Edgarange Pty Ltd v Redland Shire Council [1994] QCA 483 [1995] 2 Qd R 572; QPELR 146

IN THE COURT OF APPEAL [1994] QCA 483 SUPREME COURT OF QUEENSLAND Appeal No. 171 of 1994 Appeal No. 172 of 1994 Brisbane [Edgarange Pty Ltd v. Redland Shire Council] EDGARANGE PTY LTD (Appellant) Appellant - and - REDLAND SHIRE COUNCIL (Respondent) Respondent Davies J.A. Pincus J.A. Derrington J. Judgment delivered 15/11/94 Separate reasons for judgment of each member of the Court. All concurring as to the orders to be made. IN EACH CASE APPEALS ALLOWED. ORDERS MADE BELOW SET ASIDE. RESPONDENT TO PAY APPELLANT'S COSTS OF THE APPEALS TO BE TAXED. IN APPEAL NO. 171 OF 1994 DECLARE THAT THE PURPORTED EXTENSION BY THE RESPONDENT COUNCIL OF THE PERIOD IN WHICH THE RESPONDENT WAS TO DETERMINE THE APPLICATIONS THE SUBJECT OF APPEAL NO. 252 OF 1994 IN THE PLANNING AND ENVIRONMENT COURT IS INVALID BY REASON OF THE RESPONDENT'S FAILURE TO COMPLY WITH THE PROVISIONS OF S. 4.4(4C) OF THE LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990. IN APPEAL NO. 172 OF 1994 DECLARE THAT THE PURPORTED EXTENSION BY THE RESPONDENT COUNCIL OF THE PERIOD IN WHICH THE RESPONDENT WAS TO DETERMINE THE APPLICATIONS THE SUBJECT OF APPEAL NO. 257 OF 1994 IN THE PLANNING AND ENVIRONMENT COURT IS INVALID BY REASON OF THE RESPONDENT'S FAILURE TO COMPLY WITH THE PROVISIONS OF S. 4.4(4C) OF THE LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990. CATCHWORDS: STATUTE - CONSTRUCTION - PLANNING AND ENVIRONMENT - statute provided period in which local authority was to determine rezoning and subdivision application - provision for extension of that period by local authority's resolution - statute further provided where local authority extends period it must notify applicant before the extension starts - failure of local authority to notify applicant of extension before expiration of original period - whether obligatory to notify before expiration of original period - whether purported extension of period rendered invalid -- 1 of 19 -- 2 Local Government (Planning and Environment) Act 1990, ss. 4.4(4A), (4B), (4C) Counsel: Mr C.L. Hughes for the appellant Mr P. Lyons QC and Mr S. Ure for the respondent Solicitors: McCarthy, Durie, Ryan and Neil for the appellant King & Co for the respondent Hearing dates: 14/10/94 -- 2 of 19 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 171 of 1994 Appeal No. 172 of 1994 Brisbane [Edgarange Pty Ltd v. Redland Shire Council] Before Davies J.A. Pincus J.A. Derrington J. EDGARANGE PTY LTD (Appellant) Appellant - and - REDLAND SHIRE COUNCIL (Respondent) Respondent REASONS FOR JUDGMENT - DAVIES J.A. Judgment delivered 15/11/94 These are appeals from the dismissal of two applications for declarations that, in each case, a purported extension by the respondent Council of the period in which the Council was required to determine an application for rezoning and subdivision was invalid. The questions raised by the appeals are identical and it is therefore unnecessary to refer to them separately. The invalidity, it was submitted by the appellant, arose for two reasons. The first was the Council's failure to comply with the provisions of s. 4.4(4C) of the Local Government (Planning and Environment) Act 1990. The second was because the length of time for which the purported extension was granted exceeded 40 days. The appellant had been an applicant to the Council for -- 3 of 19 -- 2 combined rezoning and subdivision of land pursuant to s. 4.11 of the Act. Subsection (3A) of that section provides that the local authority must decide the combined application, where both components require a decision before the end of a period, before the end of the latest of the periods applicable to those components. In the present case s. 4.4(4) requires a local authority to decide a rezoning application within 40 days of its receipt of the statutory declaration required by s. 4.3(10); and s. 5.1(5) requires a local authority to decide a subdivisional application within 40 days of its receipt of the application or its receipt of any amended proposed plan whichever happens later. The combined application was received by the Council on 3 June 1994. There was no evidence as to whether an amended proposed plan was ever lodged. On 11 July 1994 the appellant lodged a statutory declaration in compliance with s. 4.3(10). It was common ground that the period of 40 days ran from 11 July 1994. It also appears to have been common ground that that period expired on Saturday, 20 August 1994 which, by s. 38(2) of the Acts Interpretation Act 1954, became Monday, 22 August 1994. The Council had not decided the application by that date. By resolution of 10 August 1994 the Council purported to extend the decision period to 31 October 1994. Although the resolution referred only to the application for rezoning nothing turns on that. That resolution was notified to the appellant by letter dated 23 August 1994 received by the appellant on 24 August 1994. On 23 August 1994 the -- 4 of 19 -- 3 appellant, apparently in ignorance of the resolution, lodged a notice of appeal in the Planning and Environment Court purporting to be an appeal against the deemed refusal by the Council of the combined application. Section 7.1(2)(b) entitled it to appeal where a local authority had, as the Council here had, failed to decide the application within the period specified. It provides: "Where a Local Authority has failed to decide an application within the period specified by this Act, an appeal may be instituted at any time after the expiration of the period specified for the decision on the application by the Local Authority." Section 4.11(3) provides that, subject to the following subsections, which include subs. (3A) to which I have referred, where a component of a combined application would, if it were made as a separate application, be subject to any provisions of the Act, the combined application is also to be subject to those provisions. Sections 4.4(4A) to 4.4(4C) provide for extension and notification of the extension of the decision period for rezoning applications; and s. 5.1(5A) to 5.1(5C) provide for extension of time and notice of the extension in respect of subdivisional applications. The former and latter sets of provisions are in identical terms. It is sufficient therefore to set out the former. "4.4(4A) [Extension of decision period] The local authority may, by resolution, extend or further extend the period mentioned in subsection (4). 4.4(4B) [Minister's direction] The resolution has effect subject to any written direction given by the Minister to the local authority - (a) shortening the extension or further -- 5 of 19 -- 4 extension; or (b) directing that the extension or further extension ceases to have effect on the giving of the direction. 4.4(4C) [Notification of extension] If the local authority extends or further extends the period mentioned in subsection (4), it must notify the applicant of the extension before the extension starts." The main question before the learned primary judge and before this Court is whether the failure of the Council to notify the appellant of the extension before 23 August 1994 had the consequence that no valid extension was made. The second question, to which I will refer later, is whether the purported extension for a period longer than 40 days was invalid for that reason. The learned primary judge held that an extension was validly made notwithstanding a failure to notify within the period of 40 days; and that the Council could validly extend for longer than 40 days. Although subs. (4C) is in imperative terms, no consequence is expressly provided for non-compliance with it. Moreover its requirement that the Local Authority notify the appellant "of the extension before the extension starts" on one view appears to assume that, whether or not notification is given, the extension starts when, in consequence of the resolution contemplated by subs. (4A), it would otherwise start. This view is consistent with the terms of subs. (4A) which appear to create the extension by the making of the resolution. These considerations support the conclusion which the learned primary judge reached on the main -- 6 of 19 -- 5 question. It is important, in order to determine the legislative intention of a provision such as this, to look not only at the language in which it and its related provisions are cast but also at the consequences, upon the scheme of the Act, of one construction rather than another. There can be little doubt that the legislative intention, though not expressed, is that an effective extension of the decision period postpones an applicant's right to appeal pursuant to s. 7.1(2)(b). One difficulty with the construction which was favoured by the learned primary judge is that, as this case demonstrates, the commencing date for the institution of an appeal pursuant to s. 7.1(2)(b) may be postponed notwithstanding that the applicant has not been notified and, in consequence, may institute its appeal in ignorance of that postponement. Moreover, if that is the correct construction, a local authority may feel no obligation to comply with subs. (4C) if non-compliance with it has no adverse consequences for the local authority. On the construction favoured by the learned primary judge none were suggested. Although the respondent submitted, and the learned primary judge held, that subs. (4C) was directory, it was not contended that this meant that it should be construed so as to require, as a condition of validity of an extension, substantial compliance with it. It was submitted by the respondent that a local authority should not be deprived of the opportunity to perform its -- 7 of 19 -- 6 statutory function of giving due consideration to the matters relevant to an application which may require more than 40 days. That much may be accepted. But on either construction that period may be extended. It is unlikely that the legislature intended a provision such as this, in imperative terms and with the important purpose of informing an applicant of postponement of its right of appeal, to be without sanction for non-compliance with the risk that, because of the absence of any sanction it could be disregarded to the disadvantage of applicants. Subsection (4C) may be construed to as to avoid that consequence. It does no violence to the language of that subsection to construe the phrase "before the extension starts" to mean no more than "before the end of the period mentioned in subs. (4)" and to give the word "must" its literal meaning. The subsection may then more readily be construed as giving effect to a legislative purpose of ensuring that notification is given before the end of the decision period. In my view that is the legislative purpose of subs. (4C). I would therefore allow the appeals, set aside the orders made below and declare that the purported extension by the respondent council of the period in which the respondent was to determine the applications the subject of appeal numbers 252 and 257 of 1994 in the Planning and Environment Court is invalid by reason of the respondent's failure to comply with the provisions of s. 4.4(4C) of the Local Government -- 8 of 19 -- 7 (Planning and Environment) Act 1990. I would also order that the respondent pay the appellant's costs of the appeals to be taxed. It is unnecessary, in view of the conclusion which I have reached, to deal with the second ground of appeal. However as the question may arise with some frequency and was fully argued I propose to express my opinion on it. There is nothing in s. 4.4(4A) which, expressly or by implication, limits the extension which may be granted, to a period of 40 days. The period of 40 days, specified in the preceding subsection, is specified in order to provide a certain period after which an applicant may appeal against a deemed refusal. But there is no justification for construing subs. (4A) as limiting the power of the Local Authority to extend only for a further 40 days. The power conferred by subs. (4B) on the Minister to shorten or terminate an extension is a specific and sufficient safeguard against the only disadvantage of that view; that a Local Authority might grant itself an extension for an unreasonably long time. In my opinion therefore an extension under subs. (4A) may lawfully be granted for a period longer than 40 days. -- 9 of 19 -- 8 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 171 of 1994. Appeal No. 172 of 1994. Brisbane [Edgarange v. Redland Shire Council] Before Davies J.A. Pincus J.A. Derrington J. BETWEEN: EDGARANGE PTY LTD (Appellant) Appellant AND: REDLAND SHIRE COUNCIL (Respondent) Respondent REASONS FOR JUDGMENT - PINCUS J.A. Judgment delivered 15/11/1994 I have read the reasons of Davies JA and agree with them. Section 4.4(4C) of the Local Government (Planning & Environment) Act 1990, set out in those reasons, requires the local authority to notify the applicant of an extension of the period of 40 days within which an application of the relevant sort must be decided "before the extension starts". One way of expressing the question in the case is that it involves, essentially, a construction of the words just quoted. Another and I think truer way is to say that it involves deciding a point of implication: whether the words -- 10 of 19 -- 9 "before the extension starts" imply that the resolved-upon extension does not start unless the Council's resolution has been notified to the applicant before the starting date. The alternative interpretation, or implication, is that the resolved-upon extension starts whether or not it is notified as the Act requires. The subject of implications in language, so extensively dealt with in the law of contract, has received little attention in its application to statutes. Discussion of this sort of question tends to use the language of "inference" rather than "implication": see A.B.C. v. Redmore Pty Ltd (1987) 11 N.S.W.L.R. 621 at 635, or perhaps more commonly, to be framed as a search for legislative intention: see the same case in the High Court, (1989) 166 C.L.R. 454 at 457.9. Here, there is nothing in the statutory context or history to detract from the force of the argument that the legislature could hardly have intended the requirement in question to be one which may be ignored without legal consequences or at least, without any sanction which is likely to have practical effect. The sensible implication to be made is that for which the appellant contends. The effect of non-compliance with the requirement of notice is not that the resolution to extend time, valid at inception, becomes invalid retrospectively; it is simply that it fails to take effect. That is I think sufficiently expressed by the first declaration sought in each -- 11 of 19 -- 10 application; in Appeal No. 171 of 1994 there should be a declaration that the purported extension of the period in which the respondent was to determine the application the subject of Appeal No. 252 of 1994 in the Planning & Environment Court, which purported extension is referred to in the letter of the respondent to the appellant dated 23 August 1994, is invalid by reason of the respondent's failure to comply with the provisions of s. 4.4(4C) of the Local Government (Planning & Environment) Act 1990. In Appeal No. 172 of 1994 there should be a declaration in similar terms. It will also be necessary to order that the respondent pay the appellant's costs of these appeals, to be taxed. -- 12 of 19 -- 11 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 171 of 1994 Appeal No. 172 of 1994 Brisbane [Edgarange v. Redland Shire Council] Before Davies J.A. Pincus J.A. Derrington J. BETWEEN: EDGARANGE PTY LTD (Appellant) Appellant AND: REDLAND SHIRE COUNCIL (Respondent)Respondent REASONS FOR JUDGMENT - DERRINGTON J. Judgment delivered 15.11.1994 The imperative word "must" in s.4.4(4C) undoubtedly requires the giving of the notice referred to, but its imperative nature does not characterise it as mandatory or directory, for it may take the same form in either case. The real point of the enquiry however is whether disobedience to it in some way invalidates the power of extension of time which the local authority is entitled to exercise under s.4.4(4A). In this respect the use of the imperative word is not decisive: Hunter Resources Ltd v Melville (1988) 77 ALR 8; Accident Compensation Commission v Murphy (1988) V.R. 444 at 447. This does not mean that that feature does not have some weight; and there is some additional force to it because there is no sanction, other than the general sanction in -- 13 of 19 -- 12 s.8.6(1), which is not apt, for disobedience. This latter factor is not as strong as it might otherwise be because a local authority is not entirely free to disregard this provision without adverse consequences. Under subclause (4B) the Minister may shorten or even terminate the extension, and one suitable reason for such action would be the council's disobedience of the statute by failing to give notice. However this is clumsy and unsatisfactory in that it would require the agitation of the Minister's action in respect of a default that might not be known to either the Minister or an applicant. There are some other factors in the language and framework of the Act that are relevant:- 1. By subs.(4A) the act of extension by resolution of the local authority is said to be complete and operative, though the time referred to in the extension would start to run only at the end of the primary period established by the statute. This is supported by the terminology of subss.(4B) and (4C). 2. The notice required by subs.(4C) is therefore contemplated as coming after the completed act of extension, and it is expressed as such. This means that if this provision has an effect on validity, compliance is not a precondition to validity but rather that non-compliance will invalidate an extension that has been valid to that time, though it will not have begun to run. 3. Subsection (4C) contains no express provision for invalidation of the extension in the event of -- 14 of 19 -- 13 disobedience, nor does subs.(4A) carry any express condition or qualification requiring compliance with subs.(4C) for the validity of the exercise of the power. It would have been easy to have imposed such a restriction. 4. The requirement in subs.(4C) of notification of the extension "before the extension starts" does not imply any condition, and the quoted phrase is at best equivocal. It would take that form if it were intended to use the starting time of the period of the extension as the definition of the time before which the notice must be given. If it were intended that the phrase should connote a conditional feature, then that could easily have been expressed. 5. Although subss.(4A) and (4C) should be read together, particularly as part of the same section, they are separated by subs.(4B), which empowers the Minister to shorten or cease the extension by direction; and that subsection commences: "The resolution has effect subject to any written redirection given by the Minister to the local authority...." This confirms that the extension is operative immediately upon resolution, and it is clear that it may be terminated by the Minister even before the notice required by subs.(4C) is required to be given. The interposition of a provision relating to something else tends to reduce the claim that the later provision qualifies the validity of the earlier one; but if the later is regarded as a subsequent validation for -- 15 of 19 -- 14 disobedience of the exercise of the power that has to that time been valid, then there is nothing in this point. Indeed, the interposition of a provision relating to another modification of the original power, a modification which could precede the invalidating factor in time, is logical. There is nothing else in the framework or language of the statute that would help to resolve the difficulty, but it is necessary to consider also the seriousness of the implications of the provision as a guide to the statutory intention. It is useful to consider the respective adverse consequences following upon the alternative conclusions. If subs.(4C) affects the validity of the extension, then a local authority which fails to comply, whether by innocent mistake or otherwise, will irretrievably lose the benefit of an extension which it has formally decided was needed. However because in the absence of its approval within the prescribed time the application is deemed to be dismissed rather than approved, the effect on the local authority of the loss of an extension is not particularly serious. It still has the opportunity of supporting or opposing any appeal which the applicant might bring, and while this might not be as satisfactory as retaining the original opportunity of investigating and deciding upon the matter itself the difference would usually be marginal if any. At least it would certainly have the same opportunity for time to consider the matter as if an extension had been invoked. -- 16 of 19 -- 15 If subs.(4C) does not affect the validity of the extension, then the effect on the applicant who is left without notice is mixed. If there were no enquiry or search of the local authority's records, though prudence would suggest that there should be, an applicant may commence an appeal in the erroneous belief of a deemed refusal of the application. Such an imprudent action might still be compensated for by an order for costs in these circumstances and it is not easy to find any serious prejudice in this respect. Nor is it correct to say that such an applicant would have been vested with the right of appeal in the absence of notice but then divested of it on receipt of late notice. Any valid notice is required to be given before the start of the extension. If disobedience of the provision does not invalidate the extension, then an applicant would not be vested with any right of appeal on the basis of a deemed refusal. Equally if the default produces invalidity, it will not be saved by a late notice and so there would be no divestment. Because of the nomination of a specific time limit, there is no room here for any digression into the area of substantial compliance, the invalidation having taken effect when the non-compliance existed at the appointed time. Consequently the discussion should not be diverted by any argument by the applicant of the undesirability of its being divested of a vested right. Indeed that is broadly the effect on the local authority that would follow the success of the applicant's own case. The most substantial issue of prejudice to an applicant -- 17 of 19 -- 16 concerns the possible commercial disadvantage in planning and finance which might be suffered in the absence of notice. The purpose of the Act's requirement of notice is not merely the encouragement of courtesy but to provide proper knowledge to and an opportunity to take action about their affairs by applicants who may be adversely affected by an extension. This possibility of serious consequences of an extension which might be avoided by suitable notice is both real and substantial, and the perception of this is no doubt the reason behind the prescription of a time for giving it. This accords with the tendency in cases concerning the construction of such a provision to associate such a procedural requirement as going to validity, particularly where a limitation of time is expressed; and even more so when the provision regulates the exercise of a power or right: Hatton v. Beaumont (1978) 52 A.L.J.R. 589 at 591. For these reasons the nature of the provision and the respective consequences of the alternative constructions tend to indicate that the continued validity of the extension brought into existence by a resolution should depend on compliance with the requirement of notice. This is the decisive factor in the equation. The competing factors associated with the framework and language of the Act tend to cancel each other out, while the preponderance of the argument that the substantial nature of the provision supports its effect on the validity of the power is sufficient to justify a conclusion in that direction. This means that I agree with the orders proposed by -- 18 of 19 -- 17 Davies JA. With respect, I would also agree with his views on the second ground of appeal which it has become unnecessary to answer. -- 19 of 19 --