CEO Department of Main Roads v Club Cavill Pty Ltd [2011] QPEC 15 (2011) 180 LGERA 306

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: CEO Department of Main Roads v Club Cavill P/L (ACN 099 023 711) [2011] QPEC 15 PARTIES: CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS (Applicant) v CLUB CAVILL PTY LTD (ACN 099 023 711) (Respondent) FILE NO/S: 3383 of 2010 DIVISION: Original PROCEEDING: Originating application seeking a declaration that a certain preliminary approval has not lapsed ORIGINATING COURT: Planning and Environment Court of Queensland at Brisbane DELIVERED ON: 25 February 2011 DELIVERED AT: Brisbane HEARING DATE: 28 January 2011, 16 February 2011, written submission 18 February 2011 JUDGE: Robin QC DCJ ORDER: Declaration made as sought CATCHWORDS: Integrated Planning Act 1997 s 3.5.19 – a submitter appeal is “finally decided” upon withdrawal or discontinuance COUNSEL: Mr M. D. Hinson SC for the Applicant Mr C. L. Hughes SC and Mr I. A. Erskine for the Respondent Mr D. Gore QC and Mr B Job for Sunrise Waters Pty Ltd (Receiver and Manager Appointed) (In Liquidation) on 16 February 2011 SOLICITORS: Crown Law for the Applicant Q5 Law for the Respondent Clayton Utz for Sunrise (16 February 2011) [1] At issue is the meaning of s 3.5.19(1)(c) of the Integrated Planning Act 1997 (IPA). The applicant contends that a demand made by the respondent for compensation for the acquisition of Lot 3 on Survey Plan 180847 County of Ward, Parish of Gilston is premature given the terms of a deed entered into by the parties. By the deed any such claim was deferred for “the relevant period under s 3.5.21 for the Preliminary -- 1 of 18 -- 2 Approval”. That approval was granted by the Gold Coast City Council on 4 August 2006. It related also to Lot 4 (the two lots being formerly part of Lot 1 on Survey Plan 107404) and was for a mixed use development and certain operational works relating to changing ground level. The originating application seeks a declaration that the approval has not lapsed. [2] Before the respondent’s submissions concluded, Mr Nelms, solicitor for Sunrise Waters Pty Ltd (Receivers and Managers Appointed), who became aware of the proceeding only upon reading the Law List for the day, intervened to ask that the application not be decided until his client had an opportunity to consider its position and be heard, given that the declaration sought would affect the client as the current owner of Lot 4. A determination to the contrary effect would appear to be contrary to its interests. Mr Nelms was inclined to think his instructions would be to support the application. Mr Hinson SC for the applicant (contending for a later expiration of the relevant period) and Mr Hughes SC for the respondent (contending for an earlier expiration of the relevant period/currency period for the approval which it had obtained in the special circumstances) completed their submissions; neither opposed Mr Nelms’ request and accordingly on 28 January 2011, an adjournment to 16 February 2011 was ordered. [3] Section 3.5.19 at relevant times provided: 3.5.19 When approval takes effect (1) If the application is approved, or approved subject to conditions, the decision notice, or if a negotiated decision notice is given, the negotiated decision notice, is taken to be the development approval and has effect – (a) if there is no submitter and the applicant does not appeal the decision to the court, from the time – (i) the decision notice is given; or (ii) if a negotiated decision notice is given – the negotiated decision notice is given; or (b) if there is a submitter and the applicant does not appeal the decision to the court, the earlier of the following - (i) when the submitter’s appeal period ends. (ii) the day the last submitter gives the assessment manager written notice that the submitter will not be appealing the decision; or -- 2 of 18 -- 3 (c) if an appeal is made to the court, subject to section 4.1.47(2) and the decision of the court under section 4.1.54 – when the appeal is finally decided. (2) If a submitter acts under subsection (1)(b)(ii), the assessment manager must give the applicant a copy of the submitter’s notice. (3) In this section – submitter includes an advice agency that has told the assessment manager to treat its response as a properly made submission. [4] There was a submitter appeal commenced on 13 September 2006 which was discontinued by Notice of Discontinuance filed on 29 October 2007. Mr Hinson contended that the lapsing date for the approval under s 3.5.21, which provided: 3.5.21 When approval lapses if development not started (1) To the extent a development approval is for a material change of use of premises, the approval lapses if the first change of use under the approval does not happen within the following period (the relevant period) - (a) 4 years starting the day the approval takes effect; or (b) if the approval states a different period from when the approval takes effect – the stated period. (2) To the extent a development approval is for reconfiguring a lot, the approval lapses if a plan for the reconfiguration is not given to the local government under section 3.7.2(2) within the following period (also the relevant period) - (a) for reconfiguration not requiring operational works – 2 years starting the day the approval takes effect; (b) for reconfiguration requiring operational works – 4 years starting the day the approval takes effect; (c) if the approval states a different period from when the approval takes effect – the stated period. -- 3 of 18 -- 4 (3) To the extent a development approval is for development other than a material change of use of premises or reconfiguring a lot, the approval lapses if the development does not substantially start within the following period (also the relevant period) - (a) 2 years starting the day the approval takes effect; (b) if the approval states a different period from when the approval takes effect – the stated period. (4) Despite subsections (1) and (2), if there is 1 or more related approvals for a development approval mentioned in subsection (1) or (2), the relevant period is taken to have started on the day the latest related approval takes effect. (5) If a monetary security has been given in relation to any development approval, the security must be released if the approval lapses under this section. (6) The lapsing of a development approval for a material change of use of premises or reconfiguring a lot does not cause an approval mentioned in subsection (3) to lapse. (7) In this section - related approval, for a development approval for a material change of use of premises (the earlier approval), means – (a) the first development approval for a development application made to a local government or private certifier within 2 years of the start of the relevant period, that is - (i) to the extent the earlier approval is a preliminary approval – a development permit for the material change of use of premises; or (ii) to the extent the earlier approval is a development permit or a preliminary approval for development mentioned in section 3.1.6(3)(a)(ii) or (iii) – a development permit for building work -- 4 of 18 -- 5 or operational work necessary for the material change of use of premises to take place; and (b) each further development permit, for a development application made to a local government or private certifier within 2 years of the day the last related approval takes effect, that is for building work or operational work necessary for the material change of use of premises to take place. related approval, for a development approval for reconfiguring a lot (also the earlier approval), means – (a) the first development permit for a development application made to a local government within 2 years of the start of the relevant period, that is - (i) to the extent the earlier approval is a preliminary approval – for the reconfiguration; or (ii) to the extent the earlier approval is a development permit for reconfiguring a lot – for operational work related to the reconfiguration; and (b) each further development permit, for a development application made to a local government within 2 years of the day the last related approval takes effect, that is for operational work related to the reconfiguration. would not arrive until October 2011 (at the end of the standard four years), on the basis that the approval took effect upon the discontinuance or withdrawal of the submitters’ appeal. In IPA as originally enacted, the period provided for in s 3.5.21 was called the currency period. [5] There are indications in s 3.5.21, in subsection (4) in particular, that where alternatives may be available, a person with the benefit of an approval should have the longer relevant period rather than the shorter one. [6] Section 3.5.21 requires recourse to s 3.5.19 to identify when an approval takes effect. It is important to know the date, given that, by 3.5.20, only then may a development start. That provision is given teeth by s 4.3.1 which penalizes the carrying out of assessable development unless there is an effective development permit for it. -- 5 of 18 -- 6 [7] Section 4.1.47 makes provision for the case where there is an appeal about a development approval: 4.1.47 Lodging appeal stops certain actions (1) If an appeal (other than an appeal under section 4.1.30) is started under division 8, the development must not be started until the appeal is decided or withdrawn. (2) Despite subsection (1), if the court is satisfied the outcome of the appeal would not be affected if the development or part of the development is started before the appeal is decided, the court may allow the development or part of the development to start before the appeal is decided. The exception in subsection (1) is of no present relevance. Such arrangements precluding the undertaking of an actual development are unsurprising given that an appeal is by way of hearing anew (s 4.1.52(1)). [8] What the court may do appears from s 4.1.54 which begins: 4.1.54 Appeal decision (1) In deciding an appeal the court may make the orders and directions it considers appropriate. (2) Without limiting subsection (1), the court may – (a) confirm the decision appealed against: or (b) change the decision appealed against; or (c) set aside the decision appealed against and make a decision replacing the decision set aside. (3) If the court acts under subsection (2)(b) or (c), the court’s decision is taken, for this Act (other that this decision) to be the decision of the entity making the appealed decision… [9] At first blush all of the provisions set out referring to a decision appear to contemplate an appeal being decided by court determination. That would not imply that there had to be a court examination of the merits: doubtless resolution of appeals by consent of the parties confirmed by a court order would amount to the court deciding an appeal. Mr Hughes submits that “when the appeal is finally decided” in s 3.5.19(1)(c) does not cover the situation of an appeal being withdrawn or discontinued. In that situation, he says paragraph (b) applies, because there was at least one submitter and no appeal by the applicant (Club Cavill Pty Ltd) against -- 6 of 18 -- 7 the Council’s decision. There was no notice under (b)(ii) so that the date of the development approval having effect was the one when the submitter’s appeal period ended, being 20 business days after the Council’s decision was given to the submitter (s 4.1.28(4)). [10] The difficulty this situation may create for a developer who succeeds in obtaining an approval is patent. A submitter appeal precludes acting on the approval as much as any other appeal. In the case of any other appeal, the developer does not lose time from the currency period/ relevant period, which would not start to run until the appeal is determined. It is assumed that there will be an approval at that stage. In a scenario like the present one, the developer has an approval which IPA says has taken effect, so that time starts running, but which may not be acted upon. In this particular case, more than a year of the four available has been lost. [11] According to the respondent, which it appears would not be the entity to bear the consequences of that loss of time in which development might be implemented, that is the consequence of s 3.5.19(1)(c) on its clear meaning. The Legislature was well aware of the possibility of an appeal being withdrawn and provided for it in s 4.1.47(1). See also s 4.1.59(1). It was suggested that the court has powers under IPA to permit the making of ameliorating orders to alleviate unfairness by allowing additional time. In my opinion, depending upon the favourable exercise of a discretion is hardly a satisfactory way of dealing with the situation. [12] The explanatory notes were called in aid to support the submission that “when the appeal is finally decided” refers to the making of a decision by the court: When approvals take effect Clause 3.5.19 states when a development approval takes effect. As the clause describes, this varies depending on the circumstances. In summary the requirements are: • If there is no submitter and the applicant does not appeal the decision – from the time the decision notice (or, if relevant, the negotiated decision notice) is given; • If there is a submitter – when the submitter’s appeal period expires; • If an appeal is made – when the decision of the court is made (if an approval results). There is some variance between the language of the explanatory notes and that of the section which for some reasons says “finally decided”, rather than merely “decided”. The notes cannot be used to change the meaning of the section as enacted, in my opinion.1 To my mind, the use of “finally” may be significant and let in modes of determination other than a court adjudication. I accept that the usual meaning of “decide”, “decision” and variants in a context like the present is a judicial or similar determination by an entity having relevant jurisdiction or authority. However, there is a well understood use of the word in which it does not 1 I am grateful to Mr Gore for the reference to Netstar Pty Ltd v The Caloundra City Council [2000] QSC 298, in which he appeared (successfully). What was said there at [15] – [22] about the explanatory notes and s 4.2.1 describes what I think is the situation for s 3.5.19 -- 7 of 18 -- 8 refer to adjudication or some contest fought out to a conclusion. Thus, the 808 uses of “decide” collected in the Oxford English Dictionary Online include: • 1857 from Trollope’s Three Clerks: “of course a cause celebre such as this was not going to decide itself in one day” • 1903 from A. Watkins, Photography: “the five separate influences which decide an enlargement exposure” • 1930 from the Economist: “the number, quality and devotion of these cadres, as the industrial army is called in Russia, will decide the fate of the Industrial Revolution” • 1997 from JM Hoberman, Darwin’s Athletes: “the mid field of a soccer pitch is called the ‘engine room’ because it is where strength, tenacity and intelligence decide the course of a game” From a different source at http://www.cracked.com/article_18894_6-real-historic- battles-decided-by-divine-intervention.html : “#6. The Battle of Long Island (27 August 1776) decided by Sudden, Inexplicable Fog”. This December 2010 contribution by Jacopo della Quercia may be a less authoritative source; however, it illustrates a common and well understood usage. In similar vein from the Internet (Answerbag.com): “George W. Bush’s victory in the presidential election of 2000 was finally decided by what?”. Arguably it was not decided by the accepted procedure in an election of counting to a conclusion the votes (in Florida in particular) to ascertain what the voters “decided”. The point of this excursus has been to illustrate what I consider to be a widely accepted use of “decide”, one which in my opinion applies here.2 [13] It is no doubt the case that one would expect a particular word or variants to bear the same essential meaning within a single Act of Parliament, as Mr Hughes submitted, although this appears not to be the case for the IPA: Stockland Development Pty Ltd v Gold Coast City Council [2008] QPELR 529 5 [20] ff in relation to “affect”. It appears to be the case that in IPA, “decision”, “decide” and the like refer to determinations by the Minister, a local government or court, etcetera. One would ordinarily expect that within a particular section such as s 3.1.19, indeed within a particular paragraph of it, here (1)(c) (see also s 2.5B.48(c)), the same concept was being referred to. However, I have come to the view that “when the appeal is finally decided” indicates the time when the outcome of an appeal is known and the effects (if any) of the proceeding on the relevant development approval are known. That interpretation produces a harmonious and sensible operation of s 3.5.19(1). Once there is an appeal to the court, paragraph (c) takes over (with the meaning just set out) and there is no room for further reference to (a) or, in the present context, (b). [14] Should my view be wrong, and should a literal or grammatical interpretation lead to the conclusion that “when the appeal if finally decided” refers to a decision of the court rather than referring more generally to circumstances which incontrovertibly establish the outcome of the appeal (including a withdrawal or discontinuance), I would accept the argument Mr Hinson made that the literal meaning here must give way to the scheme of IPA which is that the “relevant period” or currency period (to 2 I was not assisted by Mr Gore’s submission on 16.2.11 that “decision” has been judicially recognized as incorporating “determination” or “result”, by reference to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321-38 and WACB v MIMCA (2004) 79 ALJR 94; 210 ALR 190 at [92]. -- 8 of 18 -- 9 adopt earlier terminology) of an approval runs from the time when the outcome of any appeal is known. Mr Hinson relied on some well known statements of the High Court, in particular from Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384: “… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out: ‘The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.’ (footnotes omitted)” and CIC Insurance Limited v Bankstown Club Limited (1997) 187 CLR 384 at 408: “…the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, nor merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, -- 9 of 18 -- 10 inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.” (footnotes omitted) [15] An argument of the respondent that had some initial attraction was based on the re- enactment of s 3.1.19 in the Sustainable Planning Act 2009 in s 339 which adds after “when the appeal is finally decided” the words “or withdrawn”. The addition is said to make plain the meaning of the IPA provision “by their absence. It would have been a simple matter for the Legislature to refer in s 3.5.19(1)(c) to “finally decided or withdrawn” if that is what it then intended”. [16] In Emerald Developments (Aust) Pty Ltd v Minister for Environment, Local Government, Planning & Women [2006] QPELR 714, Mr Hinson’s submission that in adding to the enumeration of factors that might be considered in a later enactment, Parliament was simply making “explicit what is implicit in the legislation anyway” was rejected (see 718), but here it succeeds. [17] The High Court was asked to consider later legislation in Deputy Federal Commissioner of Taxes (SA) v Elder’s Trustee and Executor Co Ltd (1936) 57 CLR 610. At 625, three of the judges said: “…if the question now before us had come up for decision before the passing of the Act of 1930, or if it were now considered independently of that Act, there would be no foundation for an interpretation of the Act of 1914 which would produce a new liability for the financial year beginning 1st June 1919 in respect of Crown leases held as at 30 th June 1914. Both presumption and reason would be against it. But sub-sec. 2 of sec. 4 of the Act of 1930 seems to be framed on the contrary view. … Doubtless the true explanation is that, in drafting the Act of 1930, it was supposed that the exclusion by the Act of 1914 of Crown leases from the exemption took effect for the financial year beginning 1st July 1914. But, in our opinion, the supposition ought not to lead us to give that effect to the Act of 1914. ‘An Act of Parliament does not alter the law by merely betraying an erroneous opinion of it’ (Maxwell, Interpretation of Statutes, 6th ed. (1920), p. 544, and, per Lord Atkinson, Ormond Investment Co. v. Betts (1928) AC, at p. 164). ‘Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute’ (per Lord Atkinson). In Cape Brandy Syndicate v. Inland Revenue Commissioners (1921) 2 KB 403, at p. 414, Lord Sterndale said: ‘I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier.’ In -- 10 of 18 -- 11 reference to this statement, Lord Buckmaster said in Ormond Investment Co. v. Betts (1928) AC, at p. 156: ‘That is, in my opinion, an accurate expression of the law, if by ‘any ambiguity’ is meant a phrase fairly and equally open to divers(e) meanings.’ But it is not permissible to construe an unambiguous phrase in an earlier Act by an erroneous assumption of its effect contained in a later Act which did not purport to alter or amend the earlier Act (per Lawrence L.J. Port of London Authority v. Convey Island Commissioners (1932) 1 Ch 446, at p. 493).” The Court of Appeal referred to that case in Johnston v Jewry [2007] QCA 188 at [31]. There it was not demonstrated that Parliament intended to change the earlier law. Subsequent legislation replacing an earlier ambiguous provision with one indicating that “contract” referred to a proposed contract rather that a completed one did not dissuade the Court of Appeal from interpreting “contract” in the original to mean proposed contract. [18] Bennion, now in a fifth edition, is helpful in this regard, Section 234 and the commentary being as follows: “Section 234. Use of later Acts in pari materia Where a later Act is in pari materia with an earlier Act, provisions of the later Act may be used to aid the construction of the earlier Act. In determining whether the later provision alters the legal meaning of the earlier, the test is whether or not Parliament intended to effect such an alteration. COMMENT ON CODE S 234 The effect of later Acts really belongs to a consideration of the technique of amendment of Acts, which is described in Code ss 77 to 84. Here we confine ourselves to Acts which are in pari material. The principle underlying the treatment of Acts which are in pari material is based on the idea that there is continuity of legislative approach in such Acts, and common terminology. A later Act may thus throw light on some aspect of an earlier. The principle is clear however. No change of meaning is to be taken as effected by the later Act unless this was intended. Blackburne J approved, in the case of Acts forming a code, use of a later Act to construe an earlier Act. Laws LJ treated the Landlord and Tenant Act 1730 and the Distress for Rent Act 1737 as a ‘single code’. He cited Timmins v Rowlison, where Lord Mansfield said: “Statutes in pari materia are to be all taken as one system to suppress the mischief … The Legislature [in the 1730 Act] made a provision where the landlord gives notice, and afterwards, [in the 1733 Act], -- 11 of 18 -- 12 this additional provision in case the notice comes from the tenant. The two laws are only parts of the same provision. Construction as one Such an intention is more readily gathered where the Acts are expressly required to be construed as one. This is a positive indication that Parliament has given its mind to the question. However because of the difficulties which have been caused by this concept of requiring Acts to be construed as one, the phrase has fallen out of use among good drafters. It is a sloppy device, almost certain to lead to trouble. If an alteration of the earlier Act is intended, it should be made textually. This is one more aspect of the distinction between precision drafting and disorganised composition. Need for ‘ambiguity’ There are dicta saying that a later Act can be looked at only where there is ‘ambiguity’. This only indicates that if the meaning that emerges on an informed construction, taking into account the later Act along with other relevant material, does not raise real doubt as to the legal meaning of the earlier enactment that is apparent apart from the later Act, that meaning prevails. Definitions Where a term is used without definition in one Act, but is defined in another Act which is in pari materia with the first Act, the definition may be treated as applicable to the use of the term in the first Act. This may be done even where the definition is contained in a later Act. Example 234.1 The Divisional Court construed the undefined term ‘offensive weapon’ in the Vagrancy Act 1824 s 4 in the light of the definition of that term laid down for different though related purposes by the Prevention of Crime Act 1953 s 1(4). Mistake by Parliament Where it appears that an enactment proceeds upon a mistaken view of earlier law, the question may arise whether this effects a change in that law (apart from any amendment directly made by the enactment). Here it is necessary to remember that, except when legislating, Parliament has no power authoritatively to interpret the law. That function belongs to the judiciary alone. When legislating, Parliament may, with binding effect, declare what the law is to be considered to be or have been. But a declaratory enactment must be intended as such. A mere inference that Parliament has mistaken the nature or effect of some legal rule does not in itself amount to a declaration that the rule is other than what it is. However the view taken by Parliament as to the legal meaning of a doubtful enactment may be treated as of persuasive, though not binding, authority. This paragraph was described by Brooke L.J. (delivering the joint judgment of the court of Appeal) as expressing ‘[t]he general rule about a ‘mistake by Parliament.’). -- 12 of 18 -- 13 Where Parliament passes an Act which on one (but not the other) of two disputed views of the existing law is unnecessary, this suggests that the other view is correct. Example 234.2 It was held that since the meaning of the House to House Collections Act 1939 which was applied in Emanuel v Smith would render the Trading Representations (Disabled Persons) Act 1948 unnecessary the latter case must be held to have been decided per incuriam. Split Acts If a single Act is re-enacted as two or more Acts, the later Acts will fall to be construed as one. Example 234.3 Lord Millett said: ‘The provisions of [the Company Directors Disqualification Act 1986] and the Insolvency Act 1986 form part of the same statutory scheme formerly contained in the Insolvency Act 1985 and must be read together…’ Delegated legislation in pari materia The court will not only be guided by later Acts but by later delegated legislation which is in pari materia with the enactment being construed. Example 234.4 The Divisional Court was called on to construe the Magistrates’ Courts Act 1980 s 114, which says that magistrates shall not be required to state a case until the applicant for this has entered into a recognisance to prosecute the appeal by case stated. The section says nothing about how the amount of the recognisance is to be fixed, or the means of the applicant. Held Guidance was to be sought from the Crown Court Rules 1982 r 26. this rule, governing appeals by case stated from the Crown Court (a higher court than the magistrates’ court), says that a recognisance shall be fixed ‘in such sum as the Crown Court thinks proper, having regard to the means of the applicant’. One finds there the requirement that the Crown Court shall have regard to the means of the applicant. In our view, although the same phrase is not to be found in section 114 of the Magistrates’ Court Act 1980, the same principle must necessarily apply to magistrates as it does to the stating of a case by the Crown Court.” [19] My view is that, on a proper analysis, s 3.1.19(1)(c) was not ambiguous in such a way as to lead to the change evident in the new s 339 indicating that withdrawal or discontinuance was not an instance of an appeal being finally decided. Reiterating, an appeal is “finally decided” for purposes of s 3.1.19 when nothing arising from it can further affect any person’s entitlements. My associate’s research unearthed a decision of the New York Tax Appeal Tribunal DTA No. 821017, Re Consolidated -- 13 of 18 -- 14 Edison Company of New York, Inc. (28 October 2010) which, following the tribunal’s referring (“remanding”) an unresolved issue, noted: Upon remand to the Administrative Law Judge, the parties decided to enter into a Stipulation of Discontinuance with respect to the issue. Administrative Law Judge Arthur S Bray issued an Order of Discontinuance dated April 29, 2010, which discontinued the remanded proceeding. As such, this matter has been finally decided. This provides an illustration of the way in which s 3.5.19(1)(c) operates, in my opinion; Although the discontinuance there was recognised in an order, that does not produce any relevant distinction from a withdrawal or discontinuance, as here, under rule 11A of the Planning and Environment Court Rules 1999. [20] The declaration sought by the applicant in the originating application should be made. [21] What goes before was prepared before 16 February 2011 when Mr Gore QC and Mr Job appeared for Sunrise Waters Pty Ltd (Receiver and Manager Appointed) (In Liquidation) and made further submissions in support of the applicant’s case. So far as use of amendments to elucidate the meaning of original legislation is concerned, additional authorities were placed before the court. In respect of the caution that should be exercised in taking an amendment into account in construing earlier legislation see what Gummow J said in Interlego AG v Croner Trading Pty Limited (1992) 39 FCR 348 at 382, likewise the need for ambiguity in the original: Allina Pty Limited v Commissioner of Taxation (1991) 28 FCR 203 at 212. Compare Grain Elevators Board (Victoria) v Dunmunkle Corporation (1946) 73 CLR 70 at 86, where it was described as a “strange result” if an express exemption in later legislation proved unnecessary. McHugh J in Hepples v Federal Commissioner of Taxation (1992) 173 CLR 492 at 539 confirmed his “difficulty with the notion that the terms of an amending enactment can throw light on the intention of an earlier enactment” – difficulty referred by four judges but not explored in Commissioner of State Revenue (Victoria) v Pioneer Concrete (Vic) Pty Limited (2002) 209 CLR 651 at 669 and in FKP Residential Developments Pty Ltd v Maroochy Shire Council [2009] QCA 403 at [2]. [22] Mr Gore referred to Hayes v Walker [2004] QCA 288; 134 LGERA 290 in which the Court of Appeal construed “development approval” in a land sale contract; as at the contract date, the Council had received the relevant development application but not determined it. The subsequent issue of a “development approval” by the Council did not produce an effective development approval by the time the controversy arose because there was instituted a submitter appeal which had not been determined. Unsurprisingly, the primary judge and the Court of Appeal considered that the meaning of “development approval” in the contract was an effective approval which could be acted upon; the purchaser was able to escape the contract. It was contended that this decision binds this court to determine the present application in favour of the applicant. Whether or not that is so, there is nothing in Hayes which would lead me to depart from the views expressed above. Gheko Developments Pty Ltd v Azzopardi [2005] QCA 283 is another “contract” case in which Hayes may be said to have been endorsed. However, as McPherson JA said at [10] in Gheko, there was no need or occasion to investigate the statutory meaning of development approval or when under the IPA it takes effect. Mr -- 14 of 18 -- 15 Hughes’ submission was that such decisions are exercises in construction of a contract, and not of the legislation. There is no point in my attempting to resolve that interesting argument between counsel now. There is some support for the application in the Court of Appeal decisions, no doubt. The relevant contractual provision here specifically picks up on the IPA section. [23] Mr Gore took up the notion of “development approvals” which are not in effect and may never come into effect, and sought to reduce to an absurdity the respondent’s argument. Club Cavill argues that paragraph (c) in s 3.5.19 cannot apply because the appeal is not finally decided upon withdrawal or discontinuance. Therefore the development approval in the negotiated decision notice never becomes effective. The respondent Club Cavill’s answer is that the situation somehow reverts to (b) so that the negotiated decision notice became effective as a development approval which could be acted upon on expiration of the submitter’s appeal period. That introduces a rather astounding aspect of retrospectivity into the situation once an appeal has been instituted by a submitter with its statutory effects on the entitlement of anyone to implement a development approval. [24] I agree with Mr Gore’s analysis of s 3.5.19(1) which identifies three different scenarios: (a) there is no submitter, and there is no applicant appeal; (b) there is a submitter, but there is no applicant appeal, and no submitter appeal; (c) there is an appeal (by either the applicant, or a submitter, or both). As the written submission puts its: “14. It seems apparent from the structure of s.3.5.19(1) that these 3 scenarios are intended to be mutually exclusive. However, on the approach contended for by Club Cavill, it is not difficult to imagine situations which are not caught by the provision, or which trigger the application of more than one of the 3 paragraphs. 15. First, take the case of an appeal by an applicant against conditions which is later withdrawn. It is impossible for such a case to come within paragraphs (a) and (b) – and yet, on Club Cavill’s argument, because the appeal was withdrawn, it does not come within paragraph (c) either. 16. Secondly, take the case of an appeal by a submitter which is later dismissed by the Court. On Club Cavill’s argument, it would appear that the approved initially has effect under paragraph (b), but then takes effect under paragraph (c). That is contrary to the mutually exclusive structure of s.3.5.19(1), and it would give rise to unsatisfactory issues of retrospectivity and uncertainty. During the period between the approval having effect under paragraph (b), and then taking effect under paragraph (c), no one would know -- 15 of 18 -- 16 whether the approval is one that would ultimately authorise development to start, or whether the approval might lapse. 17. In the example just given, if the submitter appeal remained on foot for a 4 year period (as could occur through protracted litigation), the submitter appellant could merely discontinue after the 4 year period, with the consequent that (on Club Cavill’s argument) the approval would have lapsed due to the combined effect of ss.3.5.19(1) and 3.5.21(1). That lapse would occur without the proponent being entitled to start the approved development at any time. 18. Club Cavill contends that, on a strict literal construction, the present case comes within paragraph (b). But that is incorrect. Paragraph (b) says nothing about 2 of the 3 central facts in this case – namely, the institution of the appeal, and the discontinuance of the appeal (and the third fact - the negotiated decision notice – is common to all 3 paragraphs). 19. Club Cavill also contends that, in paragraph (c) the expression ‘finally decided” is a reference to a decision by the Court. There is no warrant for reading the expression so narrowly, and the unsatisfactory consequence of Club Cavill’s contentions reinforce that no meaning was intended. One of the ordinary meanings of “decided” is “determined”, (this is consistent with the submissions of the DTMR: T1-53/31-60). An appeal is finally determined when it is discontinued. 20. Club Cavill confines the operation of paragraph (c) to a case where an appeal is determined by a court, but it is artificial to distinguish such a case from an appeal (be it by an applicant or a submitter) which is determined by a notice of discontinuance, and no good reason can be advanced for the legislature intending such different consequences from differences as to the manner in which an appeal is finally determined. (the subtlety between such an Order, and the Court granting leave to withdraw, as alluded to by Mr Hughes S.C. (at T1-37) is also demonstrative of the absurdity.” [25] Counsel combined to write to the court on 18 February 2011 drawing attention to Reid’s Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127 which was decided upon New South Wales legislation whose terms are different from those of the IPA. The outcome is consistent with that reached by me. The reasons for judgment include the following: “88. Reid’s Farms does not dispute that the operation of the consent was suspended during the period of the appeal pursuant to s 83(2). Rather, it says that the appeal did not have the effect of suspending -- 16 of 18 -- 17 compliance with the deferred commencement conditions and because the discontinuance of the appeal was not a “determination of that appeal” under s 83(2)(b), upon discontinuance the consent immediately lapsed. The practical effect of the applicant’s submission is that KSK was granted an extension of just over a month to comply with the conditions of deferred commencement, which it did not do. 89. White the Class 1 appeal remained pending the operation of the consent, including the deferred commencement conditions, was suspended (Wingecarribee Shire Council v Pancho Properties Pty Limited (2001) 117 LGERA 104 at [27] citing Swadling v Sutherland Shire Council (1994) 82 LGERA 431 at 435). 90. Accordingly, by operation of s 83(2)(a) of the EPAA, immediately upon the granting of the consent as at 16 December 2008 the consent was suspended by reason of the appeal. What then occurred once the appeal was discontinued? 91. Section 83(2)(b) states that a consent becomes operative ‘from the date of the determination of’ an appeal. In the present case, there was no determination of the appeal by the Court assuming that term is to be construed as only referring to a curial decision. 92. But this is not what the statute requires. The section merely refers to ‘the determination of that appeal’ and not the ‘the determination by the Court of that appeal’ (cf s 82A(2A)(b) which expressly refers to a determination that ‘is disposed of by the Court’, emphasis added, or s 83(5)(a) which refers to ‘a court … that finally determines an appeal or a question of law’, emphasis added). Construed in accordance with its ordinary meaning the term ‘the determination’ includes the ‘the act of coming to a decision; the fixing or settling of a purpose’, ‘a result ascertained; a solution’ and ‘conclusion or termination’ (Macquarie Dictionary, on-line edition). This includes the decision to discontinue the appeal (Swadling at 436). 93. To interpret the provision otherwise would produce the absurd result of the consent never having become enlivened, it having been suspended as a consequence of the appeal being lodged and not able to be revived (on the applicant’s logic) upon discontinuance. It would also be an interpretation that is inconsistent with the objects of the EPAA, which include the promotion and co-ordination of the orderly and economic use and development of land (s 5(a)(ii)). 94. It therefore follows that the December consent, which was not effective and operational until discontinuance of the Class 1 appeal on 23 July 2009, did not lapse on 16 June 2009.” -- 17 of 18 -- 18 [26] At the adjourned hearing, Mr Hinson felicitously described the position in this way: an appeal is finally decided when there is an absence of anything further remaining for decision. That neatly describes the approach taken by me, which is consistent with that taken in the New South Wales and New York decisions referred to above. [27] Mr Gore asked that if the matter were determined in favour of Club Cavill his client be given an opportunity to apply for additional orders calculated to protect its interest in the development approval. He instanced seeking an order that any requirement to lodge an application for extension of the approval before it lapsed be excused, and referred to Devy v Logan City Council [2010[ QPEC 96. He appeared to accept that the present application was not a suitable vehicle within which to seek orders of that kind. It would plainly have been appropriate for the court to make orders protecting Mr Gore’s client’s position. As things have been resolved, there is no necessity for anything to be done. [28] The entitlement of Mr Gore’s client to become a party could not be doubted. Mr Hughes sought that his client’s costs of 16 February 2011 be reserved, perhaps with a view to claiming them against Mr Hinson’s client. The parties will be allowed an opportunity, if desired, to make submissions about final orders. -- 18 of 18 --