Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd
[2010] QCA 269
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd[2010] QCA 269
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Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd[2010] QCA 269
Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd[2010] QCA 269
SUPREME COURT OF QUEENSLAND
PARTIES: | ARC HOLDINGS (AUST) PTY LTD |
FILE NO/S: | SC No 9189 of 2005 |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 8 October 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 June 2010 |
JUDGES: | Fraser and Chesterman and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed with costs |
CATCHWORDS: | CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where the appellant entered into a contract to buy land from the first respondent – where the second respondent was the first respondent’s real estate agent – where the appellant purported to terminate the contract pursuant to s 367 of the Property Agents and Motor Dealers Act 2000 (Qld) (“PAMDA”) on the ground that the contract did not include the warning statement required by s 366 – where the appellant sought a declaration that it had validly terminated the contract – where the primary judge found that the appellant was not entitled to terminate the contract as s 366 did not apply as the land was not “residential property” within the meaning of s 17 of PAMDA – whether the primary judge erred in holding that the land was not in an area for “residential purposes” – whether in determining that the land was not “residential property” the primary judge erred in his interpretation of s 17 – whether the primary judge erred in failing to consider the term “future residential purposes” in the definition of “residential purposes” in s 17(4) in determining whether the land was in a “residential area” for the purposes of s 17(1) of PAMDA Acts Interpretation Act 1954 (Qld) s 14A(1), s 32A Integrated Planning Act 1997 (Qld) (repealed), s 2.1.23(2) Property Agents and Motor Dealers Act 2000 (Qld), s 10(1), s 10(2), s 17, s 17(1)(b), s 17(2), s 17(4), s 364, s 366, s 367 APM Property 3 Pty Ltd v Blondeau & Ors [2009] QSC 326, applied Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd and Reppals (1)Pty Ltd t/as Main Commercial First National [2009] QSC 374, related Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47, applied Conde v Gilfoyle & Anor [2010] QCA 109, cited Fletcher Construction Australia Ltd v Southside Tower Developments Pty Ltd, unreported, Byrne J, Supreme Court of Victoria, No 6668 of 1996, 9 October 1996, considered Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261, cited Hedley Commercial Property Services P/L v BRCP Oasis Land P/L [2010] 1 Qd R 439; [2009] QCA 231, cited Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; [1984] HCA 55, cited Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, cited Tolocorp Pty Ltd v Noosa Shire Council & Anor (2007) 150 LGERA 303; [2007] QCA 33, cited |
COUNSEL: | D R Gore QC, with R W Frigo, for the appellant J A Griffin QC, with P J Woods, for the first respondent G Gibson QC, with D O'Brien, for the second respondent |
SOLICITORS: | Delaneys Lawyers for the appellant JHL Lawyers for the first respondent Carter Newell Lawyers for the second respondent |
[1] FRASER JA: By a contract dated 17 December 2004 the appellant (“Arc”) agreed to buy a three hectare block of land at 24 Gooding Drive, Merrimac (“the Land”) from the first respondent (“Riana”) for five million dollars. The second respondent (“Reppals”) acted as Riana’s real estate agent in relation to that contract. The date for settlement of the contract was 26 August 2005. On that date Arc purported to terminate the contract pursuant to s 367 of the Property Agents and Motor Dealers Act 2000 (Qld) (“PAMDA”) on the ground that the contract did not have attached as the first or top sheet the warning statement required by s 366 of PAMDA. Riana denied that Arc had validly terminated the contract.
[2] Arc subsequently issued proceedings in the trial division claiming a declaration that it had validly terminated the contract, the return of a deposit of $250,000.00 it had paid pursuant to the contract, and $332,352.71 as compensation pursuant to PAMDA. Following a trial of separate issues concerning the validity of Arc’s purported termination of the contract and its entitlement to the return of the deposit, the trial judge determined that Arc was not entitled to terminate the contract and that Riana was therefore entitled to treat Arc’s purported termination as a breach of contract and to have the deposit forfeited.[1] On 10 March 2010 the trial judge made consequential orders dismissing Arc’s claim and entering judgment against it with costs.
[3] The ground upon which the trial judge found against Arc was that s 366 did not apply in relation to the contract because the Land was not “residential property”.[2] Section 366 applies only if a proposed contract is a “relevant contract”. That term is defined in s 364 to mean a contract for the sale of “residential property” in Queensland, other than a contract formed on a sale by auction.
[4] “Residential Property” is defined in s 17 of PAMDA:[3]
“(1) Property is “residential property” if the property is –
(a) a single parcel of land on which a place of residence is constructed or being constructed; or
(b) a single parcel of vacant land in a residential area.
(2) Without limiting subsection (1), property is “residential property” if the property is any of the following lots that is a place of residence or in a residential area –
(a) a lot included in a community titles scheme, or proposed to be included in a community titles scheme, under the Body Corporate and Community Management Act 1997;
(b) a lot or proposed lot under the Building Units and Group Titles Act 1980;
(c) a lot shown on a leasehold building units plan registered or to be registered under the South Bank Corporation Act 1989.
(3)Despite subsections (1) and (2), the following property is not “residential property” –
(a) a single parcel of land on which a place of residence is constructed or being constructed if the property is used substantially for the purposes of industry, commerce or primary production;
(b) a single parcel of vacant land, if the property –
(i) is in a non-residential area; or
(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; or
(iii) is used substantially for the purposes of industry, commerce or primary production.
(4) In this section –
“development” see the Integrated Planning Act 1997, section 1.3.2.
“non-residential area” means an area other than a residential area.
“planning scheme” see the Integrated Planning Act 1997, section 2.1.1.
“residential area” means 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.
“vacant land” means land on which there are no structural improvements, other than fencing.”
[5] The Land was a single parcel of vacant land and it was not within s 17(2) so that it could only constitute “residential property” if, in terms of s 17(1)(b), it was “in a residential area”. The definition of “residential area” in s 17(4) directed attention to the applicable planning scheme at the time the contract was made, which was the Gold Coast City Council Planning Scheme 2003 version 1.0 (the “Planning Scheme”).
[6] At the trial Arc argued that the Land was in a “residential area” because it fell within an area marked “Urban Residential” on the Planning Scheme “Planning Strategy Map PS-1”. That was a large scale, colour coded map of the whole of the Gold Coast City Council area which depicted the “pattern of the Land Use Themes” for the City of Gold Coast as a “broad indication of the type of activities and development envisaged for distinct parts of the City in order to achieve the Desired Environmental Outcomes… and the intent of the Planning Strategy”.[4] The trial judge rejected that argument. It was not possible to determine from the large scale map whether the Land fell inside or outside the Urban Residential Land Use Theme and the Land Use Themes provided only a broad spatial expression of the main initiatives encompassed by the Planning Scheme and were not determinative of whether particular localities were “for” residential purposes.[5] At the hearing of the appeal Arc abandoned the challenge to that conclusion in ground (i) of its notice of appeal.
[7] Arc also argued at trial that the Land was in a “residential area” because it fell within the Planning Scheme Domain Maps Worongary 21 and 22. The Land occupied an area depicted in green on those Domain Maps. A legend related that colour to the “Private Open Space Domain”. Arc argued that under the Planning Scheme the area within the Private Open Space Domain was an area “for residential purposes” within the definition of “residential area” in s 17(4).
[8] The trial judge explained the significance of domains in the Planning Scheme in the following passage:
“[27]The Planning Scheme describes 18 domains. Their purpose is stated as follows [Planning Scheme Part 5 Div 1 Chap 1]:
“The purpose of the domains is to signal that the City is divided into land units with common characteristics, for the purpose of land use and development control. The term “domain” is introduced to identify those areas of the City with a particular use mix or development character (or that have potential in this context) that will benefit from the application of consistent planning guidance and development control.
Domains provide for the distribution, mixing and segregation of different types of development. Each domain is intended to provide for compatible development within identified parts of the City and to segregate incompatible development. Importantly, each domain is intended to include planning measures to achieve the Planning Scheme’s Desired Environmental Outcomes (DEOs).”
[28]The 18 domains described in the Planning Scheme apply to land identified on the domain maps. The section of the Planning Scheme describing the application of the domains states.
“The inclusion of land in a particular domain, under the provisions of this Planning Scheme, does not imply that part or all of such land is capable of being subdivided or is suitable for subdivision for developments permitted by this Planning Scheme.”
…
[34]The Planning Scheme relevantly explains [Planning Scheme Part 5 Div 1 Chap 1 Cl 4] that the domains are closely related to the Land Use Themes, that the domains implement, through effective planning measures, the purpose of each Land Use Theme, that in this sense, the domains have evolved from the planning measures developed to implement the intent of Gold Coast City Planning Scheme, and that the domains are the key to the assessment status of individual development proposals within their subject areas.
[35]The Planning Scheme contains a table which sets out the relationship of the Land Use Themes, and their planning measures, through the 18 domains of the Planning Scheme. That table refers to the Private Open Space Domain (Chapter 16, under the column headed “Directly Relevant Land Use Theme/s”) and specifies the following directly relevant land use themes:
1.Open Space/Nature Conservation; and
2.Urban Residential.”
[9] After noting that the Planning Scheme provided that each domain contained an “Intent Statement” which set out the primary objectives for the Planning Scheme for the land included within that domain, the trial judge observed that the statement of planning intended for development in the Private Open Space Domain provided for “regulation of private open space areas of the Gold Coast for recreation purposes”.[6] For example “golf course facilities” and it went on to state that the domain applied to land intended to be used for “resort open space or for commercial recreational facilities that are predominately, but not exclusively, maintained as open space.”[7]
[10] The trial judge held that although residential development was one of the purposes that was possible within the Private Open Space Domain that was insufficient to justify the conclusion that it identified an area “for” residential purposes.[8] The trial judge’s reasons for that conclusion are encapsulated in the following passage:
“[39]The first defendant referred to the fact that, in assessing applications for impact assessable development, the Assessment Manager (in this case, the Gold Coast City Council) is required to consider, amongst other things, the intent of the Private Open Space Domain.
[40]It was argued that while some forms of residential development are envisaged as Impact Assessable Development within the Private Open Space Domain, an assessment of such a proposal against planning provisions would ensure that the domain retained its character as a predominately open space. Therefore, it would reasonably be expected to occupy a small part of the site, with the main use of the site being for open space.
[41]Viewed as a whole, the Planning Scheme does not prohibit residential development in any of the domains of the City of Gold Coast. I accept the first and second defendants’ submission that PAMDA should not be interpreted to mean that, merely because residential development is possible within a domain, it satisfies the definition of “residential property” for the purposes of PAMDA. Such a construction would lead to an interpretation where by the entirety of the City of Gold Coast would be treated as a “residential area”.
[42]Having regard to the stated intent of the Private Open Space Domain, and notwithstanding that residential development is possible within that domain, I do not think it can properly be said that the fact that the Land is depicted on the Domain Maps as falling within the Private Open Space Domain means that it is land identified on a map in a planning scheme as “for” residential purposes.
[43]It was asserted that there should not be any differentiation between the domains on the basis that some make specific reference to residential development while others do not. Rather, that the touchstone is what appears on the planning map. I accept this proposition.”
[11] The trial judge therefore held that the Land was not “residential property”, with the result that Arc’s purported termination of the contract was ineffective.
Appeal Grounds (ii) and (iii):
(ii) The learned Judge erred in finding that, although the subject land is identified on Domain Maps Worongary 21 and 22 as contained in the “Private Open Space” domain, it is not an area for “residential purposes”; and
(iii) Having found that residential development is possible within the “Private Open Space” domain, the learned Judge erred in his interpretation of s. 17 of the Property Agents and Motor Dealers Act 2000 (Qld) such as to determine that the land was not “residential property”.
[12] Under appeal grounds (ii) and (iii), Arc argued that examination of the Planning Scheme as a whole demonstrated that residential development was “appropriate” or “otherwise favoured” in the Private Open Space Domain so that, upon the proper construction of PAMDA, the Land was in a “residential area” as defined in s 17(4) and thus “residential property” within s 17(1)(b). Any other conclusion would be “curious” in light of the fact that the parties’ contract and a planning permit identified in it in terms contemplated that the Land would in fact be used for residential purposes. Arc argued that reference to the Planning Scheme as a whole was permissible. It was appropriate to refer to the provisions which allowed for residential purposes in the Private Open Space Domain after impact assessment and also to the fact that a permit had been granted for that purpose. Arc argued that this construction was consistent with the consumer protection purposes of the legislation and that those purposes were best advanced if the warning statement that sought to protect vulnerable and unwary purchasers of residential property was required to be given to a larger audience of consumers.
[13] As to the last point, it is unquestionable that the interpretation of PAMDA that will best achieve the purpose of the Act is to be preferred to any other interpretation,[9] but the related rule that remedial provisions should be beneficially construed is restrained by the requirement that the construction must fall within the confines of “the actual language employed” and what is “fairly open” on the words used.[10] Section 10(1) of PAMDA expresses as its main object the provision of a system for licensing and regulating persons, in various capacities stated in the Act, “that achieves an appropriate balance between – (a) the need to regulate for the protection of consumers; and (b) the need to promote freedom of enterprise in the market place”.[11] Section 10(2) goes on to provide that another significant object, “is to provide a way of protecting consumers against particular undesirable practices associated with the promotion of residential property.” These provisions make it clear that, as Gleeson CJ observed of the legislation considered in Carr v Western Australia,[12] whilst the general purpose of the legislation is reasonably clear, it reflects a political compromise and the question relevant in the construction exercise is how far the legislation goes in pursuit of its purpose or object. In that respect, the extent of the audience of consumers intended to be protected by the relevant provisions in PAMDA is relevantly defined by s 363. It provides that the purposes of Chapter 11, which includes the provisions Arc invoked to terminate the contract, are:[13]
“(a)to give persons who enter into relevant contracts a cooling-off period; and
(b) to require all relevant contracts for the sale of residential property in Queensland to include consumer protection information, including a statement that a relevant contract is subject to a cooling-off period; and
(c) to enhance consumer protection for buyers of residential property by ensuring, as far as practicable, the independence of lawyers acting for buyers.”
[14] Paragraph (a) and (b) are the relevant provisions. The expression of the purpose in s 363(b) makes it clear that the intention is to protect only those buyers who enter into “relevant contracts”. The definition of that term directs the reader to the definition of “residential property” in s 17(1), which in turn directs attention to the definition of “residential area” in s 17(4). It is right to bear in mind the consumer protection purposes, but the text of the definitions must be the starting point for determining the breadth of the class of persons intended to be benefited by those provisions.
[15] In my opinion the construction propounded for Arc should be rejected. It requires too substantial a departure from the statutory text by requiring reference to the parties’ contractual intention and to a permit granted under a planning scheme, by requiring analysis of the Planning Scheme as a whole, and by defining the test as being whether residential development was “appropriate” or “otherwise favoured”.
[16] The trial judge was plainly right to ignore the contractual provisions and the planning permit referred to in those provisions. Arc pointed out that reference to a local government approval is permissible under s 17(3)(b)(ii), but that does not imply that it is also permissible under s 17(1)(b): if that has any bearing upon the issue at all, the omission of any similar reference in s 17(1)(b) suggests that it does not contemplate reference to any local government approval. There is no indication in the text or the context that the definition of “residential area” in s 17(4) is inapplicable under s 17(1)(b).[14] It would be inconsistent with the ordinary meaning of the word “means” in that definition and with the structure of s 17 to construe that definition as allowing reference to matters not comprehended by its terms. The suggested curiosity of the result that a statute which was designed to protect the interests of purchasers of residential land does not apply, even though a permit and the contract identified the relevant land as being intended for residential purposes, does not justify defiance of the statutory text. For the purpose of determining whether a single parcel of vacant land is “residential property”, the legislation eschewed reference to the parties’ contractual intention, or other evidence of the intended use of land, in favour of identification on a planning scheme map. It is that quite distinct test which must be applied.
[17] Further, the question is not whether the Planning Scheme “as a whole” identifies the relevant parcel of vacant land as being in an area for residential purposes. To frame the question in that way is to overlook the words “an area identified on a map in” within the definition of “residential area” in s 17(4). These provisions must be construed in light of the regulatory framework in force when PAMDA was enacted. That included the familiar planning scheme maps which, consistently with the Integrated Planning Act 1997 (Qld) (since repealed) then in force, divided up local government areas into discrete areas or “zones” (called “domains” in this Planning Scheme) according to intended uses and specified levels of assessment for uses in those discrete areas. Section 17 of PAMDA adopted the simple solution of referring to planning purposes identified by areas on planning scheme maps. The solution favoured simplicity over precision in the ascertainment of the character of the likely use of the particular land. As Riana and Reppals argued, the words “an area identified on a map in” were presumably intended to provide a simpler criterion of application than would be the case if vendors and real estate agents were required to study and attempt to interpret the minutiae of planning schemes. The inevitable result is that there will be occasions where land which is in fact destined for residential use will not fall within the statutory definition, but that was presumably justified on policy grounds. Every consideration points to adoption of the natural meaning of s 17(1)(b), read with the definition of “residential area” in s 17(4), under which the test is whether a planning scheme map identifies the area of the Land as being an area “for” residential purposes, meaning an area intended for those purposes.
[18] It does not follow, however, that s 17 confines reference only to planning scheme maps. In some cases the non-residential or residential character of an area will be conclusively established by a description on a planning scheme map so that no further examination of the scheme will be required or permissible. In this case, for example, the domain descriptions in the maps’ legend as “Detached Dwelling” and “Residential Choice” made it plain that land within those domains was intended for residential purposes. In other cases the descriptions in the map of the relevant areas will make the task more difficult. Where the residential or non-residential character of the intended purposes of the relevant area does not clearly appear from the map itself, reference to other text is permissible for the purpose of elucidating what the map reveals about the residential or non-residential character of the intended purposes. This is such a case. Domain Maps Worongary 21 and 22 conveyed only that the Land was within the “Private Open Space Domain”. That description communicated insufficient information to determine whether or not those maps identified that Domain as being intended for residential purposes. It was therefore legitimate to refer to the text of the Planning Scheme to elucidate that description of the purposes of the domain.
[19] A general provision about domains in the Planning Scheme, which was expressed to “provide guidance on the operation of the domains in the Planning Scheme”,[15] provided that, “Each domain contains an intent statement which sets out the primary objectives of this Planning Scheme for the land that is included within the particular domain”.[16] The “Intent Statement” for the Private Open Space Domain, which the trial judge summarised in the terms quoted in paragraph 9 of these reasons, plainly established that the description “Private Open Space Domain” in the relevant maps identified non-residential purposes as the only intended purposes for the Land.
[20] Arc referred to other provisions in the Planning Scheme in support of its argument that residential development was “appropriate” or “otherwise favoured”. Arc emphasised a general provision concerning domains, which provided that all uses included in Section A of the Table of Development may be considered as appropriate for the domain to which the Table of Development applies subject to each use meeting the “relevant assessment criteria”,[17] and a provision specifically concerning the Private Open Space Domain which provided that the level of assessment for development in that domain for “apartment”, “attached dwelling” and “detached dwelling” was impact assessment.[18] In addition, Arc contrasted the latter provision with analogous provisions for other domains in support of the proposition that residential development was appropriate or favoured in the Private Open Space Domain. In my respectful opinion this is not a relevant analysis. In the context of the clear identification in the intent statement for the “Private Open Space Domain” of what that term on the maps conveyed about the character of the intended uses, s 17 did not authorise the analysis of provisions of the kind upon which Arc relied. Reference to provisions concerning the assessment of applications for residential uses in the area and other provisions which were submitted to indicate that residential uses were “appropriate” or “otherwise favoured” uses in the domain could not detract from the conclusion that the maps’ references to Private Open Space Domain identified that area as being intended for non-residential purposes.
[21] In support of a broader analysis of the Planning Scheme Arc cited Tolocorp Pty Ltd v Noosa Shire Council & Anor,[19] Hedley Commercial Property Services Pty Ltd vBRCP Oasis Land Pty Ltd in the trial division[20] and in this Court,[21] and APM Property 3 Pty Ltd v Blondeau & Ors.[22]
[22] The relevant statement in Fryberg J’s reasons in this Court’s decision in Tolocorp Pty Ltd v Noosa Shire Council & Anor did not concern this issue.[23] The statutory provision in issue in that case did not refer to identification on a scheme map. It posed the different test whether a particular kind of subdivision was “for rural residential purposes on land zoned for rural residential purposes”.[24] His Honour’s later decision in Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd is opposed to Arc’s contention. Fryberg J there held that it was legitimate to refer to the text of a planning scheme to identify what was meant by the words “Tourist and Residential” in a legend on the relevant map.[25] In the subsequent appeal, Chesterman JA, with whose reasons McMurdo P and Dutney J agreed, observed that the relevant lot was “within the area designated on a map in the planning scheme…as “tourist and residential”,” and that the parties had agreed, and the primary judge had found that the relevant lot “conformably with the planning scheme, could be used for tourist purposes or residential purposes and that, therefore, the lot was within a residential area”.[26] The present question was not in issue in that appeal, which instead raised the question whether the effect of s17(3)(b)(ii) was that the subject property was “not residential property”. I do not construe Chesterman JA’s reasons as sanctioning the extensive analysis of assessment provisions and other provisions in planning schemes for which Arc contended.
[23] Arc referred to the following passage in the judgment of Mullins J in APM Property3 Pty Ltd v Blondeau & Ors: [27]
“[65]The respondents rely on the meaning given to “residential property” in s 17(2) that property is residential property if the property is a proposed lot to be included in a CTS under the BCCMA and is in a residential area. Under s 17(4) “residential area” is defined to mean an area identified on a map in a planning scheme as an area for residential purposes. In reliance on Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261 (Hedley) at [12], the respondents submitted that it is sufficient if the permissible uses under the relevant planning scheme include residential activities. In Hedley, the relevant plan indicated two preferred dominant land uses for the subject land of residential use and tourist use and it was held that the term “residential area” could apply to either of the two preferred dominant land uses. (The decision in Hedley was based on the exclusion from the definition of “residential property” found in s 17(3), as was the decision on the appeal: [2009] QCA 231.)
[66]In analysing the relevant requirements of the Brisbane City Plan 2000 and the City Centre Neighbourhood Plan, it is clear that residential uses for Lot 2 would be generally inappropriate development or unlikely development of Lot 2. In fact, the applicant had obtained from the Council on 15 December 2006 in respect of a development application for Lot 2 preliminary approval to carry out building work and a development permit for Centre Activities (Shop, Office and Restaurant). The theoretical possibility of obtaining an approval for residential purposes via a multi-unit dwelling or a single unit dwelling (which was not contemplated by the applicant or the respondents) is not sufficient to characterise Lot 2 as an area identified on a map in a planning scheme as an area for residential purposes.”
[24] I would respectfully endorse Mullins J’s emphasis upon the question whether the map identified the relevant land as being in an area for residential purposes. That decision is also opposed to Arc’s contention that it is permissible to refer to this Planning Scheme as a whole for the purpose of ascertaining whether residential use, though subsidiary to the express statement of intended uses, is “appropriate” or “otherwise favoured”. The extent of the necessary reference to the text of a planning scheme must depend upon the particular scheme but where, as here, the meaning of the relevant area description on the scheme map is clearly expressed in a statement of intent there can be no necessity for any more complex analysis.
[25] There are two related construction questions. The first concerns the content of the requirement in the definition of “residential area” that the scheme map identify the area as being “for” residential purposes. The limitation of the permissible reference under s 17(1)(b) to planning scheme maps, and to the text of the schemes only for the purpose of ascertaining what the maps indicate about the residential character of land, may limit the scope for contention about this issue but it will not eliminate it. One origin of the difficulty will already be apparent: local government planning schemes are not required to describe discrete areas either by the term “residential purposes” or by any equivalent term. Another difficulty is that planning schemes may identify more than one purpose as the intended purpose of a particular area. Furthermore, local government planning schemes generally may not lawfully prohibit the residential use of privately owned land in any area.[28] The trial judge’s statement that the Planning Scheme did not prohibit residential development in any of the domains of the City of Gold Coast reflected the latter aspect of the regulatory context.[29] As his Honour observed, PAMDA should not be interpreted to mean that merely because a residential development is “possible” within the domain it satisfied the definition of “residential property” for the purposes of PAMDA. Such a construction would produce the absurd result that all privately owned land on the Gold Coast was “residential property”.
[26] Arc referred to the statement by Fryberg J in Tolocorp Pty Ltd v Noosa Shire Council & Anor that, “land may be said to be allocated as part of an area for particular purposes if on reading the planning scheme as a whole it appears that the intent of the scheme is to favour the use of the (land or area) for those purposes”.[30] As I mentioned earlier, however, there was a significant difference between the statutory text in issue in that case and s 17 of PAMDA. The particular question which arises here was not an issue in Tolocorp. It was not discussed by the other members of the Court. Subsequently, in Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd,[31] Fryberg J held that where a map identified two preferred dominant uses, it was sufficient for application of this part of the definition, in that case, to identify “residential purposes” as referring to “either of the two preferred dominant land uses”. In a footnote his Honour wrote: “Compare Tolocorp Pty Ltd v Noosa Shire Council [2007] QCA 33 at [73]”. That way of expressing the test, emphasised by his Honour’s comparison with the different test expressed in relation to the different provision in issue in Tolocorp, does not support Arc’s contention that it was sufficient if residential development was “appropriate” or “otherwise favoured” in the “Private Open Space” Domain. (This Court did not consider the present question in the appeal from Fryberg J’s decision in Hedley.)[32]
[27] Arc relied also on the passage in the judgment of Mullins J in APM Property 3 Pty Ltd v Blondeau & Ors[33] quoted earlier in these reasons. The reference to “generally inappropriate development or unlikely development” was sufficient to explain the decision in that case. Mullins J did not hold that land was “residential property” if residential purposes were “appropriate” or “likely”.
[28] A similar issue arose in Fletcher Construction Australia Ltd v Southside Tower Developments Pty Ltd.[34] The question in that case was whether a particular proceeding arose wholly or predominantly from “a domestic building dispute”. The definition of the term referred to a disputed claim arising between a building owner and a builder in relation to a “domestic building contract” or the carrying out of “domestic building work”.[35] The definition of “domestic building work” included a requirement, for the subject work, that it involve the construction or erection of a building on land “that is zoned for residential purposes under a planning scheme”. There was in fact no zone under any planning scheme which was in terms a “zone for residential purpose” and that was not a term of art among town planners. After referring to contextual matters which have no counterpart here, Byrne J said:[36]
“What appears to be intended is that the Act should apply to work of a non-residential character but which is carried out on land which itself has a residential character. It has sought to identify this land by reference to its zoning. Although the Act refers to the Planning and Environment Act 1987 it is not itself a planning statute. It may be taken, therefore, that the expression “zoned for residential purposes” is not to be read in a technical sense. It is common enough to hear in ordinary speech reference to “a Residential Zone” or to “land zoned Residential”. Such an expression in common speech is a reference to those zones which have long been called “Residential” of one kind or another in planning schemes notwithstanding that other uses may be permitted and notwithstanding that residential uses may be permitted in other zones. To my mind this is the meaning which should be given to “zoned for residential purposes” in para(e). So understood, the drafter’s use of the words “purposes” in the expression “residential purposes” assumes some significance. It shows an awareness that different sorts of residential uses are contemplated in planning schemes, hence the plural “purposes”. It does not contemplate land which is zoned for residential and non-residential purposes. It must be zoned for residential purposes, allowing for the possibility that some other use of an ancillary or a subsidiary nature may also be provided for. The requirement of para(e) is therefore satisfied only where residential use or uses of the land are the principal or predominant purpose for land use permitted by the zone.”
[29] The definitions in s 17 of PAMDA convey a similar concept, but that concept was expanded by the definition of “residential purposes” as including rural and future residential purposes. The purposes of PAMDA also differ from those of the legislation Byrne J analysed. Riana and Repalls also referred to the statement by Keane JA (as his Honour then was) in Pearson v Thuringowa City Council[37] that “a building is being used for “residential purposes”[38] when the primary use of the building” is for purposes normally undertaken in a dwelling. The issues in that appeal focussed upon the construction of the term “residential purposes” and the application of that construction to the facts rather than the meaning of “for”, but the decision is also opposed to Arc’s construction.
[30] In my opinion a construction under which residential use must be indicated as the principal, primary, or predominant use goes too far in excluding a great many cases from PAMDA’s intended protection where the subject land is in fact intended to be used for a residence. The commercial inconvenience of applying the consumer protection provisions in cases where the subject land might in fact be intended for non-residential uses must be taken into account, but in light of the contextual matters identified earlier the likely statutory intention appears to be that a “residential area” is a discrete area, such as a “zone” or a “domain”, identified on a planning scheme map as an area where a residential use is the preferred primary use or one of the preferred dominant uses of the land.
[31] For these reasons, upon the proper construction of s 17(1)(b) a single parcel of vacant land is “residential property” if a planning scheme map identifies that land as an area in which residential use is the preferred primary use or one of the preferred dominant uses of the land. On that construction Arc cannot establish the errors for which it contended in the present grounds of appeal.
[32] Arc opposed one aspect of that construction by a further argument which it had not presented at the trial. It argued that, even if the Private Open Space Domain was not itself a residential area the Land was in a wider residential area, which included the adjacent or surrounding Detached Dwelling Domain. (It was uncontroversial that the Detached Dwelling Domain was indicated by the Planning Scheme maps as being an area intended for residential purposes.) There is room for that argument upon a purely literal construction but it encounters the difficulty that Arc was unable to identify any criterion by which the scope of the wider area might be determined. The apparent limits of the wider area would range between the domain and the whole local government area. That would be unworkable in practice. It is the land sold under a relevant contract which is the focus of the statutory definitions, not surrounding or adjacent land. In my opinion the relevant “area” is that which a planning scheme map adopts as the most precise indication of the residential or non-residential character of the purposes intended for the subject land. Under this planning scheme that is the Private Open Space Domain depicted on the Planning Scheme maps. In light of the intent statement for that domain it is clear that the relevant map identified the Land as being in an area intended for non-residential purposes.
[33] The trial judge did not make either of the errors contended for in grounds (ii) and (iii) of the appeal.
Appeal Ground (iv): The learned Judge erred in failing to give any or adequate reasoning as to the application and meaning of the term “residential purposes” as found in s. 17(4) of the Property Agents and Motor Dealers Act 2000 (Qld), in that, an area is also identified for “residential purposes” if it is identified for residential purposes in the future.
[34] Under this ground of appeal Arc argued that the reference to “future residential purposes” in the definition of “residential purposes” in s 17(4) of PAMDA put it beyond doubt that the Land was in a “residential area” for the purposes of s 17(1), for these reasons: although impact assessment was required before the Land could be used for residential purposes, the relevant domain maps identified the Land as being in an area in which residential development was an “appropriate” use, whether that be now or in the future; under the Planning Scheme a directly relevant “Land Use Theme” in the Private Open Space Domain is “Urban Residential”;[39] the Planning Scheme therefore envisaged that residential development was an appropriate use within the Domain, whether that be now or in the future, there being a clear statement of that planning intent;[40] the fact that a development approval attached to the Land contemplated and approved of residential development was convincing evidence that the Land was identified for “residential purposes” which, by definition, included “future residential purposes”; and that if the Land was not identified for current residential development that did not matter because it was identified for residential purposes in the future.
[35] The argument should be rejected. The reference in the definition of “residential purposes” to “future residential purposes” did not dispense with the requirement in the definition of “residential area” that the planning scheme map identify the subject land as an area “for” the defined purpose. The reasons set out under the previous heading explain my conclusion that the relevant Planning Scheme maps did not identify the Land within the Private Open Space Domain as an area intended for residential purposes, either present or future.
Proposed Order
[36] The appeal should be dismissed with costs.
[37] CHESTERMAN JA: I agree that the appeal should be dismissed with costs for the reasons given by Fraser JA.
[38] WHITE JA: I have read the reasons of Fraser JA and agree with his Honour’s orders for the reasons which he gives.
Footnotes
[1] Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd and Reppals (1) Pty Ltd t/as Main Commercial First National [2009] QSC 374.
[2] Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd and Reppals (1) Pty Ltd t/as Main Commercial First National [2009] QSC 374 at [44].
[3] Reprint No. 2E, as in force on 1 July 2004.
[4] Gold Coast City Council Planning Scheme 2003, Version 1.0, Part 3, Division 3, Chapter 1.
[5] Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd and Reppals (1) Pty Ltd t/as Main Commercial First National [2009] QSC 374 at [44] point 2.
[6] Gold Coast City Council Planning Scheme 2003, Version 1.0, Part 5, Division 1, Chapter 2.
[7] Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd and Reppals (1) Pty Ltd t/as Main Commercial First National [2009] QSC 374 at [38], with reference to Gold Coast City Council Planning Scheme 2003, Version 1.0, Part 5, Division 1, Chapter 2, at paragraph 2.0.
[8] Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd and Reppals (1) Pty Ltd t/as Main Commercial First National [2009] QSC 374 at [44] point 1.
[9] Acts Interpretation Act 1954 (Qld) s 14A(1).
[10] Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638 per Mason, Brennan, Deane and Dawson JJ.
[11] PAMDA, s 10(1).
[12] (2007) 232 CLR 138 at 143, paragraph [7].
[13] As per Reprint No. 2E, as in force on 1 July 2004.
[14] C.f. Acts Interpretation Act 1954 (Qld), s 32A; Conde v Gilfoyle & Anor [2010] QCA 109 at [20]-[22].
[15] Gold Coast City Council Planning Scheme 2003, Version 1.0, Part 5, Division 1, Chapter 2, clause 1.0.
[16] Gold Coast City Council Planning Scheme 2003, Version 1.0, Part 5, Division 1, Chapter 2, clause 2.0.
[17] Gold Coast City Council Planning Scheme 2003, Version 1.0, Part 5, Division 1, Chapter 2, clause 4.6.1 “Material Change of Use.”
[18] Gold Coast City Council Planning Scheme 2003, Version 1.0, Part 5, Division 2, Chapter 16, clause 3.0.
[19] [2007] QCA 33.
[20] [2008] QSC 261.
[21] [2009] QCA 231.
[22] [2009] QSC 326.
[23] [2007] QCA 33 at [73]-[75].
[24] [2007] QCA 33 at [18], Southeast Queensland Regional Plan Regulatory Provisions, s 5(3).
[25] [2008] QSC 261 at [10].
[26] Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land P/L [2009] QCA 231 at [12].
[27] [2009] QSC 326 at [65]-[66].
[28] Integrated Planning Act 1997 (Qld) (repealed), s 2.1.23(2) states that: “A local planning instrument may not prohibit development on, or the use of, premises.”
[29] Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd and Reppals (1) Pty Ltd t/as Main Commercial First National [2009] QSC 374 at [41].
[30] [2007] QCA 33 at [73]; and statements to similar effect at [75] and [88].
[31] [2008] QSC 261 at [12].
[32] [2009] QCA 231.
[33] [2009] QSC 326 at [65]-[66].
[34] Unreported, Byrne J, Supreme Court of Victoria, No. 6668 of 1996, 9 October 1996.
[35] Domestic Building Contracts and Tribunal Act 1995 (Vic), s 54(1)(a)(i).
[36] Fletcher Construction Australia Ltd v Southside Tower Developments Pty Ltd , unreported, Byrne J, Supreme Court of Victoria, No. 6668 of 1996, 9 October 1996, at 15-17.
[37] [2006] 1 Qd R 416 at 417-418.
[38] Standard Building Regulation 1993 (Qld), s 97(1) states that: “A person must not use a building… for residential purposes unless the use is approved by the local government.”
[39] Gold Coast City Council Planning Scheme 2003, Version 1.0, Part 5, Division 1, Chapter 1, clause 4.0 “Evolution of the Domains from the Land Use Themes” includes a table that “indicates the relationship of the Land Use Themes, and their expression planning measures, through the 18 domains of the Planning Scheme”. In the table Chapter 16 is listed as the Private Open Space Domain specifying Chapter 2 “Open Space/Nature Conservation” and Chapter 7 “Urban Residential” as directly relevant Land Use Themes.
[40] Arc referred to the “Material Change of Use” provision for Domains in Gold Coast City Council Planning Scheme 2003, Version 1.0, Part 5, Division 1, Chapter 2, clause 4.6.1, quoted in footnote15.