BGM Projects Pty Ltd v Hervey Bay City Council [2006] QPEC 108

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: BGM Projects Pty Ltd v Hervey Bay City Council [2006] QPEC 108 PARTIES: BGM PROJECTS PTY LTD Appellant V HERVEY BAY CITY COUNCIL Respondent FILE NO/S: BD 4694/05 DIVISION: Planning and Environment PROCEEDING: Application to determine preliminary point ORIGINATING COURT: Planning and Environment Court of Queensland DELIVERED ON: 13 October 2006 DELIVERED AT: Brisbane HEARING DATE: 17 July 2006 JUDGE: Alan Wilson SC, DCJ ORDER: Declare that, in this appeal, the Court ought not have regard to or give weight to the Respondent’s Transitional Planning Scheme Policy 11 – Sewerage, Water Supply and Transport Infrastructure Charges Policy CATCHWORDS: PLANNING – PLANNING LAW – CONSTRUCTION OF LEGISLATION – purported imposition of infrastructure charges – meaning and effect of Integrated Planning Act 1997, ss 3.5.6 and 6.1.31 Integrated Planning Act 1997 Cases considered: Aprilia Pty Ltd v Maroochy Shire Council [1999] QPELR 396 Behrens v Caboolture [1979] 39 LGRA 138 Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Cth of Australia (1980-81) 147 CLR 297 Hickey Lawyers v Gold Coast City Council [2005] QPELR 597 -- 1 of 9 -- 2 Kentlee Pty Ltd v Prince Consort Pty Ltd (1998) 1 Qd R 162 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 COUNSEL: M Hinson SC for the Appellant D Gore QC for the Respondent SOLICITORS: Deacons Lawyers for the Appellant Connor O’Meara for the Respondent [1] BGM applied to Council for permission to subdivide land into 203 lots, over five stages1 . When the application was made one of Council’s planning scheme policies, Policy 11, dealt with sewerage and water supply contributions from developers, but not charges for transport infrastructure. During the currency of BGM’s development application the Policy was amended to introduce charges of that sort and Council subsequently issued a Negotiated Decision Notice approving the application but subject to conditions, one of which (condition 65) purports to impose just that kind of charge: Payment of a contribution toward Transport Infrastructure (including pedestrian and cycleway) shall be made to Council in accordance with Planning Scheme Policy 11 or the policy current at the time of payment [2] The parties are at odds whether Policy 11 in its new form can be lawfully applied, but agreed that question should be determined now. Pursuant to an order made on 5 May 2006, the Court is to determine a preliminary point, phrased in terms referrable to the Integrated Planning Act 1997 (IPA), s4.1.52(2)(a) 2 : Whether the Court may: 1) have regard to; or 2) give weight to, the Respondent’s Transitional Planning Scheme Policy 11 – Sewerage, Water Supply and Transport Infrastructure Charges Policy (“Policy”), having regard to the commencement of that Policy on 30 April 2005 and the start of the decision stage prior to that date. [3] The original development application was made under Council’s transitional planning scheme. The assessment of the application is controlled by s 6.1.29 and the decision by s 6.1.30. Under s 3.5.11 Council’s decision must be based 1 Called an ROL, or ‘reconfiguration of lot’, application 2 4.1.52 Appeal by way of hearing anew (1) An appeal is by way of hearing anew. (2) However, if the appellant is the applicant or a submitter for a development application, the court – (a) must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; and … -- 2 of 9 -- 3 on the assessments made under Division 2 of Part 5 of Chapter 3 (ss 3.5.3 to 3.5.6) with the exception of section 3.5.4, which is excluded by s6.1.29(2). [4] BGM submits that s 3.5.6 is relevant to, and determines, the question posed as a preliminary point. Section 3.5.6(2) relevantly provides: In assessing the application, the assessment manager may give the weight it is satisfied is appropriate to a code, planning instrument, law or policy that came into effect after the application was made, but – (a) before the day the decision stage for the application started; … … (emphasis added) [5] The decision stage commenced the day after all other stages applying to the application ended3 , around 29 March 20054 . In any event, it is common ground that the decision stage started prior to the date Policy 11, in its new form, commenced - 30 April 20055 . [6] Council purported to impose condition 65 pursuant to IPA, s 6.1.31(2)(c). Section 6.1.31 relevantly provides: 6.1.31. Conditions about infrastructure for applications (1) Subsection (2) applies if – (a) a local government is deciding a development application under a transitional planning scheme or an IPA planning scheme; and (b) the local government has – a local planning policy about infrastructure or a planning scheme policy about infrastructure; or (c) a provision, that was included before the commencement of this section, in its planning scheme about monetary contributions for specified infrastructure. (2) For deciding the aspect of the application relating to the local planning policy, the planning scheme policy or planning scheme provision - (a) chapter 5, part 1 does not apply; and (b) section 3.5.32(1)(b) does not apply; and (c) the local government may impose a condition on the development approval requiring land, works or a contribution towards the cost of supplying infrastructure (including parks) under a policy or provision mentioned in subsection (1)(b). … [7] Council’s contention is, in short, that s 3.5.6 does not apply to a planning scheme policy about infrastructure and Policy 11, which was in force at the 3 IPA, s 3.5.1(1) 4 when the Environmental Protection Agency gave its referral response 5 T5.32 -- 3 of 9 -- 4 time of attaching the final conditions to the approval, should be applied in accordance with s 6.1.31 which, in the overall context of IPA, is the determinative provision in the circumstances arising here. [8] BGM’s submission is that s 3.5.6 requires Council, when assessing an application, to ignore policies which came in to effect after the application was made; and, that s 6.1.31 is not inconsistent with that requirement and, when read in conjunction with s 3.5.6 (and other provisions of Chapter 3), it authorises the imposition of later conditions but only so long as they came into effect before the ‘decision stage’ in the IDAS process – which is not, BGM says, the case here. [9] S 3.5.6 is said, by Council, to be irrelevant because it is contained in a part of the IDAS process in IPA6 which deals with the ‘assessment process’ at the ‘decision stage’ as opposed to the following Division, which deals with the ‘decision’; and, the setting of conditions in accordance with the Policy is a process which concerns, and is part of, the decision itself, and not the assessment process to which s 3.5.6 applies. In short a planning scheme policy about infrastructure is, it is said, irrelevant to the assessment process. On this analysis, s 3.5.6 (which concerns the assessment process) is not directed to the same ends as, and does not affect, the operation of s 6.1.31 which, instead, concerns the imposition of infrastructure conditions – something which only becomes relevant after the assessment stage, if an application is approved. [10] Support for this construction is said to be found in the specific wording of s 6.1.31(1) which refers, it is submitted, to the time when a local government is deciding a development application, rather than assessing it; and, because nothing in the section otherwise suggests that the time when the development application was made, and its relationship to when the policy was introduced, are influential factors in deciding whether a planning scheme policy can be applied. [11] S 6.1.31 has been, it is also said, ‘bolted on’ to Chapter 3’s IDAS process as an interim measure until all local authorities have moved to systems of IPA infrastructure charging, and its procedures stand alone for associated purposes7 . S 6.1.31 only applies to local governments which have transitional planning schemes, under which contribution conditions are still possible; in contrast, when a local authority has put in place the infrastructure planning provided for in Part 1 of Chapter 5, those conditions are no longer lawful under the Chapter 3 IDAS process (where s 3.5.6 is found) - with the effect, Council argues, that Chapter 3 cannot be intended to apply to conditions which are unlawful under IDAS. [12] In essence, the submission is that IPA’s provisions touching ‘transitional’ schemes and the practice under IDAS all indicate that these ‘policies’ about infrastructure have nothing to do with the assessment process and only come into play when the decision stage8 is reached. Because of the irrelevance of 6 Chapter 3 Part 5 Division 2 7 see Integrated Planning Act and Commentary, Local Govt Assoc of Qld Inc, p 309 8 S 3.5.11, IPA -- 4 of 9 -- 5 the infrastructure policy to the assessment process, s 3.5.6 can have no bearing on the decision. [13] Other parts of Chapter 6 make it plain, however, that there are strong threads which run between it, and Chapter 3. S 6.1.28, introducing Chapter 6 Part 1 Division 8, provides that the IDAS process in Chapter 3 must be used to assess applications brought under transitional planning schemes, and ss 6.1.29 and 6.1.30 plainly envisage that Chapter 3 applies because they modify its procedures in a number of respects9 – one of which, of particular import, is not to exclude the operation of s 3.5.6. [14] Mr Gore QC (for Council) argued that s 6.1.28 should not be read so as to give s 3.5.6 more meaning than it has on its face, and there is no need for s 6.1.31 to specifically exclude s 3.5.6 because, again, the latter is concerned with assessment and s 6.1.31 only applies at the subsequent ‘decision’ stage. It was also submitted that s 3.5.6 (and s 3.5.3) are present only for IDAS purposes manifest in s 3.5.5 (and 3.5.4) and do not have any part to play in an application under a transitional planning scheme, for which s 6.1.29 provides a complete code 10 . There is, however, dictum of this court accepting s 3.5.6 has application under a transitional planning scheme – i.e., indicating that s 3.5.6 does apply to the ‘bolted on’ sections: Aprilia Pty Ltd v Maroochy Shire Council [1999] QPELR 396 11 . [15] I was also referred to authority for the proposition that it is both lawful and appropriate for contribution conditions to require payment at the rate in force under the relevant policy at the time payment is to be made, as distinct from the date on which approval is given12 but the (now, quite old) cases mentioned in argument revolved very much on their own facts and did not involve the construction of a statute but, rather, the particular provisions of a planning scheme. The principle to be extracted, if it remains apposite, is not of assistance in a case like the present where the result turns on the meaning and effect of specific statutory provisions. [16] Last, it was submitted for Council that a distinction between existing policies under a transitional scheme and those introduced later, like infrastructure policies, is demonstrated by s 6.1.29(3) making separate reference to each. There is no compelling reason, however, to read the references to policies in s 3.5.6, and s 6.1.29, as containing some unstated qualifications or exemptions and having application to all policies except infrastructure policies. [17] The transitional provisions in Chapter 6 (relevantly, here, ss 6.1.29, 6.1.30, and 6.1.31) show how IPA applies to transitional schemes and how the IDAS process is to be used when a development application is brought to which a transitional scheme applies. Because they are transitional, some modification of the IDAS process is necessary, and plainly intended. That modification goes no further than the exclusion of s 3.5.32 under s 6.1.31, ss 3.5.4 and 3.5.5 9 For example, s 3.5.4 and 3.5.13 are expressly excluded by ss 6.1.29 and 6.1.30 and the operation of chapter 5, part 1 and s 3.5.32(1)(b) are excluded by s 6.1.31. 10 T26 11 at p401 12 Gannock Pty Ltd v Brisbane [1983] QPLR 423; Wyllie v Brisbane [1983] QPLR 393 -- 5 of 9 -- 6 under s 6.1.29, and ss 3.5.13 and 3.5.14 under s 6.1.30. Otherwise, the IDAS scheme set up under Chapter 3 operates for applications under transitional schemes, as s 6.1.28 clearly indicates that it should. [18] There are other indicia that s 6.1.31 is to be construed as part of a legislative scheme, and does not stand alone: it does not exclude ss 3.5.6 or 3.5.11 and the latter, in subsection (2), requires the decision to be based on assessments made under s 3.5.6. Although s 3.5.3 and s 3.5.6 are contained in that part of Chapter 313 which deals with the assessment part of the decision stage (as opposed to Division 3 which concerns the decision stage proper) they are an integral part of the IDAS process which applies to any application that the legislation instructs. The IDAS process, then, forms part of the statutory matrix in which s 6.1.31 operates (as s 6.1.28 confirms) and ss 3.5.3 and 3.5.6 are not excluded from the process (as are other provisions, explicitly, under ss 6.1.29 and 6.1.30). All of this suggests a legislative intention that there be an overall, coherent scheme applying to applications under transitional schemes, in which both Chapters 3, and 6, play a part. [19] Some limited support for the proposition that the sections are to be read together is found in Hickey Lawyers v Gold Coast City Council [2005] QPELR 597, in which Judge Robin QC considered the operation of ss 6.1.31(2)(c) and s 3.5.3014 and confirmed their interconnecting nature : [47] Does s 6.1.31(2)(c) stand on its own? In Evans Harch at [10] it was stated that the section was “controlled by s 3.5.30”, but that was by joint concession of the parties, and cannot in any way determine the outcome in this appeal. Following a negative pregnant approach, the specific exclusion of parts of Ch 5 and of s 3.5.32(1)(b) is an indication that the legislature intended that s 3.5.30 continue to apply. It (like s 3.5.32) is within Div 6 of Pt 5 of Ch 3 of the IPA which would naturally be read as a set of provisions about conditions of general application. On the other hand, as the more specific provision, and the one most recently visited by the legislature, s 6.1.31(2)(c) arguably has some claim to prevail. S 3.5.30(1) puts in the current statutory form a familiar principle of planning law of long standing and wide application. It would have been a simple matter for the legislature to exclude it in s 6.1.31. My conclusion is that it has not been excluded by implication from sub-s (2)(c) or otherwise. The unfortunate result may be a tension in the IPA between the two provisions. [20] When s 6.1.31(2)(c) is considered in isolation, it can be understood why Council thought it had the power to impose a condition based upon the new Policy 11. It is relevant to note, however, that the power is not absolute (Council ‘may’ impose a condition under the policy) and, once it is accepted that parts of Chapter 6 are to be read with, and in light of, Chapter 3, it becomes a matter of some significance that s 6.1.31 specifically excludes the operation of other sections, but not s.3.5.6. In a similar vein, in Hickey Lawyers it was accepted that the exclusion of Ch 5 and s 3.5.32(1)(b) in s 6.1.31(2) was an indication that it was intended that s 3.5.30 continued to apply15 . It is not a long step, following these signs on this statutory path, to suggest the power under s 6.1.31 is constrained by s 3.5.6. 13 Part 5, Division 2 14 s 3.5.30 provides that conditions attached to a development approval must be relevant, and reasonable 15 supra, [2005] QPELR 597 at [47] -- 6 of 9 -- 7 [21] Although it is true that s 3.5.6 does not specifically address transitional schemes there is nothing in its terms to suggest it should be excluded from application to matters concerning those schemes. S 6.1.28 imposes the IDAS processes, found in Chapter 3, on the transitional provisions. Again, although the Chapter 6 provisions have a ‘tacked on’ appearance, that is no reason to assume they were intended to override the very provisions touching the IDAS process to which they relate. Nor is there anything surprising in the notion that the provisions dealing with the IDAS process in Chapter 3, while designed primarily with IPA schemes in mind (in which infrastructure is addressed in a separate part) carry, for a time, a double duty and are to apply to transitional schemes while they are extant. [22] It is not ideal that s 3.5.6 falls under the heading of ‘Assessment process’ in Division 2 but it would be quite inappropriate to deem the section irrelevant simply because it has been placed under a heading which is not all-inclusive. The section is drafted primarily to deal with IPA schemes, under which reference to the applicability of policies and codes would generally take place at the assessment stage. It seems likely that, as the debate generated in this case illustrates, the drafters did not fully appreciate that issues such as infrastructure conditions could arise under changing infrastructure policies within transitional schemes. With no clear indication in the legislation that s 3.5.6 is not intended to apply to a policy which concerns imposition of conditions as part of the decision itself it seems necessary, or at least entirely appropriate, to assume that it does. [23] In the decision mentioned earlier, Hickey Lawyers v Gold Coast, Judge Robin QC also remarked that if s 6.1.31(1)(a) and (b)(i) are read literally, they relate to the time when a local government is making a decision, suggesting a condition can be imposed under a policy in force at that time (i.e. at the time the decision is being made)16 ; at para [23]: In respect of a planning scheme policy about infrastructure, however, s 6.1.31(1)(a) and (b)(i), read literally, relate to the time when a local government is making a decision. Sub-section (2)(c) authorises imposition of a condition on the development approval under such a policy. In principle, then, both Policy 16 and Policy 19, although adopted subsequent to the making of the development application, may be turned to as the source of a development approval condition. [24] The statement was, however, obiter17 and has no direct relevance here: the issues in that case did not concern the timing of the policy and his Honour did not comment (and did not need to) on the effect of a policy adopted after the decision stage has commenced. [25] Hickey also contains some comments on the legal background to the provision18 and notes that s 3.5.6(2) enacts the ‘Coty’ principle, which is concerned with the weight or effect to be given to draft planning instruments which have not yet become law. It is plain the remarks are not intended to 16 IPA section 6.1.31(2)(c) 17 The issues in the appeal did not relate to the timing of the policy: Hickey Lawyers, para [44] identifies the primary issues 18 At para [23] -- 7 of 9 -- 8 confine the section’s purpose to the principle, but were simply intended to indicate that the jurisprudence involved in it can also be applied to s3.5.619 . S 3.5.3 provides that an application is to be decided under the laws at the time it is made; were it not for s 3.5.6, any subsequent change in the law would have to be given effect to. [26] Both Council and BGM came, at times, close to a submission that the section upon which each principally relied should be construed literally. Even if the submission is accepted for one or both, the literal meaning of a statutory provision will not necessarily prevail when, as here, it is possible to chart a sensible middle course which reflects legislative intent. As the High Courts aid in Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Cth of Australia [1980-81] 147 CLR 297 at 321 20 : “[D]eparting from the literal interpretation is not confined …it extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. If the choice is between two strongly competing interpretations… the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.” [27] The passage is apposite here. The sections do not sit together in an entirely comfortable way but, once it is accepted that each is directed to the application of the IDAS process to applications under a transitional scheme, it becomes impossible to conclude other than that s 6.1.31 does not exist in a vacuum but, rather, stands within the borders of a comprehensive and detailed statutory scheme and must be construed in that context. As the High Court has said in another case 21 , each provision must be interpreted as part of the legislative scheme of which it is part, and not in isolation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 381 and 384 22 (and, the literal meaning is not, necessarily the legal meaning: at 384, para [78] and 385, para [80]). [28] This is not a case in which one section must be selected, to the exclusion of the other. Under a logical and, indeed, a literal but coherent interpretation of both sections, read together in the context of IPA’s plain intent to address both transitional and IPA planning schemes, a condition based upon a policy to which s 6.1.31 refers may be imposed at the point of the decision so long as it has commenced prior to the start of the decision stage, which commences the day all other stages applying to the application ended: s 3.5.1(1). So construed, the two provisions are not discordant but (with s 3.5.11(2)) give 19 As Mr Hinson SC pointed out, the section’s primary purpose was to overcome the kind of problem encountered in Kentlee Pty Ltd v Prince Consort Pty Ltd (1998) 1 Qd R 162; and, see Behrens v Caboolture [1979] 39 LGRA 138 20 Per Mason and Wilson JJ. 21 Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ 22 Per McHugh, Gummow, Kirby and Hayne JJ -- 8 of 9 -- 9 effect to a harmonious goal, and maintain the unity of the statutory scheme: Project Blue Sky, at 381-2. [29] More fully, the construction which accords with this analysis is that s 3.5.6 requires Council when assessing an application to ignore a policy which came into effect after the application was made and after the decision stage started. S 3.5.11(2) requires that Council’s decision be based on the assessment made under s 3.5.6. S 6.1.31 is not inconsistent with those requirements and, when read in conjunction with the Chapter 3 provisions, authorises the imposition of a condition under a policy that came into effect before the start of the decision stage, but not after. [30] Under clause 2.4.1 of Policy 11 the current application falls within the Type 2 – applications that entered the decision stage between the 1st January, 2005 and the adoption of the policy as at 27th April, 2005. The clause itself says that ‘…the policy has given weight to the awareness of applicants to have known about the policy, its impacts and the opportunities applicants had to withdraw or seek alternative conditions’ but I do not think phrases of that kind mean an applicant should be expected to contemplate and consider whether to withdraw an application on the basis of a policy that has not yet commenced by the start of the decision stage – or is assumed to have done so. [31] This analysis is persuasive that the relevant provisions of Chapters 3 and 6 have the effect, here, that when assessing this application Council should have disregarded Policy 11, and was not entitled to impose condition 65 in reliance upon it. The question posed as a preliminary point should, then, be answered in the negative. -- 9 of 9 --