Cameron v Noosa Shire Council [2006] QCA 109 [2006] 2 Qd R 299; (2006)145 LGERA 316; QPELR 719

SUPREME COURT OF QUEENSLAND CITATION: Cameron v Noosa SC [2006] QCA 109 PARTIES: IAN MILNE DIXON CAMERON (appellant/respondent) v COUNCIL OF THE SHIRE OF NOOSA (respondent/applicant/appellant) FILE NO/S: Appeal No 7232 of 2005 P & E Appeal No 84 of 1995 DIVISION: Court of Appeal PROCEEDING: Planning and Environment Appeal Application for Leave Integrated Planning Act Application for Extension of Time/General Civil Appeal ORIGINATING COURT: Planning and Environment Court at Brisbane DELIVERED ON: 13 April 2006 DELIVERED AT: Brisbane HEARING DATE: 1 March 2006 JUDGES: McMurdo P, Jerrard JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. Application for leave to appeal under Integrated Planning Act 1997 (Qld) dismissed as leave is not required 2. Application for extension of time within which to file notice of appeal allowed and time for filing notice of appeal extended to 31 August 2005 3. Appeal allowed and order made by primary judge set aside 4. Application for a declaration refused 5. Respondent to pay appellant's costs of and incidental to the application and appeal to be assessed CATCHWORDS: ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL - whether appellant has a right of appeal under the now repealed Local Government (Planning and Environment) Act 1990 (Qld) or must seek leave to appeal under current Integrated Planning Act 1997 (Qld) ENVIRONMENT AND PLANNING - COURTS AND -- 1 of 16 -- 2 TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - PROCEDURE - NOTICE OF APPEAL - whether the Court should grant an extension of time to allow appellant's appeal ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - GENERAL MATTERS - where respondent wished to develop his freehold land in a "rural preservation zone" as defined in local town planning scheme - where respondent granted approval to develop land as a cabin park - where respondent lodged claims for compensation for injurious affection of his interest in his land caused by amendments to town planning scheme - where respondent appealed to Planning and Environment (P & E) Court from appellant's failure to decide compensation claims - where appeal as to compensation application has not yet been heard - where respondent also applied to P & E Court to decide question of whether s 3.5(4)(c) Local Government (Planning and Environment) Act defeated his claims for compensation - where P & E Court declared that s 3.5(4)(c) does not apply to claims for compensation arising out of amended town planning scheme - where respondent appeals against declaration - whether respondent's claims for compensation for injurious affection to his interest in land are not payable because of s 3.5(4)(c) Local Government (Planning and Environment) Act - whether exception in s 3.5(4)(d) Local Government (Planning and Environment) Act might also apply to respondent's claims for compensation Integrated Planning Act 1997 (Qld), s 4.1.56, s 6.1.27 Local Government (Planning and Environment) Act 1990 (Qld), s 3.5(4), s 7.4(3) Baker v Cumberland County Council (1956) 1 LGRA 321, followed Bennett v Fitzroy Shire Council [2004] 1 Qd R 494; [2003] QCA 444; Appeal No 1616 of 2003, 17 October 2003, followed Douglas v Brisbane City Council [1993] 2 Qd R 16; (1992) 78 LGERA 301, followed Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] 1 Qd R 372; [1999] QCA 510; Appeal No 7006 of 1999A, 7 December 1999, followed Kettering Pty Ltd v Noosa Shire Council [2001] QCA 106; Appeal No 429 of 2001, 20 March 2001, followed Kettering Pty Ltd v Noosa Shire Council [2002] QCA 16; Appeal No 429 of 2001, 8 February 2002, followed Kettering Pty Ltd v Noosa Shire Council (2004) 78 ALJR 1022; [2004] HCA 33, 23 June 2004, followed Leisuremark Australia Pty Ltd v Council of the Shire of Noosa (No 1) [1994] QPLR 263, cited -- 2 of 16 -- 3 Sparke v Noosa Shire Council [2001] 1 Qd R 344; (1999) 107 LGERA 1; [1999] QCA 361; Appeal No 10435 of 1998, 27 August 1999, applied Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 Qd R 210, cited T M Burke Estates Pty Ltd v Noosa Shire Council [1998] 2 Qd R 448, followed COUNSEL: C L Hughes SC, with T N Trotter, for the appellant R S Litster for the respondent SOLICITORS: Wakefield Sykes for the appellant Hopgood Ganim Lawyers for the respondent [1] McMURDO P: This matter concerns the correctness of a declaration made by a judge of the Planning and Environment Court that s 3.5(4)(c) of the now repealed1 Local Government (Planning and Environment) Act 1990 (Qld) ("the earlier Act") does not apply to any claim for compensation arising out of the amendment of the Town Planning Scheme for the Shire of Noosa ("the planning scheme") dated 14 November 1991. [2] The respondent, Mr Cameron, was interested in developing his freehold land on the Noosa North Shore as a cabin park. His development application to the appellant, the Council of the Shire of Noosa ("the Council"), was finally approved by the Planning and Environment Court on 4 February 1994.2 On 3 October 1994 Mr Cameron lodged two claims for compensation in respect of his land claiming his interest in it had been injuriously affected by the amendment to the planning scheme. On 1 March 1995 he appealed to the Planning and Environment Court from the Council's failure to decide the claim for compensation.3 The appeal as to the compensation application has not yet been heard. Mr Cameron applied to have the issue of whether s 3.5(4)(c) earlier Act defeated his claim for compensation under s 3.5(1) of that Act determined as a preliminary legal issue in his appeal to the Planning and Environment Court. This appeal is from the declaration made in response to that application. Does the appellant have a right of appeal to the Court of Appeal? [3] The transitional provisions of the Integrated Planning Act 1997 (Qld) ("the current Act"),4 which replaced the earlier Act and came into force on 30 March 1998, have the following effect. Because Mr Cameron's application for compensation had been made but not decided and because his appeal to the Planning and Environment Court had been made but not determined before the current Act came into effect, his application must be decided5 and the proceeding in the Planning and Environment Court continued and completed as if the earlier Act had not been repealed.6 The primary judge's decision was made and the pending appeal will be heard and determined under the earlier Act. The transitional provisions of the Act make no 1 See s 6.2.1 Integrated Planning Act 1997 (Qld), operational 30 March 1998. 2 See Leisuremark Australia Pty Ltd v Council of the Shire of Noosa (No 1) [1994] QPLR 263. 3 This is deemed to be a rejection of the claim by the Council: see s 3.5(14) earlier Act. 4 Section 6.1.27. 5 Section 6.1.27. 6 Section 6.1.39 and s 6.1.50. -- 3 of 16 -- 4 specific reference to appeals from a decision of the Planning and Environment Court to the Court of Appeal. [4] Both parties consider there is some uncertainty as to whether in these circumstances the Council has a right of appeal from the primary judge's decision under s 7.4(3) of the earlier Act or whether leave to appeal is necessary under s 4.1.56 of the current Act. Under the earlier Act a local government or a person who felt aggrieved by a determination of the Planning and Environment Court had a right of appeal to the Court of Appeal where there was an error or mistake of law: s 7.4(3). The decision this Court is asked to review plainly concerns a question of law so that the appellant has a right of appeal if the earlier Act applies. Under s 4.1.56 of the current Act a party to a proceeding may appeal on similar grounds to those provided under the earlier Act but only with leave of the Court of Appeal or a judge of appeal.7 The Council filed an application for leave to appeal within the prescribed time so that, if it has a right of appeal under the earlier Act and leave was not required under the current Act, it would need an extension of time within which to appeal. [5] A similar question as to whether there was a right of appeal under the earlier Act arose in Bennett v Fitzroy Shire Council8 but because of the approach taken by this Court on the substantive issues it was not there necessary to determine that question.9 Although this Court could adopt a similar stance in this case, Mr Cameron's counsel urges the Court to determine the question because there are other cases before the Planning and Environment Court where it is likely to arise in the future. [6] In Kettering Pty Ltd v Noosa Shire Council10 this Court in comparable circumstances considered that there was a right of appeal and that time should be extended to file the notice of appeal. That conclusion is also consistent with the approach of this Court in Holts Hill Quarries Pty Ltd v Gold Coast City Council11 and McPherson JA's observations there cited in Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd.12 A right of appeal in an existing proceeding is not a mere procedural matter and will not be retrospectively removed or diminished unless that is the clearly stated legislative intent. No such intent clearly emerges from any of the provisions of the current Act. [7] The better view seems to be that the Council has a right of appeal under s 7.4(3) earlier Act which was effectively preserved by the transitional provisions in the current Act. This conclusion is also consistent with the approach of the parties in Sparke v Noosa Shire Council13 where it was common ground that the right to appeal under the earlier Act was preserved by s 20 Acts Interpretation Act 1954 (Qld). [8] The application for leave to appeal should be dismissed as leave is not required. Mr Cameron's counsel sensibly concedes that his client has suffered no prejudice from the late filing of the notice of appeal on 30 August 2005 where the 7 The current Act, s 4.1.56(2). 8 [2004] 1 Qd R 494; [2003] QCA 444; Appeal No 1616 of 2003, 17 October 2003. 9 Above, 496 [5]. 10 [2001] QCA 106; Appeal No 429 of 2001, 20 March 2001. 11 [2001] 1 Qd R 372; [1999] QCA 510; Appeal No 7006 of 1999A, 7 December 1999. 12 [1991] 2 Qd R 210, 218. 13 [2001] 1 Qd R 344; [1999] QCA 361; Appeal No 10435 of 1998, 27 August 1999. -- 4 of 16 -- 5 misconceived application for leave was filed within time. The Council should not be deprived of its right to appeal because of the understandable confusion as to whether leave was required. I would extend the time for filing the notice of appeal until 31 August 2005. The planning scheme before amendment [9] I turn now to the substantive issues for consideration. [10] Under the planning scheme's Part B - Zoning, Div 3 - Intent of Zones, cl 9 divided land in the Noosa Shire into 21 zones "which provide a mechanism for guiding and controlling the distribution, mixing and segregation of the various land uses. …". [11] Mr Cameron's Noosa North Shore land was in the "Rural Preservation Zone". That zone was described in cl 10(15) of Div 3 in these terms: "This zone is only applied to freehold land on the North Shore of the Noosa River. The Strategic Plan recognises the role of the North Shore environment as a significant attraction to tourists. Due to the importance of the North Shore in terms of its environmental and conservation qualities, together with its proximity to the Cooloola National Park, the range of land uses permitted with or without the consent of Council is considerably restricted. Similarly, the extent to which land may be subdivided is also restrictive as compared to other rural areas of the Shire. A Development Control Plan will guide and control the extent of any future development upon the North Shore. Council may be prepared to give consideration to applications for low key tourist accommodation, provided that it is satisfied that there is clear compatibility with the nature and character of the North Shore environment. The Development Control Plan will provide guidelines for the location of such facilities and the methods by which such proposals will be assessed." [12] The planning scheme's Part B Div 4 contained a table of zones listing permitted development; permitted development subject to conditions; consent development and prohibited development for each zone. One of the consent developments of the Rural Preservation Zone included "cabin parks". [13] The term "Cabin" was defined in the planning scheme's Part A Div 1 - Explanatory Definitions as "A free-standing dwelling unit or accommodation unit, not exceeding eighty (80) square metres in gross floor area". [14] The term "Cabin park" was defined in Part A Div 2 - Use Definitions as: "Any premises used or intended to be used for the erection of two (2) or more cabins, where the cabins:- (a) are intended to provide overnight or holiday accommodation for the general touring or holidaying public, and (b) are not located or intended to be located on lots on a Group Titles Plan or a Building Units Plan. The term does not include an accommodation building, caravan park, group housing development, hotel, multiple dwelling, relocatable homes park or retirement community as herein defined". -- 5 of 16 -- 6 [15] The term "Use" was defined in Part A Div 1 – Explanatory Definitions of the planning scheme as: "The development of any premises for any purposes herein defined. The term includes:- … (b) any development which is ancillary to the use of the premises in question." The term "Premises" is defined as "Any land, building or other structure or any part thereof". The relevant amendments to the planning scheme [16] On 14 November 1991 the planning scheme's Part B Div 3 - Intent of Zones was amended by replacing the previous cl 10(15) description of Rural Preservation Zone with a new subclause which included the following: "Noosa's North Shore is a strategically placed and largely undeveloped section of coastal plain. The area is of major importance due to its own intrinsic environmental qualities and attracts many visitors. In addition, the North Shore acts as a gateway and buffer to the larger wilderness area of Cooloola National Park and in this regard is an important thoroughfare for visitors to Fraser Island and the Great Sandy Region. Man made developments and the associated servicing requirements such as a bridge over the Noosa River, power poles, roads, etc., have a great potential to irrevocably change the character of the North Shore. If this occurred, the ability of the North Shore to serve the critical functions described above may be significantly impaired, to the detriment of the Shire of Noosa and the Cooloola National Park. It is therefore Council's intention to exercise stringent controls on land use and subdivision. Setting aside development proposals, it is also Council's intention not to support any bridge proposal over the Noosa River. The Rural Preservation Zone is only applied to freehold land on the North Shore and as the name implies, it provides for restrictive controls with only a limited range of permitted and permissible uses. Similarly, subdivision potential is more limited compared with other rural areas of the Shire. A further and important aspect of Council's intent for the Rural Preservation Zone is that it is unlikely to give favourable consideration to rezoning applications which provide for more intensive development or increased subdivision potential. In determining applications for consent within this zone, Council will have regard to the importance of preservation of the Cooloola landscape and favourable consideration may only be given to applications comprising limited and unobtrusive uses. Consistent with this intent, favourable consideration is unlikely to be given to applications involving clearing of vegetation, which will significantly alter the character of the area." [17] A new Div 7 - Rural Preservation Zone was added to Pt G - Special Requirements for Development in Particular Zones, cl 65A of which relevantly provided: "(2) Premises shall not be erected or used for [cabin parks] located within the Rural Preservation Zone, unless the performance standards specified ... are met". -- 6 of 16 -- 7 [18] The relevant performance standards required a minimum site area of 10 hectares, a maximum density of one cabin per two hectares and a maximum number of 50 cabins. [19] Clause 65A(3) of the planning scheme provided: "Notwithstanding … Council may dispense with or modify all or any of the requirements, if it considers that such dispensation or modification is justified having regard to:- (a) The existing or proposed future development in the area; (b) The existing or proposed amenity of the area; (c) The density of existing vegetation adjacent any property boundary; (d) The particular characteristics or attributes of the proposed development; and (e) The provisions of any Development Control Plan which affects the site." The provisions of the earlier Act as to compensation [20] Mr Cameron in his application for compensation under the earlier Act claimed those amendments to the planning scheme injuriously affected his interest in his land and entitled him to compensation under s 3.5 earlier Act. That section relevantly provided: "Compensation 3.5(1) Where a person - (a) has an interest in premises within a planning scheme area and the interest is injuriously affected - (i) by the coming into force of any provision contained in a planning scheme; or (ii) by any prohibition or restriction imposed by the planning scheme; or ... the person is, subject to compliance with this section, entitled to obtain from the local government compensation in respect of the injurious affection ... and may claim that compensation in accordance with this section. … (4) Compensation is not payable - … (c) where an interest in premises is affected by a planning scheme which by its operation prescribes the space about buildings or other structures or limits the size of allotments or the number of buildings or other structures to be erected or prescribes the height, floor space, density, design, external appearance or character of buildings or other structures, …; (d) … where an interest in premises is affected by a planning scheme which by its operation prohibits or restricts the use of land or the erection or use of a building or other structure thereon for a particular purpose, unless the applicant establishes that the applicant had a legal right immediately before the provision in question of the planning scheme came into force to use the land or erect or use a -- 7 of 16 -- 8 building or other structure thereon for the particular purpose which is so prohibited or restricted; … (5) For the purposes of subsection (4)(d), it is not to be taken that an applicant did not have the legal right referred to in that subsection by reason only that the applicant's right depended upon an exercise of discretion by the local government in the applicant's favour if the applicant shows that it is reasonable to expect that the exercise of discretion would have been in the applicant's favour had it been sought immediately before the relevant provision of the planning scheme came into force. (6) The onus of proving that compensation is not payable in any case by virtue of subsection (4) is upon the local government. ..." The contentions and the primary judge's decision [21] The Council contended that cl 65A of the planning scheme affected Mr Cameron's interest in his land in that it "prescribes the space about buildings ... or limits ... the number of buildings ... to be erected or prescribes the ... density ... or character of buildings ..." on his land so that under s 3.5(4)(c) earlier Act compensation was not payable. The Council contended that his Honour erred in his construction of s 3.5(4). Section 3.5(4)(c) and not s 3.5(4)(d) applied to this case because the relevant amendments to the planning scheme restricted the potential of the land to be used at a greater intensity but for the same use (as a cabin park) but did not restrict the particular use of the land as a cabin park. [22] Mr Cameron's contention is that the effect of the statutory scheme under the earlier Act and the decided cases is that s 3.5(4)(c) can have no application where s 3.5(4)(d) applies. That is because s 3.5(4)(d), when read in conjunction with s 3.5(1) and s 3.5(5), provides a claim for compensation to those within the internal exception in s 3.5(4) so that the legislature cannot have intended to exclude by s 3.5(4)(c) Mr Cameron's right to compensation given under s 3.5(1) and by the exception to s 3.5(4). [23] Both parties agreed at first instance and in this Court that the effect of s 3.5(4) and the decided cases considering it14 is that if s 3.5(4)(d) applied to Mr Cameron's compensation claim then s 3.5(4)(c) could not. [24] The learned primary judge identified the preliminary legal issue for determination as being whether s 3.5(4)(c) earlier Act had the effect that compensation was not payable for injurious affection to Mr Cameron's interest in his land caused by the 14 November 1991 amendments to the planning scheme. The question of whether Mr Cameron had suffered injurious affection would need to be determined at the later hearing of the appeal in the Planning and Environment Court. His Honour concluded that the fact that cl 65A imposed a limit on certain sorts of buildings did not directly bring Mr Cameron's claim within s 3.5(4)(c). It may have indirectly had that effect but that was not sufficient to evoke s 3.5(4)(c). The limitation on the 14 Kettering Pty Ltd v Noosa Shire Council (2002) 120 LGERA 33; [2002] QCA 16; T M Burke Estates Pty Ltd v Noosa Shire Council [1998] 2 Qd R 448; Douglas v Brisbane City Council [1993] 2 Qd R 16; (1992) 78 LGERA 301. -- 8 of 16 -- 9 number of cabins that could be erected on Mr Cameron's land clearly fell within s 3.5(4)(d) not s 3.5(4)(c). Discussion [25] Section 3.5(1) earlier Act gives a person like Mr Cameron with an interest in land who claims to be injuriously affected by changes to a planning scheme a right to claim compensation under s 3.5. Section 3.5(4) sets out the circumstances in which compensation otherwise payable under s 3.5 is not payable, including those in s 3.5(4)(c) and s 3.5(4)(d). Although s 3.5(4)(d) sets out one set of circumstances where compensation is not payable, that is subject to the proviso there contained after the word "unless" and s 3.5(5).15 It is well-established that legislation should not be construed to deprive a person of property or its beneficial enjoyment without compensation unless the legislature has expressed that clear intention: Kettering Pty Ltd v Noosa Shire Council;16 In re Ellis and Ruislip-Northwood Urban District Council;17 Baker v Cumberland County Council.18 Significantly, s 3.5(6) earlier Act places the onus on the Council to demonstrate that compensation is not payable.19 [26] It is plain enough that s 3.5(4)(c) and s 3.5(4)(d) deal with distinct concepts. The former, which the High Court in Kettering referred to as a "good neighbour" provision,20 lays down rules as to space around buildings, the size of allotments, the number of buildings, their height, size, density, design, external appearance or character. The latter deals with the use of land or the erection or use of a building for a particular purpose.21 Clause 65A(2) of the planning scheme by its clear words proscribes the use of Mr Cameron's land for the purpose of cabin parks unless the prescribed performance standards (set out earlier in these Reasons)22 are met. A clear effect of the performance standards referred to in cl 65A(2) planning scheme is to prescribe, in the words of s 3.5(4)(c), the space about cabins built on Mr Cameron's land, to limit both the number of cabins to be built on the land and the density of the cabin buildings. The limitations placed on the use for a defined purpose on Mr Cameron's land in cl 65A(2) planning scheme are also plainly within the words contained in s 3.5(4)(d), which is subject to the internal proviso and s 3.5(5). If Mr Cameron establishes he was within the exception to s 3.5(4)(d)23 at the hearing of his compensation claim in the Planning and Environment Court appeal, his claim under s 3.5 would not be blocked by s 3.5(4)(d). On a plain reading of the words used in s 3.5(4) and giving them their ordinary meaning, Mr Cameron's compensation claim would seem to be within both s 3.5(4)(c) and s 3.5(4)(d). But can an interest in premises affected by a planning scheme resulting in injurious affection come within s 3.5(4)(d) and its proviso so that compensation is payable but then not be payable because of s 3.5(4)(c)? Considerable assistance in 15 Set out at [20] these Reasons. 16 (2004) 78 ALJR 1022, 1029 [31]. 17 [1920] 1 KB 343, 361, 374 - 375. 18 (1956) 1 LGRA 321, 332 - 333. 19 See Kettering, above, 1029-30 [32]. 20 Above, 1028-9 [28], 1030 [33]. 21 See Baker v Cumberland County Council, above, 331. 22 See [17] and [18] these Reasons. 23 That is, he "establishes that [he] had a legal right immediately before [the planning scheme amendment] came into force to use the land or erect or use a building or other structure thereon for the particular purpose which is so prohibited or restricted". -- 9 of 16 -- 10 answering this question is gleaned from the decided cases considering s 3.5(4)(c) and (d) or like provisions. [27] In Baker the subject planning scheme permitted the erection and use of buildings as dwelling houses in a "Green Belt Area" zone only (with the consent of the appropriate authority) if the houses were for resident rural workers, or each house had an area of not less than five acres of land within its curtilage, or each house was occupied in conjunction with not less than five acres of neighbouring land. Sugerman J noted that for a provision of a planning scheme to satisfy a section comparable to s 3.5(4)(c), it must appear from the planning scheme provision itself that it fulfils the statutory description; it is not sufficient that it brings about or is capable of bringing about the same result by other means.24 His Honour considered that this follows from the requirement that a legislative intention to take away a person's entitlement to compensation for the beneficial enjoyment of property must be very clearly expressed. Sugerman J found that although the indirect effect of the planning scheme requirement was to specify the space about the building, the planning scheme provision did not specifically prescribe the space about buildings; it was no more than a statement of one of the alternative conditions on which a building may with consent be erected in a "Green Belt Area" zone for the purposes of a dwelling house.25 The planning scheme provision did not bring the compensation claim within the statutory provision comparable to s 3.5(4)(c). [28] In Douglas v Brisbane City Council26 changes to the relevant planning scheme resulted in an apartment building which had been a discretionary development on the subject land becoming a prohibited development. The landowner brought a claim for compensation under a provision comparable to s 3.5. It was common ground that the landowner was within an exemption to a provision excluding the payment of compensation comparable to the exception in s 3.5(4)(d) because the landowner's interest in the land had been injuriously affected. The ordinary meaning of the words used in the statute suggested, as here, that if the landowner was also within the provision comparable to s 3.5(4)(c) compensation would not be payable. This Court considered, however, that such an unattractive result could not readily be attributed to the legislature. It interpreted the provisions of the relevant planning scheme, which are in comparable terms to s 3.5(4)(c) and s 3.5(4)(d), as demonstrating that where the equivalent of s 3.5(4)(d) applied and the landowner was within the exception to it, the equivalent of s 3.5(4)(c) did not apply to defeat the landowner's compensation claim. [29] In T M Burke Estates Pty Ltd v Noosa Shire Council27 the Council's rezoning of the land from Urban Area to Public and Private Open Space affected the land's potential future use. In a claim for compensation under s 3.5 this Court held that s 3.5(4)(d) rather than (c) applied where there was a rezoning of land to a less intensive use, even though the rezoning also indirectly affected the size of allotments on the land under s 3.5(4)(c).28 The Court stated that to apply s 3.5(4)(c) to a case within the exception in s 3.5(4)(d) and s 3.5(5) would be a consequence unintended by the legislature; parliament could not have intended to avoid the payment of 24 Above, 332. 25 Above, 333. 26 [1993] 2 Qd R 16; (1992) 78 LGERA 301. 27 [1998] 2 Qd R 448. 28 At 450 - 451. -- 10 of 16 -- 11 compensation where planning scheme changes have specifically concerned the use of land or to deprive the exception to s 3.5(4)(d) and s 3.5(5) of any operation in a circumstance when the legislature plainly intended it to have effect; compensation remained payable despite s 3.5(4)(c). The Court distinguished between the direct operation of a change in use to which land may be put and its indirect operation, which may also affect matters such as the size of allotments or other matters set out in s 3.5(4)(c). [30] In Kettering Pty Ltd v Noosa Shire Council29 the land the subject of a compensation claim under s 3.5 was zoned "Rural Pursuits" until the planning scheme was amended with the restrictive effect of limiting the number of house sites and group title units that could be approved in a rezoning and subdivision of the land. The Court of Appeal found that Kettering Pty Ltd was not entitled to compensation from the Council because the amendment had only a remote or indirect effect on the value of the land. Davies JA, with whom Ambrose J agreed, noted that T M Burke was authority for the proposition that to give s 3.5(4)(d) "an operation in an area in which it appears plainly to have been intended to operate to permit payment of compensation, that is, where the exception applies, [s 3.5(4)(c)] must be given a limited meaning: [it] must be construed so as not to include the case where the operation of a planning scheme affects primarily the use of the land and only, in consequence of that affection, indirectly the size of allotments or the subdivision of land. To give [s 3.5(4)(c)] a broader construction in such circumstances would be to circumvent the operation of [the exception in s 3.5(4)(d)]." 30 [31] That decision was the subject of an appeal to the High Court: see Kettering Pty Ltd v Noosa Shire Council.31 In a unanimous judgment the High Court noted the expansive language used in s 3.5(1). The court considered that s 3.5(4) did not have the effect that compensation would be excluded where the coming into force of a provision of a planning scheme had only a remote or indirect effect on the value of a person's interest in land; these expressions appeared nowhere in the earlier Act. The pertinent planning scheme amendments did not prohibit Kettering Pty Ltd's use of the land but affected its potential for subdivision and greater intensity of use rather than its use for a particular purpose. The court noted that "restricts" in s 3.5(4)(d) should not be given a strained or artificial meaning such as "by having a strong bearing upon". The language of s 3.5 did not require a distinction to be drawn between direct and indirect effects. To do so would be to introduce imprecise concepts.32 The court noted judicial pronouncements favouring dispossessed landowners, for example, Gaudron J's observations in Marshall v Director General, Department of Transport33 and that s 3.5(6) imposes the onus upon the Council to demonstrate that the case falls within an exception including compensation.34 The court also considered "that the language of s 3.5 does not, except perhaps for the 'good neighbour' provisions, which may give rise to reciprocity of benefit and obligation, disclose the policy underlying the legislative selection of the cases for the exclusion of compensation. There is no doubt that a restructuring and rewording of the relevant provisions to ensure consistency of expression when consistency of 29 (2002) 120 LGERA 33; [2002] QCA 16; Appeal No 429 of 2001, 8 February 2002. 30 Above, 39 [20]. 31 (2004) 78 ALJR 1022. 32 Above, 1029 [30]. 33 (2001) 205 CLR 603, 623 [38]. 34 Kettering, above, 1029 [31] - [32]. -- 11 of 16 -- 12 application is intended would be useful" 35 and that a purposive construction did not assist in the interpretation of s 3.5.36 The High Court overturned the orders made by the Court of Appeal but did not consider whether the Court of Appeal was correct in interpreting s 3.5(4)(c) as having no application to a claim for compensation resulting from an amendment to a planning scheme which was within s 3.5(4)(d) and its internal exemption. [32] The Minister's Second Reading Speech to the earlier Act provides no clues to the purpose or intent of the legislature in enacting s 3.5(4)(c) and (d). [33] If the construction of those subsections turned only on their plain words I would conclude that, if an amendment to a planning scheme injuriously affected a person's interest in land by both prohibiting or restricting the use of land or the erection or use of a building or other structure for a particular purpose (s 3.5(4)(d)) and also by prescribing the space about buildings or other structures or limiting the size of allotments or the number of buildings or other structures to be erected or prescribing the height, floor space, density, design, external appearance or character of buildings or other structures (s 3.5(4)(c)), then even where that person came within the exception contained in s 3.5(4)(d), compensation would be excluded by s 3.5(4)(c). Such an interpretation would be consistent with a legislative intent to exclude compensation in respect of "good neighbour" provisions giving rise to reciprocity of benefit and obligation.37 But the words contained in s 3.5(4)(c) and (d) cannot now be considered in a vacuum without reference to this Court's interpretation of them. Statutes depriving a person of a right to compensation in respect of an interest in property are strictly construed, a principle supported by s 3.5(6) and observations of the High Court in Kettering.38 Baker and this Court's previous decisions in Douglas and in Burke as explained by Davies JA (Ambrose J agreeing) in Kettering support a different conclusion. It seems unlikely that the legislature intended, in a single factual situation, to give a right to compensation in s 3.5(1), take it away in s 3.5(4)(c) and s 3.5(4)(d) but give it back only in respect of s 3.5(4)(d). The legislative intent is therefore unclear and, consistent with the decisions to which I have referred and which this Court should follow, where a compensation claim under s 3.5(1) comes within the internal exception to s 3.5(4)(d), even if the claim is also within s 3.5(4)(c), the legislature cannot have intended that compensation be denied. The learned primary judge was right in reaching a similar conclusion. Was the declaration rightly made? [34] There remains however a difficulty with the declaration. It cannot be clear whether the exception set out in s 3.5(4)(d) applies to Mr Cameron's compensation claim until the facts are determined at the still pending hearing in the Planning and Environment Court. Section 3.5(4)(c) will only be excluded from application where Mr Cameron is found to have an interest in the land which has been injuriously affected by the amendment to the planning scheme and he establishes that he had a legal right immediately before those amendments came into force to use the land or erect the cabins for a particular purpose which has been prohibited or restricted. If he does not establish he is within the internal exception to s 3.5(4)(d) he will be 35 Above, 1030 [33]. 36 Above, 1030 [34]. 37 Cf Kettering (High Court), above, 1030 [33]. 38 Above, 1028-9 [28]. -- 12 of 16 -- 13 excluded from claiming compensation under both s 3.5(4)(c) and s 3.5(4)(d). These issues must be determined at the hearing of Mr Cameron's application for compensation in the Planning and Environment Court. The Council was right to resist Mr Cameron's application for a declaration; it was premature. The declaration should be set aside. [35] I would extend the time period within which to appeal to 31 August 2005, allow the appeal and set aside the order made by the primary judge. I would instead refuse the application for a declaration. The respondent should pay the appellant's costs of and incidental to the application and appeal to be assessed. [36] Should the respondent wish to apply for an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld) he should do so in compliance with Practice Direction No 1 of 2005 para 37. [37] JERRARD JA: In this proceeding I have read the judgment of the President, with which I agree, and I gratefully adopt her description of the relevant facts, and of the provisions of clause 3.5 of the Local Government (Planning and Environment) Act 1990 (Qld) (“the Act”). [38] Both the appellant Council’s senior counsel and the respondent’s counsel submitted on the appeal to the effect that a planning scheme to which s 3.5(4)(c) applied could not also be a planning scheme to which (d) applied, and vice versa. The respondent’s counsel made as his principal submission the argument that the amendment made by the Order in Council published on 14 November 1991 in the Government Gazette (“the amended scheme”), amending the planning scheme for the Shire of Noosa which had been published in the Gazette on 4 May 1985, resulted in that amended scheme being one to which (d) applied. The argument was that (d) applied because the respondent’s interest in his land was affected by a planning scheme which by its operation prohibited or restricted the use of that land or the erection or use of a building or other structure thereon for a particular purpose. The particular purpose was that of the use of the land as a cabin park. [39] A cabin park is a use for which a definition is provided in Division 2 of Part A of the scheme.39 The respondent’s land at all relevant times was within the “Rural Preservation Zone” in the town scheme, those zones being established in Appendix X in Clause 4 of Division 1 of Part B of the scheme. Clause 5(2) in Division 2 of Part B of the scheme provides that the purposes for which development may be carried out only with the consent of Council in each zone shall be the purposes set forth in column 4 of the Table of Zones. That Table of Zones appears in Division 4 of Part B. Column 4 includes amongst the consent development listed in the column the term “cabin parks”. Division 2 in Part A of the scheme provides a definition of “cabin park”, that definition being described as given for “those purposes indicated in the Table of Zones”. It followed from all this that use of the respondent’s land for the purposes of a cabin park or cabin parks was a specifically acknowledged purpose for which development might be carried out on his land, albeit only with the consent of Council. 39 The scheme as published on 4 May 1985 was earlier amended as specified in the Gazette on 15 December 1990; see AR 20 and 23. -- 13 of 16 -- 14 [40] The amendment to the town planning scheme effected by the Order in Council published 14 November 1991, and by clause 65A(2), relevantly provided that land located within a rural preservation zone should not be used for the purpose of “cabin parks” unless specified performance standards were met. Those standards included that the maximum density would be one cabin per two hectares, the maximum number of cabins would be 50, and the minimum site area was 10 hectares. No evidence had been led before the learned trial judge, or this Court, as the matters that the Council would properly take into consideration when considering whether to grant consent for a development for the purpose of “cabin parks” prior to that amendment coming into force. Both parties argued the appeal on the assumption that prior to the amendment the Council did not have a policy restricting the use of land for the purpose of cabin parks to a minimum site area of 10 hectares, or with a maximum density of one cabin per two hectares, or with a maximum number of cabins of 50. [41] On those assumptions I consider s 3.5(4)(d) would apply to the amended scheme. Mr Cameron’s interest in his land was affected by a planning scheme which by its operation restricted the use of land for a particular purpose, namely the purpose of cabin parks. It also restricted the erection of buildings for that particular purpose, because it restricted the number of buildings that could be erected on Mr Cameron’s land, should he be given the Council’s consent to use the land for that purpose. The planning scheme as amended did not prohibit the use of the land for that purpose, but it did have a restrictive effect on the use of it for that purpose, and did so quite explicitly. [42] I add that Mr Cameron’s counsel contended that what mattered was whether the amended town planning scheme attached to (d), not whether Mr Cameron established that he fell within the exception within (d). That is, what mattered was whether Mr Cameron’s land was prima facie affected by that planning scheme as described in (d), not whether or not Mr Cameron could establish an existing legal right, immediately before the amended scheme came into force, to use the land for the purpose of cabin parks. Senior counsel for the appellant did not challenge that approach. [43] Accordingly, I consider that the learned trial judge was correct in being satisfied that s 3.5(4)(d) of the Act had application to Mr Cameron. But I respectfully disagree with the view that it follows that s 3.5(4)(c) did not. I acknowledge that in Douglas v Brisbane City Council [1993] 2 Qd R 16; (1992) 78 LGERA 301, this Court, when applying the very similar terms of s 14(1)(c) and (d) of the then City of Brisbane Town Planning Act 1964 (Qld), wrote that s 14(1)(d), corresponding to s 3.5(4)(d) of the Act, was unequivocally concerned with the purpose for which a building was used, whereas s 14(1)(c), corresponding to s 3.5(4)(c) of the Act, was concerned with provisions which prescribed, not prohibited, and with provisions which laid down requirements which were to be met, not with prohibitions on what might be done. Further, s 14(1)(c) contained a series of descriptive features unrelated to a building’s use, such as height, floor space, design, external appearance, or character. The High Court in Kettering Pty Ltd v Noosa Shire Council (2004) 78 ALJR 1022 described s 3.5(4)(c) of the Act as applicable to planning schemes affecting the size of allotments and features peculiar to buildings, those being so-called “good neighbour” provisions, referring to Fogg, Land Development Law in Queensland (1987) at page 713. In Douglas v Brisbane City Council this Court considered that s 14(1)(d) of the City of Brisbane Town Planning -- 14 of 16 -- 15 Act applied to the particular matter under consideration there, and not s 14(1)(c), because the latter section was not “directed to a prohibition on the erection or use of a building for a particular purpose on the Respondents’ land.” If one substitutes “restriction” for “prohibition” in that passage from Douglas v Brisbane City Council, it would follow that s 14(1)(c) – and logically s 3.5(4)(c) of the Act – is not directed to a restriction upon the erection or use of a building for a particular purpose on Mr Cameron’s land. [44] Bearing all that in mind, I still consider that s 3.5(4)(c) also applies to Mr Cameron, because in turn his interest in his land was affected by the amended planning scheme, which by its operation both prescribed the space about buildings or structures i.e. cabins, and limited the number of such buildings or structures to be erected i.e. one per two hectares, and prescribed the density of such buildings or other structures i.e. one per two hectares, with a maximum number of 50. I agree with the written submissions of the appellant’s senior counsel that it is simply impossible to conclude that provisions which restrict the maximum density of cabin parks to one cabin per two hectares, and which restrict the maximum number of cabins to 50, could be described as not falling within s 3.5(4)(c). But I disagree with his submission that it follows that s 3.5(4)(d) cannot apply for the reason he argues, namely that s 3.5(4)(c) does. [45] That means that I agree with the submission of the appellant that s 3.5(4)(c) applies, and with that of the respondent that so too does s 3.5(4)(d). That is simply because of the way in which the amending scheme has been drafted. However, both counsel accepted that it was still appropriate to apply the principle enunciated in T M Burke Estates Pty Ltd v Noosa Shire Council [1998] 2 Qd R 448, as explained by Davies JA in Kettering Pty Ltd v Noosa Shire Council [2002] QCA 16 at [20]. That principle is that s 3.5(4)(c) does not apply where its application would deprive s 3.5(4)(d) of any operation in the one circumstance in which it was plainly intended that s 3.5(4)(d) would operate to permit payment of compensation, namely where an existing legal right to use land for a particular purpose was now restricted. I respectfully consider that nothing in the judgment in Kettering Pty Ltd v Noosa Shire Council in the High Court overturned that principle of construction of s 3.5 of the Act, and that it is consistent with the requirement in Kettering40 to regard the appropriate approach as to identify with the extent to which the very expensive right to compensation conferred by s 3.5(1)(a)(i) of the Act reduced the subsequent exceptions set out in s 3.5(4). It was also consistent with the observation in the High Court that s 3.5(4)(d) was concerned with the prohibition on the use of land, or the restriction on the use of buildings or other structures, for particular purposes. The development control plan under consideration in that case, unlike the amended scheme under consideration in this one, was upon the potential of land for subdivision and greater intensity of its use, and not of use for a particular purpose, as in this matter. [46] Application of the principle of restricting the application of s 3.5(4)(c) in accordance with the decisions of this Court in T M Burke and in Kettering, an outcome consistent with the result reached and the reasoning in the High Court in Kettering, is that the prima facie applicability of s 3.5(4)(c) will be displaced if s 3.5(4)(d) applies, but only where Mr Cameron establishes that he had a legal right immediately before the amendment came into operation to use his land for the 40 At [28], in the judgment in the High Court. -- 15 of 16 -- 16 purpose of cabin parks. That is, s 3.5(4)(d) will only operate by its application, consistent with T M Burke and Kettering, to displace the application of s 3.5(4)(c) if Mr Cameron establishes the matter prescribed in s 3.5(5), namely that it is reasonable to expect that the exercise of discretion would have been in his favour had he sought immediately before the relevant provision of the planning scheme was amended to use that land for cabin parks with a greater density than one cabin per two hectares, or with more than 50 cabins. That conclusion depends on findings made after hearing evidence, and it will not be until then that Mr Cameron will learn if he has persuaded the court that s 3.5(4)(d) applies. If he does, then consistent with T M Burke and Kettering, its application in those circumstances means it would be proper to hold that s 3.5(4)(c) does not apply. [47] Accordingly, I agree with the argument advanced again on appeal by senior counsel for the appellant, and before the learned trial judge, that this question of the application of s 3.5(4)(c) could not be determined as a discrete legal issue and without the hearing of evidence. It is necessary, albeit expensive, for Mr Cameron to establish his prior right to establish that s 3.5(4)(d) applies, and therefore that s 3.5(4)(c) does not. [48] I would allow the appeal, and make the orders the President proposes. [49] HOLMES J: I agree with the reasons of McMurdo P and with the orders proposed. -- 16 of 16 --