Coominya Sand & Gravel P/L v Council of the Shire of Esk [2006] QCA 208 [2007] 1 Qd R 223; (2006)145 LGERA 332; QPELR 685

SUPREME COURT OF QUEENSLAND CITATION: Coominya Sand & Gravel P/L v The Council of the Shire of Esk [2006] QCA 208 PARTIES: COOMINYA SAND & GRAVEL PTY LTD (ACN 068 223 003) (applicant/applicant) v THE COUNCIL OF THE SHIRE OF ESK (respondent/respondent) FILE NO/S: Appeal No 9414 of 2005 P & E Appeal No 1768 of 2005 DIVISION: Court of Appeal PROCEEDING: Application for leave Integrated Planning Act ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 9 June 2006 DELIVERED AT: Brisbane HEARING DATE: 19 May 2006 JUDGES: McMurdo P, Jerrard JA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application dismissed with costs CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where applicant seeks leave to appeal – where first instance application dismissed – where applicant sought to vary conditions of Town Planning Consent Permit (“Permit”) – whether Permit capable of variation – whether Permit expired Integrated Planning Act 1997 (Qld), s 3.5.23, s 3.5.33, s 6.1.23 Local Government (Planning and Environment) Act 1990 (Qld), s 4.13, s 6.1, s 8.10 Associated Minerals Pty Ltd v NSW Rutile Mining Company Ltd (1961) 35 ALJR 296, cited Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, applied Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513, cited -- 1 of 7 -- 2 COUNSEL: B G Cronin for the applicant S M Ure for the respondent SOLICITORS: Andrew P Abaza for the applicant King & Co for the respondent [1] McMURDO P: I agree with Muir J's reasons. In making the following brief observations I will not unnecessarily repeat the facts, issues and legislation there set out. [2] The primary judge found that s 4.13(16) Local Government (Planning and Environment) Act 1990 (Qld) ("the LGA") had the effect that the applicant's town planning consent permit to use the subject land for sand mining, which was granted by the respondent on 12 May 1995 subject to conditions including that the consent to the use was "valid for a period of ten (10) years" (that is until 12 May 2005), had expired by the time the judge heard the application under s 3.5.33 Integrated Planning Act 1997 (Qld) ("the IPA") on 4 July 2005. This was so because the expiry of the 10 year period in a condition to the permit had the effect that the permit itself had expired on 12 May 2005, even though none of the matters listed in s 4.13(16)(a) - (d) of the LGA had occurred. [3] Section 4.13(16) relevantly provides: "Where a permit is issued ..., the right to use premises ... for the purposes specified in the permit is, subject to the conditions contained in the permit or any modifications made thereto pursuant to section 4.15, to attach to the land and be binding on successors in title and continues in force until - (a) it is revoked pursuant to section 4.14; or (b) it lapses in accordance with subsection (18); or (c) the use ceases to be a lawful use pursuant to section 3.1; or (d) it is superseded by the commencement of another use." [4] That subsection may not be expressed in the clearest of language but I do not find it ambiguous. Applied to the facts here, it has the effect that the applicant's permit to use the subject land for sand mining and related purposes attaches to the land and is binding on successors in title, subject to the conditions in the permit including the condition that the permit is valid only until 12 May 2005. The interpretation given to s 4.13(16) of the LGA by the learned primary judge is plainly right. [5] The applicant's second contention is that, because it filed its application to amend the condition limiting the time period of the permit on 22 April 2005 (before the permit expired on 12 May 2005), the primary judge had power to amend the temporal condition of the town planning consent permit despite the expiry of the time limit before the hearing. [6] The difficulty with that contention is that by the time the primary judge heard the application to extend the time period in the condition to the town planning consent use permit, the permit had expired; there was no longer any permit with conditions to amend. His Honour was right to conclude that he had no power under s 3.5.33 of the IPA to change the terms of a condition to a permit which had expired. Unlike s 3.5.23(10) of the IPA, s 3.5.33 contains no provision saving the permit from lapsing until the determination of such an application. The applicant should either -- 2 of 7 -- 3 have made a more timely application or applied to the court prior to the expiry of the permit on 12 May 2005 for an interim order to amend the condition by extending the period of the permit for a short time to enable its application to the court to be heard and determined. The primary judge was right in concluding that, because the permitted town planning consent use had expired on 12 May 2005, by the time of the hearing he had no power to make the order sought. [7] For the same reasons, the applicant's most recent application to this Court after the hearing of the application for leave to appeal for an order extending the condition limiting the time of the permit is also doomed: there is no longer any permit with conditions to amend. [8] The applicant has not demonstrated any error or mistake in law on behalf of the primary judge. Like Muir J, I would dismiss the application with costs. [9] JERRARD JA: In this matter I have read Muir J’s reasons for judgment and proposed orders, and respectfully agree with them. [10] MUIR J: Coominya Sand & Gravel Pty Ltd (“the applicant”) seeks leave to appeal from an order of the Planning and Environment Court dismissing the applicant’s application, filed 28 April 2005, to vary condition 18 of a Town Planning Consent Permit (“the Permit”). [11] Condition 18 of the Permit, issued on 8 May 1995, provides: “This approval will be valid for a period of ten (10) years from the date of issue of a Town Planning Consent Permit in accordance with condition two (2) of this Order.” [12] Condition 2 is not relevant for present purposes. The variation of condition 18 sought by the applicant was that the period specified in condition 18 be extended from 8 May 2005 to 7 May 2020. [13] The learned primary judge dismissed the application on the basis that the approval to which the condition was attached had expired through effluxion of time after the filing of the application but before its determination and that, in consequence, the Planning and Environment Court had no power to order that the condition be changed. [14] The application for the Permit was made under the Local Government Act 1936 (Qld) (“the LGA”). Section 8.10 of the Local Government (Planning and Environment) Act 1990 (Qld) (“the P & E Act”), which commenced on 15 April 1991, relevantly provided: “(9) Where, prior to the commencement of this Act, an application of any kind to which this Act refers was duly made to a local authority (but was not finally approved by the local authority or the Governor in Council, as the case may be, prior to the commencement of this Act), the application is to be dealt with as if this Act had not commenced. (9A) If that application is subsequently approved it is to have force and effect as if it were approved pursuant to this Act (but any conditions attaching thereto are still to apply as if this Act had not commenced).” -- 3 of 7 -- 4 [15] The applicant’s application for the Permit, made before the commencement of the LGA but approved after its commencement, thus had force and effect as though approved pursuant to the P & E Act. [16] The Integrated Planning Act 1997 (Qld) (“the IPA”) repealed the P & E Act and the relevant IPA provisions commenced on 30 March 1998. [17] Section 6.1.23 of the IPA relevantly provides: “(2) Despite the repeal of the repealed Act, each continuing approval and any conditions attached to a continuing [P & E Act] approval have effect as if the approval and the conditions were a development approval in the form of a preliminary approval or development permit, as the case may be. (3)Subsection (2) has effect only for the period the continuing approval would have had effect if the repealed Act had not been repealed.” [18] It is common ground that the Permit is to be regarded as a “continuing approval” for the purposes of s 6.1.23 of the IPA. [19] It is also common ground that the provision which governs the duration of the Permit is s 4.13(16) of the P & E Act. It provides: “(16) Where a permit is issued pursuant to subsection (12), the right to use premises and to erect, re-erect, or modify any buildings or other structures for the purposes specified in the permit is, subject to the conditions contained in the permit or any modifications made thereto pursuant to section 4.15, to attach to the land and be binding on successors in title and continues in force until – (a) it is revoked pursuant to section 4.14; or (b) it lapses in accordance with subsection (18); or (c) the use ceases to be a lawful use pursuant to section 3.1; or (d) it is superseded by the commencement of another use.” (emphasis added) The applicant’s contentions [20] The applicant argues that the words emphasised above in subs (16) qualify the “right to use premises and to erect, … or modify any buildings or other structures” but do not qualify the words which follow the emphasised words. It is only those words, it is said, which define the period during which the Permit continues in force. [21] The argument continues: “The right to use is dependent upon the [P]ermit, and continues in force until the happening of one of the four events listed in s 4.13(16). Even if it might be found that the use must cease by a particular date, the permit itself remains in force until it is either revoked, lapses, or where the use ceases to be lawful or is superseded by another use.” Construction of s 4.13(16) -- 4 of 7 -- 5 [22] The applicant’s argument ignores the grammatical structure of subs (16) and requires it to be read as if it provided “… the right to use premises … is subject to the conditions contained in the permit or any modifications made thereto pursuant to section 4.15 [and attaches] to the land and [is] binding …”. In other words, the construction fails to recognise the existence and positioning of the commas before “subject” and after “4.15”. [23] If it were to be assumed, in favour of the applicant, that subs (16) is ambiguous and capable of being construed either in the way preferred by the applicant or in accordance with the primary judge’s construction, the latter construction would be preferable. As the primary judge pointed out in his reasons, it was accepted prior to the commencement of the P & E Act that an approval could be subject to a time limit. In that regard, his Honour referred to Professor Fogg’s Land Development Law in Queensland.1 [24] His Honour also accurately pointed out, with respect, that s 6.1(1) of the P & E Act contemplated that approvals might be granted subject to temporal limitations. The applicant’s construction would give rise to an inconsistency between s 6.1(1) and s 4.13(16). Also, if the applicant’s argument is to be accepted, permits of the type under consideration must continue in force until one of the four requirements listed in the subsection is met, even though the right to use the subject premises ended on the expiration of the time stipulated in the permit and the permit had no continuing efficacy. In my view, it is unlikely that the Legislature would have intended such a result. [25] There is no discernable purpose to be served or benefit to be obtained by construing s 4.13(16) as the applicant contends. Under that construction, the role of the qualifying words is to stipulate that permits are issued subject to the conditions contained in the permits as modified. That is surely a statement of the obvious. Other subsections of s 4.13 make it abundantly plain that permits may be issued subject to conditions. For example, s 4.13(5) expressly provides that an application under s 4.12 may be approved “subject to conditions”. Subsection (6) makes further provision for applications approved subject to conditions, as does subs (6A). Subsection (14) requires that a Permit issued pursuant to subs (12) includes the conditions attaching to the Permit. [26] The adoption of the applicant’s construction could cause unnecessary uncertainty as to rights attaching to land. Interested parties would be unable to rely on a perusal of the terms of a permit in order to see whether it had expired and was incapable of extension or alteration. [27] Another argument advanced on behalf of the applicant was that unless s 4.13(16) was given the applicant’s construction the expiration of a permit would prevent the Local Authority from enforcing conditions in it in relation to rehabilitation, remediation and the like. The Court was not referred to any authority for the proposition that obligations which had accrued under a permit prior to the date of its expiration could not be enforced against the permit holder. But accepting for the purpose of argument the correctness of the proposition, a Local Authority would be in precisely the same position in relation to enforcement, whether the Permit came 1 Sydney, Law Book Co., 1987 at 284. -- 5 of 7 -- 6 to an end by operation of s 4.13(16) or by operation of its terms. The point therefore lacks substance. [28] This appears to me to be a case in which to adopt the language of Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth): “the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, [and in consequence] must be given its ordinary and grammatical meaning”.2 Was the Court’s ability to vary the conditions of the Permit preserved by the filing of the application prior to the Permit’s expiry? [29] It is submitted, on behalf of the applicant, that the Court has an inherent jurisdiction to regulate its own processes “notwithstanding that its jurisdiction derives from [the] IPA. It would not permit its own procedures to be used as a means to prevent it making a decision on an application that may only be made to it.” [30] The respondent argues that had the Legislature intended that the filing of an application to extend the life of a permit would prevent the permit lapsing, it could easily have said so. The respondent points out that the IPA, in s 3.5.23(10), makes express provision for the continuance of development approvals after the end of their term where an application for extension is made but undecided before the conclusion of the term. That provision is contrasted with the absence of a similar provision in respect of applications under s 3.5.33 of the IPA. [31] Section 3.5.33 requires the authority to which a request to change conditions is made (in this case the Planning and Environment Court) to “assess and decide the request”, having regard to specified matters. Any changed conditions are to take effect from the day notice is given to the applicant.3 [32] In my view, s 3.5.33 is necessarily premised on the existence of a valid permit. Relevantly, it is concerned with changes to conditions of a permit. Where a permit expires, the conditions attaching to it necessarily expire with it. It follows from this, in the absence of some express or implied statutory provision preserving the existence of a permit whilst an amendment application is outstanding, that the authority’s power to vary a condition under s 3.5.33 is rendered nugatory by the cessation of the permit to which the condition attaches. [33] It is common ground that there is no express provision preserving permits from expiration whilst subject to an undetermined application under s 3.5.33. I can see no basis for the implication of such a power. The wording of s 3.5.23(10) is against any such implication. [34] It has long been established that, in the absence of some enabling provision, the making of an application for renewal during the term of a lease or licence granted under statute does not preserve the power to renew the lease or licence after its term has expired.4 The fact that the Planning and Environment Court or other determining authority may be unable to extend the term of a permit once it has 2 (1981) 147 CLR 297, 305. 3 s 3.5.33(10) IPA. 4 See Associated Minerals Pty Ltd v NSW Rutile Mining Company Pty Limited (1961) 35 ALJR 296 at 298 per Dixon CJ, Kitto, Taylor and Menzies JJ and Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 620, 621. -- 6 of 7 -- 7 expired does not appear to me to be a matter of concern. A permittee may make a timely application. It would also be within power to extend the term of a permit for a period sufficient to enable an application to be heard and determined before the permit expires. [35] In the course of argument, the view was expressed from the bench that it would have been open to the applicant to include in its application an application for an order extending the term of the Permit for a period sufficient to enable the principal application to be heard and determined prior to the expiration of the Permit. Counsel for the applicant accepted that such a course would have been open to the applicant. [36] After the hearing the applicant sought leave to amend the draft Notice of Appeal to include: (a) A ground that the primary judge erred in failing to make such an interim order; and (b) A claim for an order amending condition 18 to permit the continuation of the subject use pending the determination of the appeal or, alternatively, the determination of the application to the Planning and Environment Court, whichever is the later. [37] Nothing is to be served by the making of any such amendment or order. The primary judge did not err by not making an order for which the legally represented applicant did not apply. For the reasons already advanced, it is not open to this Court to revive the expired Permit. Conclusion [38] For the above reasons, the prospects of success of the proposed appeal are such that the granting of leave to appeal is not warranted. I would dismiss the application with costs. -- 7 of 7 --