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Ashtrail Pty Ltd & Anor v Council of the City of Gold Coast

 
Unreported Citation: [2020] QCA 82
EDITOR'S NOTE

The applicants in this case had been granted development approval in 2010 to regularise a pre-existing unlawful use of their land for a driver-training business. The applicants failed to comply with conditions as to payment of infrastructure contributions and also departed from the approved plans. There were a number of issues on appeal but the focus of this note is on the Court’s consideration of whether the development approval had lapsed by reason of s 341 of the Planning Act 2016, because “the first change of use under the approval” had not started within four years. The Court of Appeal held that it has not lapsed for two reasons: on proper construction the conditions did not require payment of infrastructure contributions as a precondition to the commencement of the use under the 2010 approval; and as the 2010 approval was granted to regularise a pre-existing unlawful use, departure from the approved plans were not determinative of whether the 2010 Approval lapsed under s 341.

Morrison and Mullins JJA and CallaghanJ

24 April 2020

Background

The applicants owned and operated a driver-training business on a site at Ormeau. [1], [5]. In 2007 the Gold Coast City Council (“GCCC”) issued a “show cause” notice to the applicants, alleging unlawful use of the land. [7]. The applicants responded by lodging a development application, and on 15 February 2010 the Council issued a development approval in the form of a negotiated decision notice (the 2010 approval). [7], [13]. The 2010 approval was subject to conditions, including that the applicants pay contributions to water and sewerage infrastructure. [14]. None of the conditions were complied with. [15].

At first instance the GCCC was successful in obtaining declaratory relief that the applicants’ non-compliance with the approval conditions constituted a development offence (under s 164 of the Planning Act 2016), and orders were made requiring the applicants to comply with the conditions. [2]. The applicants applied for leave to appeal against those orders. [3]. Leave was granted in respect of five of the grounds, which were addressed by Morrison JA (with whom Mullins JA and Callaghan J agreed). [123], [125]–[126]. This summary focuses on the four legally noteworthy grounds, considered under the two headings below.

Whether the approval had lapsed

The applicants contended that the trial judge had erred in failing to find that the 2010 approval had lapsed because the conditions had not been complied with, or because the approved plans and drawings had not been complied with. [16]. They suggested that the condition requiring payment of infrastructure contributions had to be fulfilled prior to commencement of the use (which had not been the case), and that “significant departures” from the approved plans also indicated the use had not been commenced. [23], [59]. On this argument, the 2010 approval had lapsed by reason of s 341 of the Planning Act 2016 (“Planning Act”), which provides that an approval will lapse if the first change of use approved by it does not start within 4 years of the approval taking effect. [22].

These grounds were without substance. The condition requiring payment specified that it was to be made prior to the earliest of a number of events, one of which was “the commencement of the use of the premises” (which, Morrison JA considered, had to be a reference to a material change of use authorised by the approval). [18], [29]. Importantly, one of the uses authorised was an unlawful pre-existing use made lawful by the 2010 approval. [33]. As a result, the “commencement of the use” in the relevant condition “occurred immediately upon the [approval] taking effect”. [33]. Therefore, the payments were due as at the date of the 2010 approval and were not a precondition to the approval commencing. [33], [48]. Relatedly, s 341 of the Planning Act did not operate to cause the 2010 approval to lapse, because the first change of use under the approval had commenced immediately (the existing use which was unlawful prior to the approval). [68], [70].

Whether the proceedings were out of time

The applicants argued that the trial judge had erred in failing to find that the proceedings were out of time by reason of s 10(1)(d) of the Limitations of Actions Act 1974 (“LAA”), or by reason of s 38(4) of the Acts Interpretation Act 1954 (“AIA”).

In relation to the LAA, s 10(1)(d) relevantly bars “an action to recover a sum recoverable by virtue of an enactment” following the expiration of 6 years from the date on which the cause of action arose. [72]. However, Morrison JA found there had been no error by the trial judge in rejecting the applicability of this provision. First, the proceedings could not be characterised as being “an action to recover a sum”, which was an expression apt to “describe an action for a debt”. [77]. While the orders made might “have the effect of causing the applicants to pay the infrastructure contributions”, that did not mean the proceedings were an “action to recover a sum” (instead, they were proceedings seeking an enforcement order compelling the correction of a development offence under the Planning Act). [79], [81]. Second, the infrastructure contributions were not a sum “recoverable by virtue of any enactment”. [78]. No enactment was identified as making the contributions recoverable in an action for debt. [78].

In relation to the AIA, s 38(4) relevantly provides that if “no time is provided or allowed for doing anything, the thing is to be done as soon as possible”. [84]. However, Morrison JA agreed with the trial judge that “as a matter of both construction and intent … s 38(4) does not create any legal limitation or bar to a proceeding of the type under consideration”. [87]. Separately, his Honour noted that the applicants had been on notice about the issues for some time, and that there was no arguable cause of material prejudice caused by any delay. [89], [92].

In the result, all of the grounds of appeal were unsuccessful. [123].

W Isdale