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Council of the City of Gold Coast v Ashtrail Pty Ltd[2018] QPEC 29

Council of the City of Gold Coast v Ashtrail Pty Ltd[2018] QPEC 29

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Council of the City of Gold Coast v Ashtrail Pty Ltd & Anor [2018] QPEC 29

PARTIES:

COUNCIL OF THE CITY OF GOLD COAST

(Applicant)

v

ASHTRAIL PTY LTD ACN 057 404 074

(First Respondent)

and

TALRANCH PTY LTD ACN 077 382 453

(Second Respondent)

FILE NO/S:

87 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Application in Pending Proceeding

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

16 May 2018 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2018

JUDGE:

Kefford DCJ

ORDER:

The respondents’ application for summary judgment is dismissed

CATCHWORDS:

PROCEDURE – PLANNING AND ENVIRONMENT COURT PROCEDURE – PROCEDURE UNDER RULES OF COURT – where the Respondents applied for summary judgment – where the Originating Application seeks declarations and enforcement orders in respect of non-compliance with development permit conditions – where the Respondents contend the development approval has lapsed – where the respondents also contend part of the applicant’s claim is statute barred – whether the court has the power to grant the Respondents’ application – whether summary judgment ought be granted

LEGISLATION:

City of Brisbane Act 2010 (Qld), s 96, s 97

Integrated Planning Act 1997 (Qld), s 3.5.20

Land Court Rules 2000 (Qld), r 4

Limitation of Actions Act 1974 (Qld), s 10

Local Government (Planning and Environment) Act 1990 (Qld), s 3(1), s 4.13(6)

Planning Act 2016 (Qld), s 180

Planning and Environment Court Rules 2010 (Qld), r 3

Sustainable Planning Act 2009 (Qld), s 9, s 340, s 341

Uniform Civil Procedure Rules 1999 (Qld), r 293, r 658

CASES:

Allingham v Fuller [2013] QSC 81, applied

Bolton Property Pty Ltd v JK Investments (Australia) Pty Ltd [2009] QCA 135; [2009] 2 Qd R 202, applied

Brisbane City Council v Amos [2016] QSC 131; (2016) 216 LGERA 312, distinguished

CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR, applied

Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232, applied

Fancourt & Anor v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87, cited

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 122 CLR 125, cited

Keramaniakis v Wagstaff [2005] NSWDC 14; (2005) 3 DCLR (NSW) 1, cited

Mio Art Pty Ltd v BMD Holdings Pty Ltd [2014] QSC 55, cited

Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd [1995] QCA 300; (1995) 88 LGERA 157, distinguished

Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119; [2011] 2 Qd R 114, cited

Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2002] QCA 224; [2003] 1 Qd R 259, applied

Rich v CGU Insurance Ltd [2005] HCA 16; (2005) 79 ALJR 856, cited

Stevenson Group Investments Pty Ltd v Nunn [2012] QCA 351; [2013] QPELR 1, not followed

Vantage Holdings Pty Ltd v JHC Developments Group Pty Ltd [2011] QSC 155, cited

COUNSEL:

R G Bain QC and D D Purcell for the Applicant

R S Litster QC and K Wylie for the First and Second Respondents

SOLICITORS:

McInnes Wilson Lawyers for the Applicant

Synkronos Legal for the First and Second Respondents

TABLE OF CONTENTS

Introduction

Power to grant summary judgment

The test for summary judgment

The availability of summary judgment in this proceeding

Reliance on material facts

Summary Dismissal Basis 1 – Uses under the Development Approval never started, and it lapsed

Summary Dismissal Basis 2 – the claim for moneys is barred by section 10 Limitation of Actions Act 1974 (Qld)

Introduction

  1. [1]
    This is an application by the Respondents for summary judgment against the Council of the City of Gold Coast (“Council”) on part of the Originating Application.
  1. [2]
    The Originating Application seeks declarations and consequential enforcement orders in respect of non-compliance with the conditions of a development permit for a material change of use with respect to premises located at 36 Prairie Road, Ormeau given in February 2010. The relevant conditions are:
  1. (a)
    conditions 5 and 6 requiring the payment of water supply network and sewerage network infrastructure contributions in accordance with the relevant planning scheme policies prior to the commencement of the use of the premises; and
  1. (b)
    conditions 10, 12 and 16 requiring the design and construction of roadworks, footpaths and bikeways, and a minor land dedication prior to the commencement of the use.
  1. [3]
    The First Respondent, Ashtrail Pty Ltd, conducts business on and from the subject land.  The Second Respondent, Talranch Pty Ltd, as trustee, is the owner of the subject land.  They are referred to collectively herein as the Respondents.

Power to grant summary judgment

  1. [4]
    The Respondents seek summary judgment, pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) made applicable, they contend, by r 3 of the Planning and Environment Court Rules 2010 (Qld).
  1. [5]
    Rule 3 of the Planning and Environment Court Rules 2010 provides:

3 Application of rules

  1. (1)
    These rules apply to proceedings in the court.
  1. (2)
    If these rules do not provide for a matter in relation to a proceeding, or proceedings, in the court and the rules applying in the District Court would provide for the matter in relation to a proceeding, or proceedings, in the District Court, the rules applying in the District Court apply for the matter in the court with necessary changes.”
  1. [6]
    Rule 293 of the Uniform Civil Procedure Rules 1999 provides:

293 Summary judgment for defendant

  1. (1)
    A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
  1. (2)
    If the court is satisfied -
  1. (a)
    the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
  1. (b)
    there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”

The test for summary judgment

  1. [7]
    Under r 293 of the Uniform Civil Procedure Rules 1999, an applicant for summary judgment must demonstrate that the other party has no real prospect of succeeding on all or part of the proceeding and there is no need for a trial of that part of the proceeding.
  1. [8]
    A large body of authority now establishes, under the contemporary principles of statutory interpretation, the legal meaning of the expression “no real prospect of succeeding.
  1. [9]
    The Court of Appeal in Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232 provides a useful collection and analysis of those authorities and the proper construction of those terms.  In that case, Williams JA, with whom McMurdo P and Atkinson J agreed, held at 234-7:

“[10] On the hearing of the appeal counsel for the appellant referred to Gray v. Morris [2004] 2 Qd.R. 118 and in particular observations by Chesterman J. at 126 and 127 that the onus was on the applicant for summary judgment to establish that the defence was “bound to fail”, “one which cannot possibly succeed”, one which had “no prospect of success” and/or one that was “hopeless”. Those words were used in the context of reasoning by that learned judge based on the proposition that the Uniform Civil Procedure Rules 1999 (“UCPR”) had not effected any substantial change in the approach to summary judgment from that which applied under the former Rules of the Supreme Court.

[11] With respect that approach is not correct. Rule 292 and r. 293 brought about significant changes in the law and procedure relating to summary judgment. …

[17] That review of the authorities clearly establishes to my mind that there has been a significant change brought about by the implementation of r. 292 and r. 293 of the UCPR. The test for summary judgment is different, and the court must apply the words found in the rule. To use other language to define the test (as was contended for in this case by counsel for the appellant relying on the reasoning of Chesterman J. in Gray v. Morris) only diverts the decision-maker from the relevant considerations. But, and this underlies all that is contained in the UCPR, ultimately the rules are there to facilitate the fair and just resolution of the matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial. In my view, the observations on summary judgment made by the judges of the High Court in Fancourt v. Mercantile Credits Ltd (1983) 154 C.L.R. 87 at 99 are not incompatible with that application of r. 292 and r. 293; what is important is that in following the broad principle laid down by their Honours the test as defined by the rules is applied.”

(emphasis added)

  1. [10]
    The discretion to order summary judgment should only be exercised with great care and never in circumstances in which there is a real question to be tried.[1]  Proceedings should be determined summarily only in the clearest of cases.[2]
  1. [11]
    As observed by Daubney J in Bolton Property Pty Ltd v JK Investments (Australia) Pty Ltd [2009] QCA 135; [2009] 2 Qd R 202, in the context of r 292 of the Uniform Civil Procedure Rules 1999, at 218 [78]:

“… [t]he need to be satisfied in respect of [the] second element and, in any event, the proper judicial exercise of the discretion to grant or deny summary judgment are each matters which invoke the necessity for a judge to exercise great care, and proceed with appropriate caution, having regard to the patent seriousness of a decision to summarily terminate a proceeding by effectively denying a party the opportunity to present its case at a trial “in the ordinary way, and after taking advantage of the usual interlocutory processes”.”

(footnotes omitted)

  1. [12]
    That statement echoes the caution expressed some years earlier by the Court of Appeal in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2002] QCA 224; [2003] 1 Qd R 259 by Holmes J (with whom Davies JA and Mullins J agreed) at 265 [7]:[3]

However, it remains, without doubt, the case that:

“great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case.””

(footnotes omitted)

  1. [13]
    The court ought only to determine a proceeding (or part of it) summarily in the clearest of circumstances and only if satisfied to a high degree of certainty as to the definitive outcome of the proceeding, were it to proceed in the ordinary way.[4]

The availability of summary judgment in this proceeding

  1. [14]
    The Respondents submit that, by application of r 3 of the Planning and Environment Court Rules 2010, r 293 of the Uniform Civil Procedure Rules 1999, with necessary changes, extends to proceedings in the Planning and Environment Court commenced by way of Originating Application.
  1. [15]
    Council submits that summary judgment under r 293 of the Uniform Civil Procedure Rules 1999 is not available.  It submits that the rule’s operation is clearly limited to proceedings commenced by way of claim or ordered to continue as if started by claim.[5]  It submits that had the legislature intended the rule to apply to other proceedings, it could readily have achieved that by simple, different language. 
  1. [16]
    Council highlights its point by reference to the Land Court Rules 2000 (Qld).  Rule 4(1) of the Land Court Rules 2000 is in similar terms to r 3 of the Planning and Environment Court Rules 2010.  Rule 4(2) of the Land Court Rules 2000 requires originating processes (including originating applications) under the Land Court Rules 2000 to be treated as if they were a claim under the Uniform Civil Procedure Rules 1999.
  1. [17]
    Council does not contend that r 293 of the Uniform Civil Procedure Rules 1999 is not available to any proceedings commenced by way of originating application in the Planning and Environment Court.  However, it submits that it is not apparent that the procedural conditions precedent to the court’s power under r 293 of the Uniform Civil Procedure Rules 1999 have been met here.  Council submits that this case is to be distinguished from matters where the court has intentionally set directions in relation to an originating application requiring subsequent elaboration analogous to a defence.
  1. [18]
    Council submits that this is not a situation in which there can be identified court-directed steps analogous to procedural alignment as if started by way of Claim or the like.
  1. [19]
    In support of the applicability of r 293 of the Uniform Civil Procedure Rules 1999, the Respondents rely on Stevenson Group Investments Pty Ltd v Nunn [2012] QCA 351; [2013] QPELR 1.  In that case, McMurdo P found at 20 [73]:

[73] Judge Searles was entitled to give summary judgment under Uniform Civil Procedure Rules 1999 (Qld) r 293 only if satisfied that the applicant had no real prospect of succeeding on all or part of its claim and there was no need for a trial of the claim or the part of the claim. The power to dismiss an action summarily is not to be exercised lightly: Spencer v Commonwealth of Australia.”

(footnotes omitted)

  1. [20]
    In terms of the doctrine of stare decisis, in CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1, Gleeson CJ, Gummow and Heydon JJ observed at 11 [13]:

“These events placed the Court of Appeal in a difficult position. It is of course commonplace for the courts to apply received principles without argument: the doctrine of stare decisis in one of its essential functions avoids constant re-litigation of legal questions. But where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument. “[T]he presidents, … sub silentio without argument, are of no moment.”

(footnotes omitted)

  1. [21]
    Stevenson Group Investments Pty Ltd v Nunn[6] does not appear to consider the effect of r 293(1), which identifies that the class of case in which an application for summary dismissal may be brought is confined to those in which a defendant has filed a notice of intention to defend.  This confinement is important.
  1. [22]
    In Allingham v Fuller [2013] QSC 81[7] Daubney J held:

“[16] True it is that r 291 provides that Chapter 9 Part 2, within which r 293 is located, applies to any proceeding and that the UCPR provide for a proceeding to be commenced by, inter alia, an originating application – r 8(2).  But the plain words of r 293, as currently formulated, make it clear that the summary judgment procedure is available only after a defendant has filed a notice of intention to defend. That occurs in a proceeding commenced by claim or, depending on the directions given by the court, in a proceeding commenced by originating application which is ordered to continue as if commenced by claim.

[17] If a respondent to an originating application wishes to contend that there ought be a .summary determination of the application for final relief commenced by the originating application (for example, on the basis that, on the undisputed facts, the applicant cannot succeed as a matter of law), then the respondent could apply to have the originating application dismissed, or have the originating application listed for hearing for a determination of the final relief.

[18] In my view, therefore, the summary judgment application brought by the respondents in this case was inapposite.”

(footnotes omitted)

  1. [23]
    The fact that directions have been made for the filing of a statement of facts, matters and  contentions does not change the position.  In LPD Holdings (Aust) Pty Ltd v Russells (a firm) [2017] QSC 45, Flanagan J said at [4]:

“Rule 293(1) of the UCPR, which deals with summary judgment for a defendant, provides that a defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff. LPD's proceedings were commenced by application rather than claim and statement of claim. Whilst directions were made for the filing and serving of Points of Claim and Points of Defence, Russells has not filed a notice of intention to defend. Rule 293 therefore does not apply.”

  1. [24]
    While this court is not bound by the decisions of single judges of the Supreme Court, it should follow such decisions unless convinced that they are plainly wrong.[8]  The Supreme Court cases referred to above are not, in my view, plainly wrong, but clearly correct.
  1. [25]
    I am not satisfied that the court has power to grant the Respondent’s application.
  1. [26]
    Nevertheless, it seems prudent to consider the matter at least a little further. As was observed by Daubney J in Allingham v Fuller [2013] QSC 81 at [19]:

“That, however, is not the end of the matter.  If, as was contended by the respondents, the principal relief sought under the originating application is truly not available to the applicant as a matter of law, then it is clearly in the interests of parties, and parenthetically of the Court, to put unmaintainable claims to rest.

  1. [27]
    Having ventilated my concerns with respect to this court’s power at the hearing, the Respondents made an oral application under r 658 of the Uniform Civil Procedure Rules 1999 for summary judgment.  Under that rule, the court has a broad discretion to make any order, including a judgment, which the nature of the case requires.
  1. [28]
    In determining whether relief should be granted under that rule, it is still appropriate to have regard to the principles with respect to summary judgment outlined above.
  1. [29]
    For the reasons outlined below, I am not satisfied that there is not some real prospect of Council succeeding at a trial. I am also not satisfied that this is an appropriate case in which to exercise my discretion in any event. It could not be regarded as “the clearest of cases”.

Reliance on material facts

  1. [30]
    The Outline of Argument for the Respondents with respect to the Respondents’ Application for Summary Dismissal contained a section titled “Material Facts”.
  1. [31]
    Counsel for the Respondents initially submitted that the success of its application was contingent on all of the material facts being uncontroversial.
  1. [32]
    Under that heading, the following paragraphs appear:

“8. The Development Approval did not contain a condition prescribing a ‘relevant period’.

  1. Accordingly, the Development Approval would lapse if the first change of use under the Development Approval did not start within four years from the date the Approval took effect or, in this instance, on or before 17 February 2014.”

(footnotes omitted)

  1. [33]
    Counsel for the Respondents was unable to take me to any documents on the court file that demonstrated that the facts in paragraphs 8 and 9 of its Outline were uncontroversial. The matters outlined in those paragraphs were conclusions reached by the Respondents having looked at source documents on the file.
  1. [34]
    When asked, Council indicated that it did not regard the statements in paragraphs 8 and 9 to be uncontroversial, at which point the Respondents conceded (through Counsel) that there was a triable issue with respect to those matters. However, the Respondents submitted that its application ought not fail on that basis.
  1. [35]
    The Respondents maintained that summary judgment ought be given on the two bases identified in their Outline.

Summary dismissal basis 1 – uses under the development approval never started and it lapsed

  1. [36]
    The Respondents’ first basis for summary dismissal relies on the Court of Appeal’s decision in Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd [1995] QCA 300; (1995) 88 LGERA 157, which it submits is binding authority.  It submits that application of the ratio decidendi of that case to the facts of this case necessarily results in a finding that the development approval has lapsed.
  1. [37]
    In Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd,[9] the Queensland Court of Appeal was required to consider the existence of lawful existing use rights.  The issue to be determined by the Court of Appeal was whether the legality of a use was established by s 3.1(1) of the Local Government (Planning and Environment) Act 1990 (Qld).
  1. [38]
    That provision stated:

3.1(1) A lawful use made of premises, immediately prior to the day when a planning scheme or an amendment of a planning scheme commences to apply to the premises, is to continue to be a lawful use of the premises for so long as the premises are so used notwithstanding –

  1. (a)
    any provision of the planning scheme or amendment of the planning scheme to the contrary (other than a provision to which subsection (1A) applies); or
  1. (b)
    that the use is a prohibited use.”
  1. [39]
    As is recorded in that decision at page 159, it was common ground that, unless saved by s 3.1(1), the use of the premises as a bottle shop would be unlawful under the Development Control Plan.  The learned judge of the Planning and Environment Court held, in substance, that having regard to the terms of the consent allowing the use of the premises as a home appliance and kitchenware shop granted by the local authority on 25 January 1990, the proposed use as a bottle shop was lawful as being a continuation of a lawful use previously made.
  1. [40]
    A number of issues, and in particular the effect of a certain town planning certificate, were dealt with in the reasons of the learned judge. However, the Court of Appeal went on to say that it was necessary to decide only one of those issues in the case before it, namely, whether the use being made of the premises immediately prior to the day when the Development Control Plan was made was a “lawful use”.  The question in that case was not whether the use was a use commenced under an approval; rather, it was whether the use was a lawful use at a particular point in time.
  1. [41]
    The judgment also records at page 160 that it is common ground that, apart from the permit, the use being made of the premises immediately before the relevant date would have been unlawful as being prohibited by the then operative planning provisions. Under those provisions it was possible for the local authority to give a town planning consent approval to certain uses.
  1. [42]
    The judgment goes on to record that an application town planning consent was granted:[10]

“subject to the conditions being as set forth in [the Council Registration Board’s] determination of 14 December 1989 contained in Minute Number 1920/89”.

  1. [43]
    A copy of that determination was not set out in the judgment, nor did the judgment attach a copy of the decision. The only available details of the condition are those recorded at page 160 of the judgment, which says:[11]

“That minute sets out the conditions, which are in various categories.  The only categories which require to be mentioned are D and E, the former being a list of works headed “PRIOR TO COMMENCEMENT OF USE” and the latter being a list headed “PRIOR TO COMMENCEMENT OF USE AND THEREAFTER MAINTAINED AT ALL TIMES THAT THE DEVELOPMENT REMAINS IN EXISTENCE”.

  1. [44]
    The judgment does not contain details of what works were listed under those various headings. There was, however, as is recorded at page 160, evidence that some works required by condition D, as well as some required by condition E, had not been done at the relevant date, being 4 June 1993. Having set those matters out, the judgment proceeds to record:[12]

“It was argued by Mr Hinson, for the respondent that the use at that time was lawful as being within the permit.  His argument was that it is not every breach of condition attaching to a permit which makes use under it unlawful, for the purpose of section 3.1 of the Act; so much may be accepted ... But the appellant’s argument here was that the use was not lawful at all,  that no use, whatever the precise manner of use, could lawfully be made of the premises under the permit until fulfilment of those conditions which the permit required to be fulfilled before the use commenced.

The point depends upon the construction of the permit.”

  1. [45]
    What is evident from these findings is that:
  1. (a)
    it was accepted that not every breach of a condition attaching to a permit makes use under it unlawful; and
  1. (b)
    the point depends upon the construction of the permit.
  1. [46]
    It is the Respondents’ case, it seems, that one need not look outside the relevant permit in this case in order to construe conditions 5, 6, 10, 12 and 16. The Respondents’ case is that by the mere inclusion of the words “prior to the commencement of the use” in each of those conditions, the case on all fours with Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd.[13]  In particular, the Respondents rely on findings in that case by Fitzgerald P at page 158 that:[14]

“That argument starts from the premise, which is in my opinion correct, that the consent of 25 January 1990 had immediate effect.  However, it does not automatically follow that the consent in the sense of the Council decision operated as a consent to the immediate use of the premises as a shop.  Its effect at 25 January 1990 has to be determined by the construction of its terms.  In my opinion, the effect of the consent or Council decision at 25 January 1990 was to suspend the lawful use of the premises as a shop until at least some of the conditions were performed or otherwise complied with.  In other words, the consent of 25 January 1990 gave consent to the use of the premises as a shop at such future time as the material conditions were satisfied.”

  1. [47]
    The respondents also rely on what was said by Pincus and McPherson JJA at page 160 as follows:

“Had the respondent been sued for an injunction to restrain the use referred to in the permit, (immediately after the relevant date), the permit would not have constituted a defence;  the court then must in our view have held that the permit did not yet operate to make the use lawful and that it remained prohibited.  The natural reading of the permit is to this effect:  “We give you consent to use the premises as this permit specifies, but on the basis that your use under the permit may commence only when you have fulfilled certain conditions”.  It is not easy to understand how the permit can be read as giving consent to any use being made of the premises before fulfilment of the conditions in categories D and E.”

  1. [48]
    On the one hand, the Respondents conceded that in construing a condition as a matter of ordinary course one is entitled to look outside the condition to determine its proper construction. On the other hand, in this case it submits that there is no need to look outside the condition because the condition is clear. It says so in reliance on those observations to which I have just referred to in Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd.[15]
  1. [49]
    It is not necessary for me to finally determine the matter in order to determine the summary judgment application. Unless I am satisfied that Council has no real prospect of succeeding or that there is no need for a trial, the summary judgment application must fail.
  1. [50]
    While it is not necessary for me to finally determine the matter, part of the reason I am not so satisfied is that it seems to me there is an arguable case that this case is distinguishable from Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd [16] on a number of bases.
  1. [51]
    Here, the approval does not contain those same headings. The conditions need to be construed in the framework of the permit themselves. At face value, when one views the conditions in the context of the whole development permit, they do not necessarily appear to be preconditions, as opposed to conditions setting the timing for compliance after which the person who takes the benefit of the approval may be subject to penalties.
  1. [52]
    It also strikes me that there is at least an argument that the case can be distinguished having regard to the different legislative regimes. In response to questions asked by me, Counsel for the Respondents indicated that they had considered the Local Government Act 1936 (Qld) and the City of Brisbane Town Planning Act 1964 (Qld) and found in those Acts no equivalent to s 3.5.20 of the Integrated Planning Act 1997 (Qld) or s 340 of the Sustainable Planning Act 2009 (Qld).  Those provisions state that development may start when a development permit for the development takes effect.  The provisions are not expressed to be contingent upon satisfaction of preconditions.
  1. [53]
    By way of contrast, other planning regimes that have applied in this State from time to time have had quite different provisions.
  1. [54]
    For example, the Local Government (Planning and Environment) Act 1990 provided in s 4.13(6) that:

Assessment of town planning consent application

4.13

(6) Where a Local Government approves an application under subsection (5) [being an application for town planning consent] subject to conditions, it may require as a condition the lodgement of security to its satisfaction by the applicant that the applicant will execute work to be done in relation to the application and the decision pursuant to it within such time as may be determined by the Local Government.”

  1. [55]
    It went on to provide in subsection (6A) that:

(6A) Where security is required to be lodged to ensure compliance with the conditions of the Local Government or by order of the Court and the security has not been lodged within two years of the date of the Local Government’s decision or the Court’s order, as the case may be, or such longer period as may be agreed to by the local government, the decision in respect of the application is void.”

  1. [56]
    There is not an equivalent to that provision in the Sustainable Planning Act 2009 to which I was taken.
  1. [57]
    While Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd [17] made no reference to the legislative regime and how it operated in terms of conditions, the setting of preconditions and the like, that is not to say that the findings were not premised on what, at the time, would have been a common understanding of how those regimes operated.  Even if that were not the case, it seems to me at least arguable that the meaning of a condition, even if identically worded, might be construed differently depending on the legislative regime for planning that is in place at the time.
  1. [58]
    In that respect it may be material that the Sustainable Planning Act 2009 draws a distinction between a lawful use, which is defined in s 9, and a use which is defined in schedule 3 to the Act.
  1. [59]
    The provision with respect to lapse is a provision that refers to a development lapsing if the first change of use under the approval does not start within a particular period. It does not make reference to such use lawfully starting.
  1. [60]
    The respondents’ case focused on the words “under the approval” and sought to import into those words a connotation that where timing for compliance of the condition is set at “prior to commencement of use”, the condition is necessarily one that is a precondition which prevents a use starting for the purposes of s 341 of the Sustainable Planning Act 2009.
  1. [61]
    As I have said, it is unnecessary for me to decide that point. The fact that there is an arguable case with respect to it, as well as the fact that there is an arguable case that the decisions ought be construed having regard to the legislative context under which they are imposed (and a potential for evidence about such matters), means that this matter is not one that ought be determined on a summary basis.

Summary dismissal basis 2 – the claim for moneys is barred by section 10 of the Limitation of Actions Act 1974 (Qld)

  1. [62]
    The second basis on which the respondent sought summary judgment was on the basis that the claim for orders requiring payment of moneys under conditions 5 and 6 of the development approval is barred by operation of s 10 of the Limitation of Actions Act 1974 (Qld).  That provision states:

10 Actions of contract and tort and certain other actions

  1. (1)
    The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose—
  1. (a)
    subject to section 10AA, an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person;
  1. (b)
    an action to enforce a recognisance;
  1. (c)
    an action to enforce an award, where the agreement to arbitrate is not by an instrument under seal;
  1. (d)
    an action to recover a sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of a penalty or forfeiture.
  1. (2)
    An action for an account shall not be brought in respect of a matter that arose more than 6 years before the commencement of the action.
  2. (3)
    An action upon a specialty shall not be brought after the expiration of 12 years from the date on which the cause of action accrued.

(3A) Subsection (3) does not affect an action in respect of which a shorter period of limitation is prescribed by any other provision of this Act.

  1. (4)
    An action shall not be brought upon a judgment after the expiration of 12 years from the date on which the judgment becomes enforceable.

(4A) For the purposes of subsection (4), a judgment of a court of a place outside the State becomes enforceable on the date on which the judgment becomes enforceable in the place where the judgment is given.

  1. (5)
    An action to recover a penalty or forfeiture or sum by way of a penalty or forfeiture shall not be brought after the expiration of 2 years from the date on which the cause of action accrued.

(5A) In subsection (5)—

penalty does not include a fine to which a person is liable on conviction of a criminal offence.

  1. (6)
    This section—
  1. (a)
    does not apply to a cause of action within the Admiralty jurisdiction of the court that is enforceable in rem; and
  1. (b)
    does not apply to a claim for specific performance of a contract or for an injunction or other equitable relief, save so far as any provision thereof may be applied by the court by analogy in the same manner as the corresponding enactment repealed by this Act has heretofore applied.”
  1. [63]
    The Respondents point out that paragraph 2(a) of the Originating Application seeks orders requiring Ashtrail to comply with conditions 5 and 6 of the development approval. It submits that the proceeding is, therefore, a proceeding to recover a sum of money which is not a penalty or forfeiture.
  1. [64]
    The Respondents’ case in that regard is not one that I consider to be “the clearest of cases” and amenable to determination on a summary basis by this court.  That reason alone is sufficient to dismiss the application in reliance on basis 2.  However, I will also observe that the argument is one that seems to me to have considerable difficulties, or at the very least the council has an arguable case and is entitled to a trial with respect to the issue.
  1. [65]
    The proceeding seems to me to be properly characterised as an action for declarations as regards noncompliance with conditions of an approval and consequential orders by the court. It does not seem to me to be an action to recover a sum recoverable by virtue of an enactment.
  1. [66]
    The relief is sought under s 180 of the Planning Act 2016.  That provision is not one that is framed as providing a right to recover a sum or a debt.  It is a provision that enables a proceeding to be brought to obtain an enforcement order requiring a person to either refrain from committing a development offence or remedy the effect of a development offence in a stated way.
  1. [67]
    There is no identifiable sum that is recoverable. This case can be distinguished from the case of Brisbane City Council v Amos [2016] QSC 131; (2016) 216 LGERA 312.  In that case the provision in question, s 96 of the City of Brisbane Act 2010, obliged Brisbane City Council to levy general rates on all rateable land and empowered Brisbane City Council to levy other types of rates.  Section 97 of that Act confirmed that overdue rates and charges operated as a charge on the rateable land.
  1. [68]
    This case is distinguishable from Brisbane City Council v Amos.[18]  The nature of the proceedings is markedly different to that which applied in that case.  The type of enforcement orders that can be imposed to remedy the effect of a development offence may be many and varied.  Insofar as the offence is a continuing offence, it may well, for example, be remedied by an order requiring the immediate cessation of the use.  Council’s Originating Application seeks orders requiring compliance with the conditions and such further or other orders as the court considers appropriate.
  1. [69]
    Even though Council seeks orders that would involve compliance with the conditions by the payment of a sum of money, it is nevertheless also possible under the proceedings for the court to instead remedy the commission of the offence by ordering the use to immediately cease. This further highlights the difficulties associated with the respondents’ application for summary judgment and why it is not one that could be regarded as “the clearest of cases”. 

Conclusion

  1. [70]
    For the reasons provided, the Respondents’ application is dismissed.[19]

Footnotes

[1]Fancourt & Anor v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87, 99.

[2]Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232, 233 [3].

[3]citing General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 122 CLR 125, 130.

[4]Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119; [2011] 2 Qd R 114, 136 [80]-[81]; Rich v CGU Insurance Ltd [2005] HCA 16; (2005) 79 ALJR 856, 859.

[5]under rule 14 of the Uniform Civil Procedure Rules 1999.

[6][2012] QCA 351; [2013] QPELR 1.

[7]See also Vantage Holdings Pty Ltd v JHC Developments Group Pty Ltd [2011] QSC 155 at [18]-[25]; Mio Art Pty Ltd v BMD Holdings Pty Ltd [2014] QSC 55 at [120].

[8]See Keramaniakis v Wagstaff [2005] NSWDC 14; (2005) 3 DCLR (NSW) 1 at [58].

[9][1995] QCA 300; (1995) 88 LGERA 157.

[10][1995] QCA 300; (1995) 88 LGERA 157, 160.

[11][1995] QCA 300; (1995) 88 LGERA 157, 160.

[12][1995] QCA 300; (1995) 88 LGERA 157, 160.

[13][1995] QCA 300; (1995) 88 LGERA 157.

[14][1995] QCA 300; (1995) 88 LGERA 157, 158.

[15][1995] QCA 300; (1995) 88 LGERA 157.

[16][1995] QCA 300; (1995) 88 LGERA 157.

[17][1995] QCA 300; (1995) 88 LGERA 157.

[18][2016] QSC 131; (2016) 216 LGERA 312.

[19]These reasons do not contain the same level of detail addressing each of the arguments of the parties that would have been provided had the Respondents not indicated that detailed reasons were not required.

Close

Editorial Notes

  • Published Case Name:

    Council of the City of Gold Coast v Ashtrail Pty Ltd and Talranch Pty Ltd

  • Shortened Case Name:

    Council of the City of Gold Coast v Ashtrail Pty Ltd

  • MNC:

    [2018] QPEC 29

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    16 May 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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