Brisville Pty Ltd v Brisbane City Council [2007] QPEC 63 (2007) QPELR 637

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Brisville Pty Ltd v Brisbane City Council [2007] QPEC 063 PARTIES: BRISVILLE PTY LTD (Applicant) and BRISBANE CITY COUNCIL (Respondent) FILE NO/S: 2734/06 DIVISION: Planning and Environment PROCEEDING: By way of declaration ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 30 July 2007 DELIVERED AT: Brisbane HEARING DATE: 27 March 2007 JUDGE: Rackemann DCJ ORDER: I declare that the provision of a road, as shown on the plan which is exhibit PAW-19 to the affidavit of Paul Andrew Webster filed herein on 21 February 2007, which adjoins the northern boundary of the applicant’s land situated at 110 Lamington Avenue, Eagle Farm and more particularly described as Lot 29 on RP802412, would not constitute alternative access from the east, for the purposes of condition 14 of the development approval granted by the respondent in respect of the applicant’s land on or about 6 July 1999, a copy of which is exhibit PAW-3 to the said affidavit of Paul Andrew Webster. CATCHWORDS: Construction of development approval – condition requiring existing access to be closed when an alternative is available from the east – whether proposed access via a road at the northern boundary was such an alternative – where utilising the northern access would involve departure from approved plans and drawings – admissibility of extrinsic evidence – reading approval as a whole – purposive approach – relevance of burden on landowner COUNSEL: Mr C. L. Hughes SC with him Mrs N. J. Kefford for the -- 1 of 14 -- 2 applicant Mr P. J. Lyons QC with him Mr B. Job for the respondent SOLICITORS: Deacons for the applicant Brisbane City Legal Practice for the respondent [1] This proceeding concerns the proper construction of a development approval. The applicant (Brisville) owns a relatively large site at Eagle Farm, which was previously part of the old Brisbane airport. In 1999 the Council granted a development permit for a material change of use for an auction depot, storage yard, general industry and restaurant (canteen ancillary to auction depot) and a preliminary approval for building work. In the same year the Council granted a subsequent development permit to facilitate an additional building for the same use. The land has been developed and may generally be described as a large vehicle auction depot and storage yard run by Fowles Auction Group Pty Ltd, the shareholders of which own Brisville. [2] Although its address is described as 110 Lamington Avenue, Brisville’s site fronts an easement (easement B), which runs along its southern boundary. That easement connects, via another easement (easement A), to Lamington Avenue, which provides access, via those easements, from the west. That is the only access. The site is bounded to the north and east by land in different ownership within the Australia trade coast. The Gateway Arterial lies to the immediate west. There is a railway line to the south. [3] More recently, the Council has granted a development approval for the adjoining trade coast land. The approved plans show a new road which would meet the northern boundary of the Brisville site, close to its north-eastern corner. That new road would approach the Brisville site from the north, but would ultimately link to the existing road network to the east. [4] Condition 14 of the first approval granted in 1999 provides as follows: “At the time alternative access to the site is available from the east, the access from Lamington Avenue is to be closed and the alternative utilised.” [5] The issue for determination is whether the proposed new road, at the northern boundary of the Brisville site, would constitute an alternative access, within the meaning of that condition, so as to trigger the requirement to close the Lamington Avenue access and to use the new northern access instead. [6] The applicant’s contention is that, read in context, the condition relates to an alternative which, like the access from Lamington Avenue, would continue to provide access, via easement B, to the development, but via the eastern end of the easement rather than from the west. The respondent contends that the condition is not so confined and is apt to refer to an alternative access at other points, so long as it provides access from the road network to the east. [7] The development approval is a public document, which constitutes the decision of the local authority, expressed in a formal manner and is required to operate in accordance with its terms. It is not personal to the applicant. It runs with the land -- 2 of 14 -- 3 and may be relied upon by many persons dealing with the grantee (or others exercising the rights conferred by it). A breach of its terms may, under the Integrated Planning Act 1997 (Qld), result in proceedings not only at the instance of the local authority, but by any person. In construing an approval, the search is not for what the Council may have intended or the applicant understood. Each approval must speak according to its written terms, construed in context, but having regard to its enduring function.1 [8] Accordingly, the construction of a development permit is undertaken having regard primarily to the terms of the approval, as it appears on its face, together with other material, such as approved plans, where they are incorporated expressly or by necessarily implication.2 An explanatory statement in the approval itself may also be considered.3 The process of construction is however, to be aided only by evidence admissible in relation to construction and which establishes or helps to establish the true meaning of the document as the act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council.4 [9] Permissible extrinsic evidence may include evidence of the “physical reality”5 as at the time of approval (eg. the nature of the site and, I accept, its context), if that assists in understanding the subject matter and meaning of the approval or a condition contained within it. Expert evidence may also be called to explain technical terms. The scope for extrinsic evidence is however, limited. [10] There is a deal of evidence, in the material read by the parties, which is objectionable. The affidavits of Mr Webster and Mr Pekol for example, which were read by the applicant, descend into the history of the formulation of the proposal and of dealings with the Council and others about the access issue. This was in order to establish that the alternative access that was contemplated by the applicant, shown on a drawing which formed part of the Traffic Impact Assessment Report accompanying the application and was discussed in pre-approval discussions with the Council, was an eastern extension of Lamington Avenue. That might have been relevant if I were concerned with ascertaining the intention of the parties to a bilateral transaction, but that is not the exercise which I must undertake. The material also includes other objectionable evidence, including impermissible expert opinion about the proper construction of the condition. [11] Objection was taken to a significant number of passages of various affidavits. Those objections were not the subject of significant argument, save for a matter addressed below. Senior counsel for each of the parties did not seek to persuade me to adopt a different approach than one which accords with the principles outlined above. There was an acknowledgement that the material, on both sides, was, to some degree, impermissible. It is unnecessary for me to traverse each objection individually. The matters which I have taken to be relevant to the construction issue are apparent from these reasons. 1 See Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-4; House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440; and Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 005 at para [6]. 2 Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318, Hubertus Schuetzenverein Liverpool Rifle Club v Commonwealth of Australia (1994) 85 LGERA 37. 3 Crisp from the Fens Ltd v Rutland County Council (1950) 1 P&CR 48. 4 Parramatta City Council v Shell Company Australia Ltd [1972] 2 NSWLR 632 at 637. 5 Caloundra City Council v Pelican Links Pty Ltd [2005] QCA 84 per Keane JA at [22], [23]. -- 3 of 14 -- 4 [12] There was debate about the admissibility of evidence as to the implications, including the site layout, financial and operational implications, of a closure of the Lamington Avenue access in favour of the northern access. Mr Hughes SC, for the applicant, contended that it was permissible and may be important, for the court to be appraised of the possible implications of competing constructions of the condition, particularly where there is evidence that the adoption of one construction would severely frustrate or disrupt the approved use in accordance with the approved plans. He referred to a passage from this court’s decision in Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council [2001] QPELR 414 at 416, where Brabazon QC DCJ said (my underlining): “There is some room in extrinsic evidence, as the cases show. Expert evidence, in accordance with the usual principles, might be called to explain a technical term and also (in my opinion) the possible implications of different constructions of a condition. That would be particularly so where the purpose of the approval is evident. If one construction would advance the proposal while another would tend to frustrate it, then that may be an important factor in construing the true meaning of the approval.” [13] Each of the parties correctly approached the matter on the basis that Condition 14 ought to be construed in the context of the approval as a whole. Mr Hughes SC submitted that approach leads to the construction for which he contends but that, if the court were still in doubt, extrinsic evidence about the implications of the competing constructions may be considered in resolving the residual ambiguity.6 [14] Mr Lyons QC, for the respondent, submitted that the opinion expressed by Brabazon QC DCJ in the passage quoted above, was not supported by authority and was contrary to what was said in H. A. Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230. While he acknowledged that there is longstanding authority to the effect that ambiguity may be resolved in favour of the construction which places the least burden on the land owner (a proposition dealt with later in these reasons), he submitted that it was not necessary to have recourse to extrinsic evidence for that purpose in this case, since an obligation to close the existing access and accommodate the northern access (with consequential changes), would, he conceded, be plainly more burdensome than if the applicant’s construction were accepted.7 He also conceded that the court is entitled to consider “changes that may take place to promote the northern access” but again submitted that recourse to extrinsic evidence was unnecessary, since one can tell from an examination of the approved plans, the nature of what would be involved in providing access at the northeast corner.8 [15] It is ultimately unnecessary for me to reach a concluded view as to whether, as a matter of principle, extrinsic evidence, including expert evidence, is admissible to establish the possible implications of different constructions of a condition. I accept Mr Lyons’ QC submission that, in this case, sufficient can be gleaned from an examination of the approval and the approved plans, in the context of the evidence to which no objection was taken. Reference to the extrinsic evidence to which 6 See T23-24. 7 See T30-31. 8 See T53-54. -- 4 of 14 -- 5 objection was taken would not have altered my conclusion on the construction issue in this case. [16] The construction of Condition 14 for which the respondent contends is an available one, if that condition is construed in isolation. Construed in that way, the fact that the connection would be at the northern boundary would not necessarily prevent the proposed northern access from being described as one “from the east”. The condition should however, be construed in the context of the approval as a whole9 and the language of the approval should not be scrutinised in the same way as the language of a parliamentary draftsperson 10 . [17] It is the context of the approval, read as a whole, upon which the applicant relies in support of its more restricted construction of Condition 14. In particular, the applicant points to a number of other conditions of the approval which do not contemplate and indeed appear inconsistent with, the existing access being closed in favour of one at the north-eastern corner of the site. [18] There are a number of approved drawings or documents referred to in the development approval. Conditions 1 and 55 provide as follows: Actions Times to Complete Actions Guidelines for Applicants 1. Carry out the approved development generally in accordance with the approved drawing/s and/or document/s. While development is occurring on the site. This condition applies to all aspects of development within this development approval (or, if applicable, within this component of the development approval). It refers to approved plans, drawings and documents to which the approval relates and is the primary means for defining the extent of the approval. Approved plans, drawings and documents are stamped PLANS and DOCUMENTS referred to in the APPROVAL and are dated to reflect the date of determination of 9 Grace Bros v Willoughby Municipal Council [1981] 2 NSWLR 80 at 85; Sydney Serviced Apartments v North Sydney Municipal Council (No. 2) (1993) 78 LGERA 404. See also Applicant’s written submissions P 3-4, T 23; Respondent’s written submissions P 2-3, T 27. 10 Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council (No 1) supra at 416. Serenity Lakes Noosa Pty Ltd v Noosa Shire Council supra at [6]. -- 5 of 14 -- 6 the application by the Council’s delegate. For any enquiries about this condition, please contact the Assessment Manager. The extent to which plans, drawings and/or documents can be modified is constrained by ss 3.5.24 and 3.5.33 of the Integrated Planning Act 1997. 55. Maintain the approved development (including landscaping, parking, driveways and other external spaces) in accordance with the approved drawing/s and/or document/s, and any relevant Council engineering or other approval required by the above conditions. To be maintained. This condition restricts changes that can be made to the approved development. Approved plans and documents are stamped PLANS and DOCUMENTS referred to in the APPROVAL and are dated to reflect the date of determination of the application by the Council’s delegate. For any enquiries about this condition, please contact the Assessment Manager. The extent to which plans can be modified is constrained by the definition of ‘minor change’ in schedule 10 and the requirements of section 3.5.24 of the Integrated Planning Act 1997. It will be necessary to make a new application if the change is not a minor change. -- 6 of 14 -- 7 [19] The approved drawings or documents include a site plan which shows the required site layout, including driveways and onsite circulation. The visitor and staff car park11 is located at the south-western corner of the site with an access driveway to easement B. A separate access driveway, also to easement B, for other vehicles is located to the immediate east of the car park. The plan shows a ‘transportable gatehouse’ at that driveway and onsite circulation paths and loading and unloading areas for heavy vehicles using that driveway. The areas for vehicles to be displayed to customs prior to auction is shown to the immediate northwest of the visitor and staff car park. To the immediate east of that lies the building which contains offices and “auction lanes”, where vehicles are driven in as they are auctioned. The damaged vehicles auction yard is to the east of that building. The site layout plan otherwise designates areas generally in the central and the eastern parts of the site for the ‘vehicle storage yard’, ‘sold vehicle yard’ and ‘truck and machinery yard’. The areas towards the north of the site are designated for future expansion and also for the vehicle detailing shed. [20] In general terms, it may be said that the ‘front of house’ areas, including those to which customers would generally have recourse12 , are located towards the south-western part of the site and are separate from what might be called the ‘back of house’ parts of the site, where trucks circulate, load and unload and vehicles are stored and detailed. Separate driveways are maintained for vehicles entering the car park. Visitors are not required to circulate through the site in order to access the car park. That is obviously a rational approach to appropriate site planning and one which met with the Council’s approval. [21] Attention was drawn, in the respondent’s written outline, to the words “proposed interim land use” which appear on the plan under the site layout. Nothing turns on that. The words “proposed ultimate land use” appear on the left-hand side of the same plan below a drawing of the area on either side of the western boundary. That drawing shows an area of “possible future DOT road requirements” adjacent to the Gateway Arterial and how that would be accommodated. Mr Lyons QC accepted, in oral argument, that the reference to “proposed interim land use” should not be read as indicating that the land use or site layout was interim in other respects13 . [22] The approved site layout plan does not show any potential alternative access, to the northeast or, indeed, elsewhere14 . There is no qualification expressed, in Conditions 1 or 55 or on the plan, which would indicate that the site layout was subject to future modification of the kind or extent which would be associated with utilising the proposed northern access in lieu of the Lamington Avenue access. [23] If the Lamington Avenue access were to be closed in favour of the northern access, there would need to be a number of changes from the layout shown on the approved drawings. A new driveway, not shown on the site plan, would be established at the northeast corner. Unlike the access via easement B, the north-eastern driveway would be a single access point, for all vehicles, whether they be those of members of the public attending an auction or heavy trucks transporting vehicles. The gatehouse, if retained, would presumably be relocated. The new access is to be at 11 the layout of which is shown indicatively. 12 other than for damaged vehicles 13 T48. 14 There are two handwritten lines at the northern corner of the photocopy of the plan in the applicant’s material, but they were not part of the drawing at the time of the approval – T4. -- 7 of 14 -- 8 what is, in effect, the rear corner of the site, well removed from the designated areas for the car park, the vehicle display yards and auction building, to which customers would have resort. In order for customers to access those areas from the new remote access driveway (assuming those facilities are not relocated), a circulation route would have to be established, through the site. The approved plan does not contemplate circulation through the site for those vehicles and indeed does not contemplate visitor vehicles in what I have referred to as the ‘back of house’ part of the site. Further, not only would heavy vehicles arrive at a common driveway with visitors, but the onsite circulation routes for heavy vehicles, as designated on the site plan, would have to change in an unspecified way. [24] Another of the approved drawings or documents is the landscape intent plan. That plan shows, amongst other things, a continuous three metre wide landscaped buffer to the northern and eastern boundaries of the site, including in the area of the now proposed northern access. It also shows an area, including at the north-eastern part of the site, as having a grassed/natural ground surface. Access driveways are shown as being to easement B (with screening). A “possible site entry feature” is depicted at the driveway to the visitor and staff car park. The establishment of the site access at the northeast corner of the site appears at odds with the approved landscape intent plan. [25] Another of the approved documents is the stormwater management plan. That plan includes a drawing which shows typical stormwater management details. It was pointed out that the base for that drawing reflects the approved site layout, but it is unclear what, if any, changes to the management regime would be required by reason of a relocation of the access and consequential changes. [26] Establishing an access at the north-eastern corner of the site and closing that from Lamington Avenue, would result in a departure from the approved drawings or documents15 , in ways which would seem inconsistent with the obligation to carry out development generally in accordance with the approved plans and then to maintain development in accordance with them16 . That is so even accepting that some degree of deviation from the plans might not conflict with those obligations. As Mr Lyons QC conceded in the course of argument, one would not normally accept that the development, altered to accommodate the north-eastern access instead of the existing access, would be generally in accordance with the approved plan.17 Accordingly, he accepted that, on his client’s construction, Condition 1, considered in isolation, could no longer be complied with literally.18 [27] It has already been observed that the approved layout plan shows areas for car parking and separate areas for onsite manoeuvring and loading and unloading of heavy vehicles. Condition 4 requires construction and delineation of those areas. The condition provides, in part: 15 particularly the site plan, but also landscape intent plan 16 Nothing turns on the difference between the expressions “generally in accordance” and “in accordance” – see Jeff Lane Pty Ltd v Brisbane City Council [2002] QPELR 81 at 87; and Serenity Lakes Noosa v Noosa Shire Council (supra) at para [8]. 17 T 54 line 38. 18 See T 51 line 20. -- 8 of 14 -- 9 Actions Times to Complete Actions Guidelines for Applicants 4. Construct and delineate all sign (as required) the following requirements as indicated on the approved plan(s) of layout: • Parking on the site for 320 cars and for the loading and unloading of vehicles within the site. … • Manoeuvring on site of an Articulated Vehicle and for the loading and unloading of the vehicle. … Prior to commencement of the use and to be maintained. The Town Plan requires adequate on-site provision of parking, servicing and manoeuvring areas. For any enquiries about this condition, please contact the Engineering Officer. This condition specifies detailed design requirements as indicated on the approved drawings and documents to which the approval relates (see the first condition). The assessment of the proposed plans of layout has adequately considered these requirements. This condition reinforces the follow up procedure of construction, delineation and/or signage, where applicable. [28] As has also been observed, access at the north-eastern corner would necessitate consequential changes which would appear at odds with what is shown on the approved plans of layout in this respect. As Mr Lyons QC also conceded, the change of access which his client says the applicant is required to effect could cause a non-compliance with Condition 4, if that condition were construed in isolation19 . [29] Condition 38 provides as follows: Actions Times to Complete Actions Guidelines for Applicants 38 Prior to approval of B/A This condition is imposed where existing roadworks, 19 T 55-56. -- 9 of 14 -- 10 (a) Provide for the following roadworks in accordance with Council’s Subdivision and Development Guidelines: (i) Provision of separate pedestrian access to the site from Lamington Avenue at the southwest corner of the site via a gate which is to be opened to the public on viewing and auction days; (ii) roadworks, signage and line marketing [sic] clearly delineating pedestrian and vehicle access to the site from Lamington Avenue. (b) Lodge functional layouts showing requirements of above. Such functional layouts should show the treatment required from the end of Lamington Avenue reserve into the site. These plans must be approved by a Senior Engineering Officer, Technical Support Group, Development and Regulatory Services. (c) Implement the requirements and carry out the works necessitated by the above condition in accordance with the above functional layout. Written approval that this condition has been complied with it must be obtained from the Team Leader, Licensing and Prior to commencement of use and to be maintained signage and line marking are inadequate for pedestrian and vehicle access to the proposed development. For any enquiries about this condition, please contact the Engineering Officer. -- 10 of 14 -- 11 Compliance Team North, Development and Regulatory Services. [30] Condition 38(a) refers to separate pedestrian and vehicle access to the site from Lamington Avenue. As Mr Hughes SC pointed out, that must refer to access via the site frontage to easement B. Condition 38 (a)(i) expressly requires separate pedestrian access via a gate “at the south-west corner of the site”. That is in the area which is proximate to the on-site areas where customers would ordinarily resort. The condition does not, on its face, contemplate pedestrian or vehicle access in other places. The closure of the existing access in favour of a single connection at the north-east corner of the site, which is not shown as associated with any separate pedestrian access, would appear to be at odds with this condition. [31] Each of the parties sought to reconcile Condition 14 with the other conditions, discussed above, in different ways. Mr Lyons QC contended that, when read with Condition 14, the other conditions ought, in effect, be read as subject to an unexpressed qualification that the person exercising a permit must depart from what is otherwise provided for in the approved plans and documents, to whatever extent is necessary, to accommodate an alternative access from the east, wherever it might connect with the subject site. In short, that the literal interpretation of the other conditions should yield to give the greatest effect to Condition 14. Mr Hughes SC, on the other hand, contended that the “alternative access” referred to in Condition 14 should be construed as one which, like that from Lamington Avenue, provides access to the site for the development in the form otherwise approved, albeit from the east rather than from the west. In short, that interpretation of Condition 14 contended for by the respondent should be rejected in light of the other conditions. [32] Condition 14, on its face, simply requires that one access be closed and another utilized. It does not expressly require departure from the approved form of development. The approach contended for by the respondent requires a number of other conditions to, in effect, be read as subject to an unexpressed qualification which might easily have been expressed had that been the intention. Conditions which require development in accordance with approved drawings or documents, but which are also expressly subject to a requirement to depart from them to accommodate other conditions of approval or anticipated future contingencies (such as the possible future road requirements adjacent to the Gateway Arterial, depicted on the subject site plan under the heading “proposed ultimate land use”), are familiar enough. While Condition 55 requires development to be maintained in accordance with the approved drawings or documents 20 , my attention was not drawn to any express provision of the approval21 which would otherwise render the obligations to develop or maintain the site in accordance with the approved plans and drawings, subject to a requirement to depart from them, to whatever extent may be necessary, in order to accommodate a different access driveway, from the east, at any point on the subject site. 20 Condition 55 also refers to “and any relevant Council engineering or other approval required by the above conditions.” Nothing turns on that, since Condition 14 is not one which requires such an approval. 21 leaving Condition 14 to one side. -- 11 of 14 -- 12 [33] The construction for which the respondent contends would also mean that, from its inception, the development approval was subject to significant uncertainty in relation to matters which are otherwise expressly provided for. In particular, the driveways, on-site circulation and landscaping treatment, while otherwise specified, would have been subject to future change, to an unspecified and uncertain degree, depending upon the location and form of the alternative access. [34] Mr Hughes SC submitted that this uncertainty, on the respondent’s approach, may go so far as to jeopardise the legitimacy of the approval itself, since it might “risk” offending the principle that the Council’s decision to grant the approval must be sufficiently final.22 Whether the approval would be so uncertain, in the respondent’s construction, so as to be invalid as lacking finality was not however, submitted for determination in these proceedings and, in the absence of full argument on the issue, I have not assumed that it would. [35] Mr Lyons QC sought to minimise the significance of the uncertainty which would arise on his client’s construction, by pointing to the fact that the development, as shown on the site plan, consists largely of hard stand areas and that an alternative access could be accommodated, at virtually any point on the northern or eastern boundaries of the site, without interfering with the built form. It is however, evident from the approved site layout and from the terms of Conditions 4, 38(a) and 55, that the approval is concerned not just with the location of the built form but with other matters, including the provision and location of pedestrian access, vehicular driveways for different vehicles, on-site circulation and landscaping. That is unsurprising. The construction of condition 14 for which the applicant contends sits much more comfortably with the conditions of approval otherwise. [36] Mr Lyons QC contended that, even on the appellant’s construction, there is a need to read some parts of the approved drawings or documents and the approval itself, as subject to an implied qualification as to change in the event that an alternative access becomes available. Both the site layout plan23 and Condition 38(b) for example, assume that access to the site will be from Lamington Avenue. Unlike the respondent’s construction however, the applicant’s construction contemplates an alternative access which would not require departure from the approved form of development at the site, including the position of it driveways, pedestrian access, internal circulation and landscaping. The change would relate to the direction of the access route to the site via easement B. [37] The applicant’s construction is not without its own complication. It involves construing Condition 14 as, in effect, subject to an unexpressed qualification that the “alternative access” is limited in the way it contends. [38] It was submitted, on behalf of the applicant, that any residual ambiguity ought, consistently with longstanding authority, be resolved in favour of the construction which places the least burden on the land owner 24 . That approach would favour the 22 McBain v Clifton Shire Council (1995) 89 LGERA 372 and the cases cited at 374. 23 which shows the path of travel for trucks entering/exiting the eastern driveway 24 See e.g. Matijesevic v Logan City Council (No. 2) (1983) 51 LGRA 51 at 57 per Connolly J, Mariner Construction Pty Ltd & Ors v Maroochy Shire Council [2000] QPELR 334 at 336, Caloundra City Council v Taper Pty Ltd [2003] QPELR 558 at 575, Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council (No 1) supra at 416 and Serenity Lakes Noosa Pty Ltd v Noosa Shire Council (supra) at para [6]. -- 12 of 14 -- 13 construction contended for by the applicant. While acknowledging the relevance of the relative burden on the land owner, Mr Lyons QC submitted that its importance, in this case, was at a low level and that the principle of construing a planning approval that way ought now be regarded as a rule of last resort. He drew an analogy with the contemporary approach to construction of statutes, to submit that the purposive approach ought take priority. He submitted that the construction for which the respondent contended was preferable on that approach. [39] I accept, that the evident purpose of the condition or conditions of approval ought be considered in the construction process. I would also not discard a construction which was otherwise tolerably clear, simply because there was another available construction which placed a lesser burden on the land owner. That is particularly so where, as here, Condition 14 is aimed at potentially benefiting the amenity of third parties and the subject proceedings are not in the nature of a prosecution25 . That is not to say however, that the relative burden on the land owner is irrelevant in resolving residual ambiguity26 . [40] The respondent’s submissions, in this respect, focused upon the purpose of Condition 14 itself, as expressed in the guidelines to that condition which relevantly state: “This condition is imposed to ensure that non-residential traffic in Lamington Avenue is minimised”. [41] Lamington Avenue featured (and continues to feature) residential uses. The purpose of requiring the closure of Lamington Avenue access, when an alternative from the east becomes available, is evidently to minimise non-residential traffic for the benefit of the amenity in that street. [42] At the time the approval was granted, there was no certainty as to if or when any alternative access would become available from the east. Condition 14 does not require an alternative access to be obtained, rather it requires an alternative to be utilised if and when it becomes available. The alternative access was only ever a possibility, rather than a requirement or a certainty. It was contended, on behalf of the respondent, that the construction for which it contends is more consistent with a purposive approach, because it takes account of the then uncertainty, by requiring the applicant to make use of whatever alternative access from the east might become available at any point, thereby increasing the prospects of triggering the requirement to close the Lamington Avenue access, to the benefit of the amenity in that street. On the applicant’s approach, that obligation would only be triggered in the event that connection became available proximate to the eastern end of easement B. The respondent pointed evidence of matters (including the location of the railway line to the south, Queensland Rail’s then attitude to the nature of a future crossing to the east and the location of a heritage structure on land to the east) which may have adversely affected the then likelihood of a future connection at that point. Assuming the relevance of that, a connection at the eastern end of easement B was, nevertheless, a future possibility and the applicant’s approach would not have robbed the condition of potential utility at the time. 25 Esk Shire Council v John Jackson & Ors [2001] QPELR 253 at 259. 26 Mr Lyons QC acknowledged that the authorities do not support the proposition that it is irrelevant – T40 line 50. -- 13 of 14 -- 14 [43] Condition 14 is not the only condition of the development approval which has a purpose. Other conditions, to which reference has been made, also have a purpose, related to ensuring that the development is both constructed and maintained in the form that it was approved, following assessment. The function and importance of conditions of that kind are obvious. [44] It may be noted that the guidelines for Condition 1 state, in part, that (my emphasis) “this condition applies to all aspects of development within this development approval … it refers to the approved plans, drawings and documents to which the approval relates and is the primary means for defining the extent of the approval”. The guidelines for Condition 55 state, in part, that “this condition restricts changes that can be made to the approved development” and again makes reference to the approved plans and documents. The guidelines to Condition 4 state, in part (my emphasis): “This condition specifies detailed design requirements as indicated on the approved drawings and documents to which the approval relates (see the first condition). The assessment of the approved plans of layout has adequately considered these requirements. This condition reinforces the follow-up procedure of construction, delineation and/or signage, where applicable.” [45] Reference to the purpose of the conditions referred to in argument reinforces the conclusion that, read as a whole, their purpose was to require the development to be carried out and maintained in accordance with (or generally in accordance with) the form in which it was approved following assessment, but for that development to utilize a future access which might become available from the east, in lieu of that from the west via Lamington Avenue. I do not consider that the approval, read as a whole, in context and having regard to its purpose, requires the permit holder to utilize an access which would involve departing from the approved form of development in the way which would be required in the case of proposed northern access. [46] The access which must be used is one which is an alternative to the existing access from the west via Lamington Road and the easement. That route provides access to the development as approved and, in my view, Condition 14, when read in context, ought be construed as referring to an alternative which provides access to the development in its approved form, albeit from the east rather than from the west. The proposed access at the northern boundary of the site is not such an alternative and, in my view, is not one which would trigger the obligation in Condition 14 to close the existing access. I will make a declaration to that effect. [47] I have reached that conclusion without recourse to the principle of resolving ambiguity in favour of the construction which places the least burden on the land owner, but I note that my conclusion is consistent with that rule. Accordingly I would have resolved any residual ambiguity in favour of the same construction. -- 14 of 14 --