
- The applicant seeks to find in the generality of s 6.1.20 and the specific prohibition expressed in s 3.5.32 and s 5.1.7 a contradiction or inconsistency which must be resolved “harmoniously”. That is to be achieved, the applicant argues, by reading into s 6.1.20 the prohibitions found in the other sections.
- This approach overlooks that IPA itself has determined how the conflict between the sections is to be resolved. The task of determining which is “the leading provision and which the subordinate provision” is made simple by the express terms of s 6.1.31(2).
- The terms of a Policy made pursuant to s 6.1.20 are not caught by the prohibition which s 5.1.7 applies to infrastructure plans made pursuant to ch 5 Pt 1. Nor is such a policy caught by the regime found in ch 3 for imposing conditions on development. The various chapters operate according to their terms on the circumstances to which IPA makes them applicable. The fact that the terms differ according to the circumstances does not make the legislation inconsistent or cacophonous.
- In any event, as I have said, the legislation expressly identifies the hierarchy of sections.
- The applicant can only succeed if s 6.1.20 as it existed when the Council adopted its Policy is radically altered by the addition of words which do not appear in it, and by denying s 6.1.31 its express meaning. In my opinion the applicant’s invitation to approach IPA in that way should be declined.
- A further point must be mentioned briefly. It was not advanced in oral submission by the applicant and was not addressed to the Planning and Environment Court. The point is that s 6.1.20 did not confer power upon the Council to make its Policy. The argument relies upon an obiter dicta of Fryberg J in Hervey Bay City Council v BGM Projects Pty Ltd (2007) 154 LGERA 330. His Honour (at para 41) expressed “considerable doubt” about the power the City Council had to make a policy for calculating infrastructure charges for transport infrastructure because:
“… of difficulty in identifying any provision in (IPA) conferring power to make (such) a policy …”.
The section in question was 6.1.20 in the form with which this application is concerned. Fryberg J went on (para 48):
“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 … such a policy could include provision for calculating contributions payable by developers in respect of water supply and sewerage works … parks … . 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.”
- Notwithstanding these doubts his Honour thought the point should not be determined. Neither McMurdo P nor Philippides J who together with Fryberg J constituted the court gave their assent to the doubt.
- In my respectful opinion the doubt is unfounded. It is true that s 6.1.20 is sparse in content and does not expressly confer a policy making power with respect to infrastructure. It is however, in my opinion, inescapable that the section is predicated upon there being such a power. The section would make no sense if there were no such power. Section 6.1.31 is also predicated upon the existence of such a power and would be otiose without it. Moreover and more relevantly as the Council’s submissions point out, the policy making power is contained within ch 2 pt 1 div 5 and sch 3 to which reference has been made already.
- The applicant’s challenge to the validity of the Policy fails. That being the only point in the applications there is no reason why leave to appeal should be given even though the arguments that would arise on an appeal were advanced in full. In both applications leave to appeal should be refused, with costs.