CSR Ltd v Pine Rivers Shire Council [1993] QCA 549 [1995] 1 Qd R 234; (1996) QPELR 325; 82 LGERA 110

IN THE COURT OF APPEAL [1993] QCA 549 SUPREME COURT OF QUEENSLAND Appeal No. 137 of 1993 Brisbane Before The Chief Justice The President Mr Justice McPherson [C.S.R. Limited v. Pine Rivers Shire Council] BETWEEN: C.S.R. LIMITED (Applicant) Respondent - and - PINE RIVERS SHIRE COUNCIL (Respondent) Appellant - and - ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Second Respondent) Appeal No. 148 of 1993 BETWEEN: C.S.R. LIMITED (Applicant) First Respondent - and - PINE RIVERS SHIRE COUNCIL (Respondent) Second Respondent - and - ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Second Respondent) Appellant REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND THE PRESIDENT Judgment delivered 16/12/93 1. In June 1990, one of the appellants, Pine Rivers Shire Council, applied to the Minister for Housing and Local Government pursuant to section 33(5)(a)(iii) of the Local Government Act 1936 (as amended) for an amendment to the -- 1 of 23 -- 2 planning scheme for the Shire. The amendment was not made for a little over two years. 2. The Local Government (Planning & Environment) Act 1990 commenced on 15 April 1991. Section 8.8 of that Act and its First Schedule repealed section 33 of the Local Government Act. Section 8.10 of the Local Government (Planning & Environment) Act contains "Savings and Transitional" provisions. By sub-section 8.10(3), each town planning scheme approved by the Governor in Council prior to the commencement of the Local Government (Planning & Environment) Act and in force immediately prior to that Act, to the extent to which it conforms with that Act, continues "to have force and effect as if it were a planning scheme that had force and effect" under that Act. Further, subsection 8.10(10) provides: "(a) Where, prior to the commencement of this Act, a proposal ... to obtain an approval to amend a town planning scheme was instituted (but was not approved by the Governor in Council prior to the commencement of this Act), the Minister is to recommend to the Governor in Council modifications to the proposal which will ensure that the proposal conforms in all respects with this Act and the proposal is to be dealt with as if this Act had not commenced ... ." Thus, subject to any necessary modifications by the Minister, the Council's application for amendment of the planning scheme was required to be dealt with as if the Local Government (Planning & Environment) Act had not commenced - in which event section 33 of the Local Government Act would not have been repealed. 3. (a) Subsection 33(5)(l) of the Local Government Act provided: "(l) Where the Governor in Council approves of any amendment of a town planning scheme applied for by a Local Authority, he shall notify such approval by Order in Council. Such Order in Council shall describe so as to identify every amendment of the scheme thereby notified. -- 2 of 23 -- 3 Upon the publication of such Order in Council the scheme as amended thereby for the time being shall become and be the town planning scheme ... and shall have the force of law and be binding upon and obeyed by the Local Authority and all persons whomsoever accordingly." (b) Further, subsection 4(4)(vi) of the Local Government Act, which has not been repealed, provides: "(vi) All Proclamations and Orders in Council made or purporting to be made under this Act when published in the Gazette shall have the same force and effect as if they were enacted in this Act and shall be judicially noticed, and shall not be questioned in any proceedings whatsoever, and such publication shall be conclusive evidence of the power and authority to make the Proclamation or Order in Council so published and of all matters contained therein." 4. (a) Shortly after 15 April 1991, the date when the Local Government (Planning and Environment) Act commenced, by an application dated 11 April 1991, the respondent, C.S.R. Limited, applied to the Council under the Local Government (Planning & Environment) Act for approval to the rezoning of certain land in the Shire to "extractive industry" for the purpose of establishing a rock quarry on the land. The Council has not yet dealt with that application. (b) Notwithstanding subsection 4.4(4) of the Local Government (Planning and Environment) Act 1990, it seems that the Council does not intend to deal with C.S.R.'s application "prior to 13 July 1996", the date nominated in the amendment to the planning scheme, which is set out below. (c) In these circumstances, C.S.R. could have appealed to the Planning and Environment Court: Local Government -- 3 of 23 -- 4 (Planning and Environment) Act, subsection 4.4(10). There was disagreement between the appellants concerning whether, had it done so, it could have raised its contention that the amendment is invalid as a ground of appeal. The Attorney-General conceded that the Planning and Environment Court would have had jurisdiction to decide that issue in an appeal but the Council declined to make a similar concession. It is convenient to postpone further consideration of subsection 4(4)(vi) of the Local Government Act for the time being, simply noting at this point the possibility that it might exclude the validity of the amendment to the planning scheme from challenge in any court. 5. On 12 June 1992, an Order in Council amending the planning scheme in accordance with the Council's application was published in the Queensland Government Gazette. The schedule to the Order in Council was as follows: " The Schedule The town planning scheme for the Shire of Pine Rivers finally approved by Order in Council on the 12th May, 1988 and published in the Gazette on the 14th May, 1988 is hereby amended by inserting immediately following Part 9 - Miscellaneous Provisions the following new Part 10:- 'PART 10 ROCK QUARRIES Division 1 - Rock Quarries Prohibited 90. Notwithstanding anything to the contrary contained in the planning scheme no application whatsoever made after 19th March, 1990 pursuant to the planning scheme or pursuant to the Local Government Act 1936 and the Local Government (Planning and Environment) Act 1990 shall be approved prior to 13th July, 1996 where the approval of any such application would directly or indirectly allow or be likely to allow a rock quarry to be established on any land in the area. For the purpose of this division the term "rock quarry" means an extractive industry involving the extraction of -- 4 of 23 -- 5 rock, stone or similar substances from a non-alluvial source on land.'" 6. (a) At the time when the Order in Council notifying the amendment to the planning scheme was published in the Gazette, subsection 2.20(9) of the Local Government (Planning and Environment) Act 1990 provided: "(9) (a) Where the Governor in Council pursuant to subsection (6) approves an amendment of a planning scheme, an Order in Council notifying the approval is to be published in the Gazette. (b) The Order in Council is to identify each amendment approved pursuant to subsection (6). (c) Upon publication of the Order in Council the planning scheme as amended becomes and is the planning scheme for the area and has the force of law .... " Since the amendment to the planning scheme was not approved pursuant to subsection 2.20(6), that provision was not applicable. (b) Subsection 2.20(9) of the Local Government (Planning and Environment) Act was omitted by the Local Government (Planning and Environment) Amendment Act 1992, and the following subsections (9) to (13) were inserted in section 2.20: "(9) The approval of an amendment of a planning scheme is to be given by order in council. (10) The order in council is to identify each amendment that is approved. (11) The planning scheme as amended becomes the planning scheme for the area concerned and has the force of law, on notification in the Gazette of the making of the order in council. ... (13) Orders in council under this section are declared to be - (a) subordinate legislation; and (b) exempt instruments for the purposes of the Legislative Standards Act 1992'." 7. (a) Subsection 2.24(3) of the Local Government (Planning & Environment) Act provides: "The Court has jurisdiction to hear and -- 5 of 23 -- 6 determine proceedings for a declaration in respect of - (a) any question of construction arising under a planning scheme; (b) any act, matter or thing to be undertaken in respect of the planning scheme or the use of land; or (c) any offence defined in section 2.23(1)." The Court referred to is the Planning & Environment Court, for which provision is made by section 7.3 of the Act. (b) Subsections (1), (2) and (3) of section 7.4 of the Local Government (Planning & Environment) Act, which is also concerned with the jurisdiction of the Planning & Environment Court, provide: "(1) The Court is to hear and determine all matters which by this Act or any other Act are required to be heard and determined by the Court, including every appeal and application for review which under this Act may be made to the Court. (2) Subject to subsection (3), the jurisdiction of the Court under this Act is exclusive and every determination of the Court is final and conclusive and is not to be impeached for any informality or way of form or be appealed against, reviewed, quashed or in any way called in question in any court. (3) Where a Local Authority or any person feels aggrieved by a determination of the Court on the ground of error or mistake in law on the part of the Court or that the Court had no jurisdiction to make the determination or exceeded its jurisdiction in making the determination, the Local Authority or the person may, in accordance with the Rules of Court, appeal from the determination to the Court of Appeal." 8. (a) By application No. 20 of 1993, dated 20 May 1993, C.S.R. brought an application in the Planning & Environment Court for a declaration that the amendment to the planning scheme notified by the Order in Council published in the Gazette on 11 June 1992 "is unlawful -- 6 of 23 -- 7 and/or invalid". (b) The Attorney-General, who has also appealed to this court, was subsequently added as a respondent to C.S.R.'s application. 9. (a) The Attorney-General then applied to the Planning & Environment Court for a decision on the following question as a preliminary point of law: "Does the Planning & Environment Court have jurisdiction to make a declaration under s. 2.24 of the Local Government (Planning & Environment) Act with respect to the validity of an amendment to a planning scheme after the amendment has been approved by the Governor-in-Council and an Order- in-Council has been published in the Gazette notifying the amendment?" (b) It seems that the Attorney-General's application was treated as an application for a determination that the Planning & Environment Court does not have such jurisdiction and, on that footing, it was "refused", because the Judge of the Planning & Environment Court before whom the application came was of opinion that that Court does have jurisdiction to make the declaration sought by C.S.R.. 10. The Council and the Attorney-General have appealed to this Court seeking (i) to have the Planning & Environment Court's order refusing the Attorney-General's application set aside, and (ii) that this Court make the following declaration: "A declaration that the Planning and Environment Court does not have jurisdiction to make a declaration under s. 2.24 of the Local Government (Planning & Environment) Act, 1990 with respect to the validity of an amendment to a Town Planning Scheme after such amendment has been approved by the Governor-in-Council and an Order-in-Council has been published in the Government Gazette notifying such amendment." 11. The substantive issue between the parties, namely whether the amendment to the planning scheme is valid, is not before this Court. However, it seems that the -- 7 of 23 -- 8 respondent contends (or will contend if the Planning & Environment Court has jurisdiction to decide its application) that the amendment is invalid because it was not authorized by, and is inconsistent with, the Local Government Act and/or the Local Government (Planning & Environment) Act. No doubt this contention, if it is able to be advanced, will encounter subsections 33(5)(l) and 4(4)(vi) of the Local Government Act and/or subsections 2.20(11) and 13(a) of the Local Government (Planning & Environment) Act. See Lewiac v. Gold Coast City Council (C.A. No. 29 of 1993; unreported judgment delivered 19 July 1993). These issues, and other possible grounds of invalidity, or arguments supporting the validity of the amendment, were not examined in this Court. 12. Presently, the dispute between the parties is concerned only with jurisdiction. The declaration sought by C.S.R. in the Planning and Environment Court raises two questions, namely: (i) Does any court have jurisdiction or power to make the declaration sought by C.S.R.? (ii) If 'yes' to (i), is that court the Supreme Court or the Planning & Environment Court? 13. (a) The declaration sought by the Attorney-General and supported by the Council also raises a question of the power of the Planning and Environment Court. (b) There is no statute which gives the Planning and Environment Court the power to grant such a declaration and, since that Court is an inferior court of record continued in existence and constituted by the Local Government (Planning and Environment) Act, its jurisdiction is limited by statute. (c) However, in the present case, the difficulty with the Attorney-General's application is largely procedural, since the Planning and Environment Court has power to dismiss a proceeding brought before it -- 8 of 23 -- 9 which is outside its jurisdiction, and the contrary was not argued. In John Fairfax & Sons Ltd. v. Police Tribunal of N.S.W. (1986) 5 NSWLR 465, a question arose as to the power of the Tribunal to prohibit the publication of evidence taken before it. At p.476, McHugh JA. (as his Honour then was), with the agreement of Glass JA., said: "The jurisdiction of the Tribunal: The Act contains no specific power enabling the Tribunal to prohibit the publication of evidence taken before it. ... Since the Tribunal is an inferior court of record created by statute, it can have no powers, jurisdictions or authorities other than those authorised by the Act: Irving v Askew (1870) LR 5 QB 208; R v Hackett; Ex parte Cline (1882) 8 VLR (L) 129; Levoune v Bacoulis (1935) AR (NSW) 126. The Tribunal has none of the powers inherent in the courts of the common law - the Common Pleas, the Kings Bench and the Exchequer Chamber. Nonetheless as Lord Morris of Borth-y-Gest pointed out in Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301 there 'can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction". His Lordship said that he would regard such powers as inherent powers: see also R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7; Taylor v Attorney-General [1975] 2 NZLR 675 at 680, 682, 689; Taylor v Taylor (1979) 143 CLR 1 at 5-6. The source of this inherent jurisdiction is the implied authority conferred on the judiciary to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in a particular case and as a continuing process, according to law and in an effective manner: Jacob, "The Inherent Jurisdiction of the Court", Current Legal Problems (1970) 23 at 27-28. Hence the failure of the legislature in setting up the Tribunal to confer a specific power to prohibit the publication of evidence does not necessarily invalidate the order which the Tribunal made in the present case." This statement, either in full or in part, has been embraced in recent authority: R. v. Grassby (1989) 15 NSWLR -- 9 of 23 -- 10 109, 119-120; Palmer v. Clarke (1989) 19 NSWLR 158, 167; National Parks and Wildlife Service v. Stables Perisher Pty. Ltd. (1990) 20 NSWLR 573, 581; United Telecasters Sydney Ltd. v. Hardy (1991) 23 NSWLR 323, 333; Linprint Pty. Ltd. v. Hexham Textiles Pty. Ltd. (1991) 23 NSWLR 508, 525; Registrar of the Court of Appeal v. Maniam [No.1] (1991) 25 NSWLR 459, 463; Balmain Association Inc. v. Planning Administrator for the Leichhardt Council (1991) 25 NSWLR 615, 638; John Fairfax Group Pty. Ltd. v. Local Court NSW and Anor (1991) 26 NSWLR 131, 147, 159, 160. The only blemish upon the acceptability of this statement, is, as was pointed out by Dawson J. in Grassby v. The Queen (1989) 168 CLR 1, 16-17, and as adopted by Kirby P. in the John Fairfax case (supra), 147, its use of the term "inherent". The acknowledgment of the distinction between inherent jurisdiction and jurisdiction by implication is increasingly manifested: see, for example, Palmer v. Clarke (supra) 166f; the National Parks case (supra) 581, 585; Parsons v. Martin (1984) 58 ALR 395, 401. 14. The existence of that power in the Planning and Environment court does not mean that the Supreme Court does not have original jurisdiction to determine whether or not a matter is within the jurisdiction of the Planning and Environment Court. The only jurisdiction of the Planning and Environment Court which is made exclusive by section 7.4 of the Local Government (Planning and Environment) Act is the jurisdiction conferred by that Act: cf Stack v. Gold Coast Securities (No.9) Pty. Ltd. (1983) 154 CLR 261. 15. (a) The first question, set out above in paragraph 12(i), is whether any court has jurisdiction or power to make the declaration sought by C.S.R.. The argument that there is no such jurisdiction or power is based upon those provisions of the Local Government Act (subsections 4(4)(vi) and 33(5)(l)) and/or the Local Government (Planning and Environment) Act (subsections -- 10 of 23 -- 11 2.20(ii) and (13)) which seek to protect the validity of an Order in Council from challenge. (b) It is open to question whether this argument raises a jurisdictional issue, but it is unnecessary to pursue this in this matter. Neither the provisions of the Local Government Act nor those of the Local Government (Planning and Environment) Act place the validity of the Order in Council notifying the amendment to the planning scheme totally beyond challenge. This is consistent with the principle that the right to apply for a declaration of rights is not to be excluded except by clear words: Forster v. Jododex Australia (1972) 127 CLR 421, 435-436. (c) There are, perhaps, questions as to whether (i) the Order in Council was made or purportedly made under sub-section 33(5)(a)(iii) of the Local Government Act or subsection 8.10(10) of the Local Government (Planning and Environment) Act, (ii) whether, if it was made or purportedly made under subsection 33(5)(a)(iii) of the Local Government Act, the more limited special provision in subsection 33(5)(l) of that Act operates to the exclusion of the general provision in subsection 4(4)(vi), and (iii) how the protective provisions of the legislation are to be reconciled with subsection 2.24(3)(b) of the Local Government (Planning and Environment) Act, if the latter provision were wide enough in its terms to involve a grant of jurisdiction to make a declaration with respect to a matter which, by the former, is not to be questioned in any proceeding. (d) It is convenient to pass over these issues and to assume in favour of the appellants that the Order in Council notifying the amendment has the greatest possible protection, which is that provided for by subsection 4(4)(vi) of the Local Government Act. Even so, the validity of the Order in Council is not beyond challenge on the basis of inconsistency with the -- 11 of 23 -- 12 provisions of the Act under which it was made: cf Racecourse Co-operative Sugar Association Ltd. v. Attorney-General (Qld.) (1979) 142 CLR 460 at pp.481- 482 per Gibbs J., with whom Stephen, Mason and Wilson JJ. and, subject to qualification, Barwick CJ, agreed. See also Owen v. Turner (1990) 96 ALR 119, 142. (d) While, as the Attorney-General submitted, this introduces an element of uncertainty with respect to published planning schemes which would be absent if such schemes were immune from judicial scrutiny, and this degree of uncertainty has some practical disadvantages, that is not especially unusual in relation to subordinate legislation and, not uncommonly, uncertainties arise even with respect to Acts of Parliament, either as to their validity or meaning. Nor is this uncertainty contrary to the objectives of the Local Government (Planning and Environment) Act as set out in section 1.3: see subsection 14A(1) of the Acts Interpretation Act 1954 as amended. On the contrary, the purpose of the Local Government (Planning and Environment) Act is promoted and enhanced by confining valid Orders in Council to those which are consistent with that Act, and providing interested persons with convenient means for the determination of questions of validity. (e) Lewiac, referred to above, does not suggest to the contrary. There, the challenge was based on non- compliance with proclaimed requirements, not substantive conflict between the legislation and the Order in Council. 16. It remains to be considered whether the Planning and Environment Court has jurisdiction to decide a challenge to the validity of the Order in Council notifying the amendment of the planning scheme, albeit on limited grounds. If it has, its material jurisdiction is exclusive: subsection -- 12 of 23 -- 13 7.4(2) of the Local Government (Planning and Environment) Act. The point for further consideration involves the construction of subsection 2.24(3)(b) of that Act; subsection 2.24(3)(a) was not relied on by C.S.R.. 17. The arguments that subsection 2.24(3)(b) of the Local Government (Planning and Environment) Act does not give jurisdiction to the Planning and Environment Court, variously advanced by the Council and the Attorney-General, may be summarised as follows: (i) The words "to be undertaken" in that provision have a temporal connotation and speak only of matters which remain to be done, whereas there is nothing remaining to be undertaken in respect of a planning scheme, or an amendment to a planning scheme, once the material Order in Council is published in the Gazette. This approach would be consistent with Makucha v. Albert Shire Council (1993) 1 Qd.R. 493, although on the facts of that case it was not necessary for the point to be decided and the Court did not set out to do so. (ii) The provision is concerned only with a "planning scheme" which is valid; an application with respect to an invalid provision of a planning scheme is not with respect to a "planning scheme". (iii) The construction of the provision sought by C.S.R. leaves little or no work for subsection 2.24(3)(a); "any question of construction arising under a planning scheme" would, on C.S.R.'s interpretation of subsection 2.24(3)(b), be an "act, matter or thing to be undertaken in respect of the planning scheme". (iv) The acts, matters or things envisaged in subsection 2.24(3)(b) are the "Provisions for the regulation, implementation and administration of a planning scheme" referred to in section 2.2 of the Local Government (Planning and Environment) Act. -- 13 of 23 -- 14 18. (a) C.S.R. submitted that the phrase "to be undertaken" was not confined to future acts, matters or things, but extended to any act, matter or thing, past, present or future, for which provision was made by a planning scheme; for example, because required or permitted by a planning scheme. (b) Attention was also drawn to the alternative provided by subsection 2.24(3)(b), that is, that the subsection can be satisfied by an "act, matter or thing to be undertaken in respect of ... the use of land". 19. It might well be possible to formulate a declaration which would meet C.S.R.'s needs and fit within subsection 2.24(3)(b); for example, a declaration that a decision made on C.S.R.'s rezoning application in accordance with or pursuant to Part 10 of the planning scheme (or perhaps a refusal to make a decision on C.S.R.'s rezoning application by reference to Part 10 of the planning scheme) would be invalid. Such a declaration might be both "in respect of - ... [a decision] to be [made] in respect of the planning scheme "... and "in respect of - ... [a decision] to be [made] in respect of ... the use of land." However, that is not the basis upon which this proceeding has been conducted. It is necessary to focus on the precise declaration sought, which is that Part 10 of the planning scheme is invalid. 20. It is also necessary to recognize that subsection 2.24(3)(b) requires not one but two material connexions. The declaration permitted is not one "in respect of" a "planning scheme" or "the use of land", but a declaration: (i) "in respect of" an act, matter of thing which is to be undertaken; and (ii) "in respect of" either a planning scheme or the use of land. It is this distinction which limits the extent of subsection 2.24(3)(b) and leaves scope for the operation of subsection 2.24(3)(a). -- 14 of 23 -- 15 21. It is necessary to identify the "act, matter or thing" which the declaration is sought "in respect of", which cannot itself be "the planning scheme" or "the use of land". That, as it seems to me, is the deficiency in C.S.R.'s claim. It is in respect of "the planning scheme" and perhaps also "the use of land", but it is not in respect of an act, matter or thing which is in respect of the planning scheme or the use of land. 22. It might be argued that a declaration in respect of a planning scheme in respect of the use of land is a declaration in respect of a "act, matter or thing" in respect of the use of land, and literally that seems to be so. However, it is reasonably clear that the "act, matter or thing" referred to is an act, matter or thing different from the planning scheme (or the use of land). 23. The conclusion at which I have arrived, without strong conviction, is that the declaration sought is outside the limits of the Planning and Environment Court's jurisdiction. Conformably with this, it seems to me a matter within the jurisdiction of the Supreme Court, so that C.S.R. is not deprived of its remedy. 24. The appeals should be allowed, the judgment below set aside, and a declaration made in the terms sought by the appellants. C.S.R. must pay the taxed costs of the appeals and the proceedings in the Planning and Environment Court. -- 15 of 23 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 137 of 1993 Brisbane [C.S.R. Limited v. Pine Rivers Shire Council] BETWEEN: C.S.R. LIMITED (Applicant) Respondent - and - PINE RIVERS SHIRE COUNCIL (Respondent) Appellant - and - ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Second Respondent) Appeal No. 148 of 1993 BETWEEN: C.S.R. LIMITED (Applicant) First Respondent - and - PINE RIVERS SHIRE COUNCIL (Respondent) Second Respondent - and - ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Second Respondent) Appellant The Chief Justice The President Mr Justice McPherson Judgment delivered 16/12/93 Joint reasons for judgment by the Chief Justice and the President. McPherson JA dissenting. 1.APPEALS ALLOWED. 2. SET ASIDE THE JUDGMENT BELOW. 3. DECLARE THAT THE PLANNING AND ENVIRONMENT COURT DOES NOT HAVE JURISDICTION TO MAKE A DECLARATION UNDER S. 2.24 OF THE LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990 WITH RESPECT TO THE VALIDITY OF AN AMENDMENT TO A TOWN PLANNING SCHEME AFTER SUCH AMENDMENT HAS BEEN APPROVED BY THE GOVERNOR-IN-COUNCIL AND AN ORDER-IN- COUNCIL HAS BEEN PUBLISHED IN THE GOVERNMENT GAZETTE NOTIFYING SUCH AMENDMENT. 4. CSR MUST PAY THE TAXED COSTS OF THE APPEALS AND THE -- 16 of 23 -- 17 PROCEEDINGS IN THE PLANNING AND ENVIRONMENT COURT. CATCHWORDS: LOCAL GOVERNMENT - Town Planning - whether Planning and Environment Court has jurisdiction to make a declaration under s. 2.24 of the Local Government (Planning and Environment) Act 1990 with respect to the validity of an amendment to a town planning scheme after such amendment has been approved by the Governor-in-Council and an Order-in- Council has been published in the Government Gazette notifying such amendment. Counsel: P.J. Lyons QC, with him W Eveson, for C.S.R. Ltd C. Hughes for the Council J. Griffin QC, with him G.C. Martin, for the Attorney-General (Qld) Solicitors: Connor O'Meara & McConaghy for C.S.R. Ltd R.D. Forbes for the Council Crown Solicitor for the Attorney-General (Qld) Hearing Date: 26 October 1993 -- 17 of 23 -- 18 IN THE SUPREME COURT OF QUEENSLAND Appeal No. 137 of 1993 Brisbane Before The Chief Justice The President Mr Justice McPherson [CSR v. Pine Rivers Shire Council] BETWEEN C.S.R. LIMITED (Applicant) Respondent - and - PINE RIVERS SHIRE COUNCIL (Respondent) Appellant ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Second Respondent) Appeal No. 148 of 1993 BETWEEN C.S.R. LIMITED (Applicant) First Respondent - and - PINE RIVERS SHIRE COUNCIL (Respondent) Second Respondent ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Second Respondent) Appellant REASONS FOR JUDGMENT - McPHERSON J.A. Delivered the 16th day of December 1993 The Queensland Government Gazette of 12 June 1992 contained notification of the approval of the Governor in Council of an amendment to the town planning scheme of the Council of the Shire of Pine Rivers. The effect of the amendment was to introduce into the scheme a new Part 10 as follows: "PART 10 -- 18 of 23 -- 19 ROCK QUARRIES Division 1 - Rock Quarries Prohibited 10. Notwithstanding anything to the contrary contained in the planning scheme no application whatsoever made after the 19th March 1990 pursuant to the planning scheme or pursuant to the Local Government Act 1936 and the Local Government (Planning and Environment) Act 1990 shall be approved prior to 13 July 1996 where the approval of any such application would directly or indirectly allow or be likely to allow a rock quarry to be established on any land in the area." By an application dated 11 April 1991 CSR Limited, trading as the Readymix Group (here referred to as CSR), applied to the Council for a rezoning of certain land in the local authority area. The zone in which it was requested that the subject land be included was designated as "extractive industry". There is no doubt that the purpose of CSR in making the application was to establish a rock quarry on the subject land. After 12 months or more had passed the Council wrote back to CSR referring to the recent amendment to the town planning scheme, enclosing a copy of the Order in Council from the Gazette of 12 June 1992, and advising that in view of its provisions the application by CSR "could not be supported by Council". Since then, the Council's Shire Planner has informed CSR that the Council would "for an indefinite period of time" not be considering the application for rezoning. The result is that, although not approved, the application has never been formally rejected or refused, but remains pending and undetermined. CSR has received legal advice to the effect that the amendment to the town planning scheme embodying Part 10 is inconsistent with the Act or Acts under which the amendment purports to have been made. Accordingly it instituted proceedings by application in the Planning and Environment -- 19 of 23 -- 20 Court for a declaration that the amendment to the scheme is invalid. The Council was originally named as the only respondent to the application. However, before the application was heard, the Attorney-General obtained leave to join in the application as a respondent party. The proceedings have been amended to reflect that development. On 15 July 1993 judgment was delivered in the Planning and Environment Court ruling on a preliminary point of law that had been raised by the Attorney-General. Briefly stated, it was that that Court had no jurisdiction under s.2.24 of the Local Government (Planning and Environmental) Act 1990 ("the Act") to make a declaration with respect to the validity of an amendment to a town planning scheme after approval by the Governor in Council and notification of the Order in Council in the Gazette. The ruling was that the Planing and Environment Court did have the requisite jurisdiction. The formal order made was that the application (which was to have the question decided in the manner contended for by the Council and the Attorney- General) be refused. Appeals are now brought to this Court by those two parties. The primary submission in support of the appeal is that under s.2.24(3) of the Act the Planning and Environmental Court ("the P & E Court") lacks the power to make a declaration in the terms or in the circumstances in which it was sought by CSR. Section 2.24(3) is as follows: "(3) The Court has jurisdiction to hear and determine proceedings for a declaration in respect of - (a) any question of construction arising under a planning scheme; (b) any act, matter or thing to be undertaken in respect of the planning scheme or the use of land; -- 20 of 23 -- 21 (c) any offence defined in section 2.23(1)." Because the P & E Court is a creature of statute, its powers are limited by the legislation creating the Court and defining its functions. On behalf of CSR, Mr Lyons Q.C. submitted that s.2.24(3)(b) provided authority to enable the P & E Court to make the declaration sought by his client. This, it will be recalled, was that the amendment to the town planing scheme that introduced Part 10 was invalid. For the Council and the Attorney-General it was submitted that the declaration in question was outside s.2.24(3)(b) because the alleged invalidity was not an act, matter or thing "to be undertaken" in respect of the scheme or the use of land. The words quoted, it was argued, bore the meaning or implication that something remained to be done in the future, whereas here the amendment has been duly approved, adopted and published, and so was something that was done and complete. There may well be more ways than one of formulating or stating the matter so as to show that it falls within the terms of s.2.24(3)(b). One is that if Part 10 is a valid provision of the town planning scheme, its provisions operate to impose a prohibition that will have to be given effect by the Council when it comes to determine the CSR rezoning application of 11 April 1991. Effect can be given to it only by refusing the application, which seeks to obtain a rezoning which the town planing scheme precludes the Council from approving. Hence it can fairly be said that refusing the application for rezoning because of the provisions of Part 10 is an act or a thing that is "to be undertaken in respect of" the planning scheme. It follows that an application to have it declared that Part 10 is -- 21 of 23 -- 22 invalid is, in terms of s.2.24(3), a proceeding for a declaration "in respect of" an act or thing to be undertaken in respect of a planning scheme that by virtue of s.2.24(3)(b) the Court is given jurisdiction to hear and determine. The judge below was thus correct in holding that the Court had power to make the declaration sought by CSR. The appellants nevertheless submitted that the opposite conclusion was dictated by s.4(4)(vi) of the Local Government Act 1936, which is as follows: "(vi) All Proclamations and Orders in Council made or purporting to be made under this Act when published in the Gazette shall have the same force and effect as if they were enacted in this Act and shall be judicially noticed, and shall not be questioned in any proceedings whatsoever, and such publication shall be conclusive evidence of the power and authority to make the Proclamation or Order in Council so published and of all matters contained therein." The scope and effect of s.4(4)(vi) was recently considered and given effect by this Court in Lewiac v. Gold Coast City Council (App. No. 24/1993; unrep. 19.7.1993). Mr Lyons suggests that the grounds of invalidity that CSR proposes to rely on in the present case differ in several respects from those considered in Lewiac, and that s.4(4)(vi) does not prevent the amending Order in Council here from being questioned or its validity determined in the proceedings in this case. In any event, he submits, the effect of s.4(4)(vi) is not to deprive the P & E Court of the jurisdiction conferred by s.2.24(3) to make a declaration on -- 22 of 23 -- 23 the matter. It may be that in the end CSR's application will fail because of the operation of s.4(4)(vi); but, if it does, it seems to us that it will not be because that provision of the Local Government Act 1936, deprives the P & E Court of its jurisdiction under s.2.24(3) to make the declaration sought. It will be because the effect of that provision is in law to validate the Order in Council amending Part 10 of the town planning scheme. Even if the result is the same in either case, failing to obtain a declaration of invalidity because the law says that Part 10 is valid is not the same as failing to obtain the declaration because the law says that the Court has no jurisdiction to make it. A question of jurisdiction arises in the latter case but not the former. The decision below was correct in holding that the P & E Court had jurisdiction to make the declaration sought by CSR. Both appeals must therefore be dismissed with costs. -- 23 of 23 --