Council of the Shire of Albert v Deves & Anor [1993] QPEC 78

I} IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P. & E. Appeal No. 192 of 1993 Before O'Sullivan DCJ [Re: Council of the Shire of Albert v Deves] BETWEEN: COUNCIL OF THE SHIRE OF ALBERT Appellant - and - CEDRIC GEORGE DEVES and LYNLEY EVELYN DEVES Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): Respondents REASONS FOR JUDGMENT 28/10/1993 Application for Building Approval from Local Authority to construct dwelling; s. 42 Building Act 1975-1992 (as amended); whether "duly made"; Failure of respondent to obtain written consent of easement holders over the land; Whether easement holders are "owners" for the purposes of s.30A(2)(a) of the Building Act; Consequences flowing from that interpretation; statutory interpretation; Acts Interpretation Act 1954-1992 (as amended) s. 14A; Building Act (1975-1992) ss.5, 30A(2)(c). Mr PG Bickford for the Appellant Mr C G Deves for himself as Respondent Messrs King & Co for the Appellant Mr C G Deves for himself as Respondent 9 September 1993 -- 1 of 19 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND BETWEEN: P. & E. Appeal No. 192 of 1993 COUNCIL OF THE SHIRE OF ALBERT Appellant CEDRIC GEORGE DEVES and LYNLEY EVELYN DEVES Respondents REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. Delivered the 28th day of October, 1993 This is an Appeal by the Council of the Shire of Albert pursuant to s. 42(1) of the Building Act (1975-1992) (as amended) ( "the Act"). The Council appeals against the decision of the Building Advisory Committee ("the Committee") of 3rd June, 1993. The Cornmi ttee reversed the decision of the appellant of 28th October, 1992 that the respondents' Building Application was not "duly made", and upheld the decision of the Building Tribunal. The respondents applied to construct a dwelling on vacant land situated at 88 Lawrence Drive, Nerang ( "the land"). By letter dated 29th October, 1992 the appellant advised the respondents that the building application would not be considered until it was approved and signed by all adjoining unit owners who have easement rights over the land. The material relied on by the appellant shows a number of easement holders object to the proposed building work. -- 2 of 19 -- 2 The land contains 6288 m2 and is described as Lot 4 on RP 181802, Parish of Gilston, County of Ward. The respondents are the registered proprietors of the estate in fee simple holding as joint tenants. The respondents have granted easements for access and recreational purposes to 52 adjoining unit owners. The unit owners who hold registered easements are variously located in three unit blocks known as "Palm Grove Village". Palm Grove Village No. 1 (BUP5694) is situated on Lot 1, RP181802, Parish of Gilston, and comprises 1497m2 . Palm Grove Village No. 2 (BUP5695) is situated on Lot 2 on RP181802 and comprises 67Sm2 . Palm Grove Village No. 3 (BUP6428) is situated on Lot 3 on RP181802 and comprises 4449rn2 . A copy of the RP 181802 forms part of affidavit material relied on by the appellant. The land is a large irregular-shaped parcel virtually surrounded by Lots 1, 2 and 3. Paragraph 1 of the Notice of Appeal alleges an error of law by the Committee in its determination that the respondents' application for building approval was "duly made" in accordance with the requirements of sub-s. 30A(2)(c) of the Act. Paragraph 2 of the Notice of Appeal alleges that by virtue of that error of law the Committee lacked jurisdiction to make its decision. Paragraph 3 of the Notice of Appeal was abandoned. -- 3 of 19 -- 3 The appellant seeks Orders that the Appeal be allowed and the decision of the Committee of 3rd June, 1993 be quashed in toto. In addition, it seeks various Declarations that the Application was not "duly made" and that the appellant is not required to decide the Application until all the relevant consents have been obtained. The principal issues raised in the Appeal are: (i) whether the words "the owner" appearing in sub-s. 30A(2)(c) of the Act include the holders of easement rights over the land; and (ii) if yes to ( i), whether the consent of all holders of easement rights is required. Pursuant to s.30A of the Act, a person seeking approval for building work must satisfy the requirements set out in sub- s. 30A( 2). Sub-section. 30A(2)(c) of the Act is as follows:- "An application to the local authority for approval referred to in sub-section (1)(c) shall be accompanied by the written consent to the making of the application of the owner of the land on which the building work is to be carried out if the applicant is not the owner." Sub-section 30A(2A) of the Act is as follows:- "An application is not duly made to the local authority unless sub-section (2) is complied with." -- 4 of 19 -- 4 The application, ("the Application"), includes the follow- ing: "OWNER: Name: C & L Deves Address c/o builder BUILDER: Name: P.I. Sweeney Address: 14/46 Spencer Rd Suburb: Nerang P/c 4211 I/We hereby consent to the lodging of this building application ....... date Signature of land owner .... ( .. Deves) ( .. Deves) Signature of applicant ..... (Illegible signature) ..... I/We hereby consent to the lodging of this building application by the applicant nominated above. 16/10/92 date Signature of building/structure owner .... ( .. Deves) ... ( .. Deves)" When construing sub-s.30A(2) (c) of the Act, and in par- ticular the words "if the applicant is not the owner", I con- sider that some importance attaches to the separate references in the Application to "land owner" and "applicant". I assume that "the applicant nominated above" is in fact Mr Sweeney - this is not plain from the Application. I note that the Application differs from the Form which is prescribed in Appendix 3 to the Standard Building By-laws. That Form includes provision for "Applicant-name" and postal and telephone details. A somewhat similar situation, involving an applicant and an owner, arose in Wajnberg v. Raynor and Melbourne Metropolitan Board of Works (1970-71) 22 LGRA 130. The relevant part of the application form in that case was: -- 5 of 19 -- 5 "Where the applicant is not the owner, the concurrence of the owner must be evidenced by his executing the following: I/We Robert A. Raynor of 9 Balaclava Road, East St Kilda the owner(s) of the above described land hereby concur in the above application. Dated the 26th day of November, 1968. Signature of owner(s) Robt. A. Raynor ... " The issue for determination was whether there was sufficient evidence before the Town Planning Appeals Tribunal to establish that Mr Raynor was the owner of the land. The respondent tendered Certificates of Title to show that another party was registered proprietor of the land. The Court held ( amongst other things) that "Unless something more appears, a person who signs the "owner's certification" on the application form may be regarded by the responsible authority and by the Tribunal as the owner of the land within the meaning of the Town and Country Planning Act 1961 (Vic), s.3." It also held that the production of the Certificates of Title raised a contested issue as to the ownership of the land within the meaning of s.3 of that Act. No such contest arises here. Mr and Mrs Deves are the registered proprietors of the land. Appellant's submissions: The appellant contends that the Application is not "duly made" since it does not include the written consents of all -- 6 of 19 -- 6 persons holding easements over the land. This contention is based on an interpretation that holders of easement rights are within "owner" in s. 5 of the Act, and sub-s. 30A( 2) ( c) of the Act and their consent is thus required. "Owner" in s.5 as follows:- "'Owner', in relation to any land, building or other struc- ture, includes any person having an estate or interest the- rein, or the occupier thereof, or any person who is a registered encumbrancee in respect thereof." (underlining added) Counsel for the appellant submitted that registered easement holders have " ... an interest in land ... and are registered encumbrancees". He relied on a number of authorities, and on s. 36 of the Acts Interpretation Act (1954-1992). He cited Municipal District of Concord v Coles (1906) 3 C. L. R. 9 6 at 11 0 where Barton J. adopted the definition of easement in Gale on Easements as:- "a privilege without profit, which the owner of one neighbouring tenement hath of another ... by which the servient owner is obliged 'to suffer or not do' something on his own land, for the advantage of the dominant owner." Halsbury's Laws of England, 4th ed., 1975 Vol. 14, page 4 defines an "easement" as follows:- "a right annexed to land to utilise other land of different ownership in a particular manner (not involving the taking of any part of its soil) or to prevent the owner of the other land from utilising his land in a particular manner." -- 7 of 19 -- 7 I was also referred to a decision of the High Court in Wallace & Ors v Love & Ors [1922] 31 C.L.R. 156. At p. 164, in their joint judgment Knox C.J. and Starke J. said:- "The word 'encumbrances' , in its ordinary connotation means that a person or estate is burdened with debts, obligations or responsibilities. True, the word is in law especially used to indicate a burden on property, a claim, lien or liability attached to property ( see Oxford Dictionary, under title 'Encumbrance'}." Higgins J. at p. 172 stated:- " ... 'Encumbrances' is a technical word, and ought to receive its technical interpretation unless there is a plain intimation to the contrary; ... Even if we treat the· word as not technical, we must apply the ordinary meaning in common speech. . .. According to Wharton an encumbrance is - 'a claim, lien or liability, attaching to property'. This definition of Wharton's is adopted by the Oxford Dictionary which also adds a 'burden on property'. In the standard dictionary the meaning in the law is stated as a paramount claim or interest resting as a charge upon land lessening its value to the owner or tenant; any lien or liability attached to real property; as, a mortgage, a registered judgment, and a right of dower are encumbrances." Section 36 of the Acts Interpretation Act ( 1954-1992} includes the following:- "' interest' , in relation to land or other property, means - as follows:- ( a) a legal or equitable estate in the land or other property; or (b} a right, power or privilege over, or in relation to, the land or other property;" I consider that for the purposes of the Act the grantees of easements fall within "owner" in s.S of the Act. -- 8 of 19 -- 8 Accepting that the grantees of the easements are within "owner" in s.5 of the Act, the appellant relies on principles of statutory interpretation to submit that since "owner" in s. 5 of the Act is very broad, reference to "the owner", rather than "l!!! owner", in sub-s.30A(2)(c) of the Act indicates an intention that all persons, who fall within "owner" are required to consent to the making of the Application before it will be "duly made". Counsel for the appellant referred to two cases: Doonside Properties Pty. Ltd. v. Randwick Municipal Council (1962) 8 L.G.R.A. 381 and Longa v. Blacktown City Council (1985) 54 L.G.R.A. 422. Both cases concerned notices issued pursuant to provisions of the Local Government Act (1919) (NSW) which were similar to ss. 52 and 54 of the Act; they required the issue of notices to appellants to demolish additions to dwellings erected without Council approval. The definition of "owner" in s. 4 of the relevant Act in both Longa and Doonside commences with the words "Owner", in relation to land, includes every person who jointly or severally, whether at law or in equity .... ", and then lists various categories of persons. In Longa (supra) the Court was concerned with a section which required an owner to demolish a building or carry out such work as is necessary to make the building comply with the Act. -- 9 of 19 -- 9 If the order is not obeyed, the council may enter upon the building and the land and execute the order. Cripps J. said, at page 427: "I need not determine therefore whether the word "owner" where appearing in s.317B(1A) should be given a meaning as defined ins. 4 of the Local Government Act in accordance with the submission of Mr Schofield. Mr Ayling, on behalf of the council, has submitted that if the word "owner" is given its defined meaning, the result would be that council would be required to give notice to mortgagees. Whether or not that proposition is correct in law, I am bound to say I do not regard it as an affront to concepts of ordinary fairness ... " Doonside (supra) concerned the question who was the owner of the land for the purposes of section 317B of the Act. Mr Stewart was the person who was rated in respect of the land, while Doonside Properties Pty Ltd was the registered proprietor. I consider that the matters before the Court in Longa and Doonside can be distinguished from the issues raised for deter- mination here. Respondent's submissions: The respondents submit that a basic rule of statutory interpretation is that an Act be construed according to the intention of the Parliament that passed it. Such intention is to be found by examining the language used in the Act as a whole. If the words of an Act have a plain or ordinary meaning in their statutory context then these words should be given that plain meaning. -- 10 of 19 -- 10 The respondents identified the operative words in the definition of "owner" as "any" and "or". They referred to the definition of "any" in the Concise Oxford Dictionary, namely: "one or some but no matter which" and the definition of "or" in that Dictionary namely, alternatives". "introducing the second of two The respondents submitted that if the signatures of all owners were required for the Application to be valid then the words "all" and "and" would have been used. Since these words were not used, an "owner" is one or some but not all persons who establish they have an estate or interest in relation to the land, the subject of the application. The end result, in the respondents' submission, is that an application will be "duly made" under the Act if it has "an owner's" signature on it rather than "all owners' signatures". I have considered further legal dictionary definitions in addition to those provided to me. Stroud's Judicial Dictionary of Words and Phrases (1986), Vol. 1 defines "any", inter alia, as follows:- " ( 1) "Any" is not confined to a plural sense (Eaton v Lyon, 30 E.R. 1223, 1225). (2) "Any" is a word which excludes limitation or qualification (per Fry L.J., Duck v Bates, 12 Q.B.D. 79); It is "as wide as possible" (per Chitty J., Beckett v Sutton, 51 L.J.Ch. 433) .... " "Any" has also been interpreted to read "all", see Holmes v Meynell, Raym T. 452." -- 11 of 19 -- 1 1 In contrast, in Re Fowles [1968] Q.W.N. 49, the word "any" was held to be used in its singular sense where a testatrix bequeathed monies to "~ny hospital ... controlled ... by the Methodist Church ... ". In that case, Hoare J. (citing Eaton v L~on (supra)) stated that the question as to whether the word is in fact used in the singular or in the plural depends upon its context or subject matter. Principles of statutory interpretation: The fundamental rule of statutory interpretation is that plain words must be given their plain meaning. The first and foremost consideration in the interpretation of a statute is to have regard to the words used, and where those words are clear and admit of no ambiguity then they should be given ef feet accordingly. What then is the plain meaning of the words "the owner" in sub-s. 30A(2)(c) of the Act? "Owner" is not defined within s. 30A, or Part 4A, of the Act. "Owner" is included in the interpretation section of the Act, in the terms I have already quoted. What does the clause encompass? Is it a definition? Is it exhaustive? I consider that it is not, because of the use of the word "includes". -- 12 of 19 -- 12 In George Robinson v. The Local Board of the District of Barton Eccles (1883) 3 A.C. 798 the House of Lords said, at page 801 : "An interpretation clause of this kind is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary, to be applied to something to which it would not ordinarily be applicable". Stroud's Judicial Dictionary of Words and Phrases (page 1263) states: "(1) "Shall include" is a phrase of extension, and not of restrictive definition and is not equivalent to "shall mean" ... ( 2) "Include" is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statue; and when it is so used, these words or phrases must be construed as comprehending not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include ...... " (citing Dilworth v. The Commissioner of Stamps (1899) A.C. 99). I believe the "natural import" of the word "owner" is registered proprietor. There is some support for this in Union Trustee Co of Aust Ltd v Federal Commissioner of Land Tax (1985) 20 CLR 526 in which the Court held that the definition of the term "owner" should be read as if after the words "owner, in relation to land, includes", the words "besides absolute owners", were inserted, and so read the definition was exhaustive. -- 13 of 19 -- 13 The need to recognise the natural or ordinary meaning of words, in addition to meanings within a definition using the word "includes", is illustrated in Carter v. Bradbeer (1975) 1 WLR 1204. I consider some meaning needs to be given to the word "or" in the "owner" clause in s. 5 of the Act. To do so is to recognise that within the clause there are alternative classes. Within the s.5 clause, then, "owner" could mean any or all of the following: (i) absolute owners (registered proprietors); (ii) any person having an estate or interest therein (such as holders of easement rights); (iii) occupiers; (iv) registered mortgagees; (v) registered encumbrancees. For the purposes of s.30A(2)(c) of the Act which of these is applicable? Various principles of statutory interpretation are of assistance in answering this question. 1. Section 14A of the Acts Interpretation Act (1954-1992) is as follows:- "Interpretation best achieving Act's purpose: -- 14 of 19 -- 14 (1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. (2) Subsection (1) applies whether or not the purpose is expressly stated in the Act." 2. "Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which would introduce uncertainty, friction or confusion into the working of the system": Shannon Realties Ltd. v. Ville de St. Michel (1924) A.C. 185. I consider that to choose any of the alternative classes, other than registered proprietor, would be to introduce "uncertainty, friction or confusion" into the granting of approvals for building work under the Act. With some of the alternative classes, especially (ii), it may not even be possible to ascertain who are the persons within the class. Nor would it be possible for the Local Authority to satisfy itself that all persons within the class had indeed consented. This being so, the whole system of building approval under the Act may "grind to a halt". I note that no rights of objection to building work are given by the Act to the persons who come within "owner" in section 5. To construe ss.30A(2)(c) of the Act in the manner suggested by the appellant may be to do this, and possibly to go even further, namely, to thwart the process whereby a person may obtain approval for building work under the Act. -- 15 of 19 -- 15 3. Lord Blackburn said in River Wear Commissioners v. Adamson (1877) 2 App Cas 743, 764: "We are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear". I believe the "ordinary signification" of owner is registered proprietor(s). 4. Cooper Brookes (Woollongong) Pty Ltd v Commissioner of Taxation (Cth) 147 CLR 297, 320-321: "Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute ... ... the proprietary of departing 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. Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention ... " The appellant urges a literal reading, namely, that all persons within the classes in "owner" in s.5 of the Act should consent pursuant to s.30A(2)(c) of the Act. Such an approach in -- 16 of 19 -- 16 my view not only leads to inconvenience and improbability of result, but it also does not conform to the legislative intent of the section as discerned from other provisions in the Act. The policy of s. 30A of the Act is essentially facilitative. Nothing in other provisions, including but not limited to those nominated by Counsel for the appellant, persuades me that it was intended that the consent of the classes in "owner" in s. 5 of the Act would be required. To construe owner as registered proprietors for the purposes of s. 3 OA ( 2) ( c) of the Act would produce a fairer and more convenient operation. 5. A result which is "unreasonable and contrary to the public interest" should be rejected in favour of an alternative construction which is "tenable according to the language of the Act": Ishak v Thowfeek (1968) 1 WLR 1718, 1724. 6. Macquarie University v. Ryde Municipal Council (1977) NSWLR 304, 317: "In deciding between competing interpretations, a court can, and should, have regard to consequences of those interpretations: Brunton v. Commissioner of Stamp Duties (1913) AC 747, 759 and should adopt the construction which avoids "injustice, or even hardship, or inconvenience, unless it is clear that such was the intention of the legislature": Tiverton & North Devon Railway Co. v. Loosemore (1884) 9 App.Cas. 480, 497. The court may have regard, not merely to matters touching the ease or inconvenience of administration under the legislation ... " I believe that regard should be had to the consequence of an interpretation that all the classes in s.5 of the Act should give consent. -- 17 of 19 -- 7. 17 Johnson v. Moreton (1980) A.C. 37,50: 3. If the words of a statute are capable, without being distorted, of more than one meaning, the courts should prefer the meaning which leads to a sensible and just result complying with the statutory objective and reject the meaning which leads to absurdity or injustice and is repugnant to the statutory objective ... " I consider that a "sensible and just result" is that for the purposes of s.30A(2) of the Act "owner" means registered proprietor. 8. In construing an instrument where its words are susceptible of two meanings it is always legitimate to take into account reasonableness, justice and consistency on the one hand, and unreasonableness, injustice and absurdity on the other: Metropolitan Coal Co. of Sydney Ltd. v. Australian Coal & Shale Employees Federation (1917) 24 CLR 85, 99; Pacific Seven Pty Ltd. v Sandringham City Council (1982) VR 157, 162; Sunbird Plaza Pty. Ltd. v. Boheto Pty Ltd. (1982) Qd.R. 807,817; Re Athanassopoulos (1982) 41 ALR 603,610. Summary: Applying the principles of statutory interpretation I have outlined above, and looking at the purpose of ss.30A(2)(c) of the Act I consider that ss.30A(2)(c) of the Act requires the consent of the "owner" in its ordinary, popular and natural sense, namely, the registered proprietor(s). I therefore consider that the holders of the easement rights, as a class, are not within "the owner" in ss.30A(2)(c) of the Act. -- 18 of 19 -- 18 If I am wrong in this, and the term does include the holders of easement rights, then I consider that one of the class can consent: see Crosby v. Alhambra Company Limited (1907) 1 Ch. 295; Smith v Gibbs (1985) 2 Qd.R. 58. Orders: I dismiss the Appeal. I refuse the Declarations sought by the appellant. -- 19 of 19 --