CSR Ltd v Pine Rivers Shire Council & Anor [1993] QPEC 52

) ) ) ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Application No. 20 of 1993 Before Quirk DCJ [CSR Limited v. Pine Rivers S.C. & Anor.] BETWEEN: CSR LIMITED Applicant - and - PINE RIVERS SHIRE COUNCIL Respondent - and - ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date{s): Second Respondent 15/07/1993 P Lyons QC with Everson for the Applicant C Hughes for the Respondent G Martin for the Respondent by Election Carter Newell for the Applicant RD Forbes for the Respondent K M O'Shea for the Respondent by Election 30/06/1993 -- 1 of 7 -- ) ) ) ) IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND P & E Application No. 20 of 1993 BETWEEN: CSR LIMITED Applicant PINE RIVERS SHIRE COUNCIL First Respondent AND: TH~ ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Second Respondent REASONS FOR JUDGMENT - QUIRK D.C.J. Delivered the 15th day of July 1993 In this matter the applicant, CSR Limited has sought a declaration that an amendment to the Town Planning Scheme for the Shire of Pine Rivers which was approved by Order in Council on 11th June 1992 was unlawful and/or invalid. The basis of the attack upon the amendment's validity was not made clear and it seemed to be agreed by all parties concerned in the matter before me that for the purposes of the ruling which I am now asked to make it was not something with which I should concern myself. Before me an application was made by the Attorney-General for a decision on a preliminary point of law namely: "Does the Planning and Environment Court have jurisdiction to make a declaration under s. 2. 24 of the Local Government (Planning and Environment) Act with respect to the validity of an amendment to a planning scheme after the amendment has been approved by the -- 2 of 7 -- ) ) ) 2 Counsel for the Attorney-General argued that a proper construction of the relevant provisions of the Local Government (Planning and Environment Act called for a negative answer to this question. The Court's jurisdiction to make any declaration flows from s.2.24(3) of the Act which provides: "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; II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The first point made was that the phrase "to be undertaken" should be understood to refer only to "acts, matters or things" which lie in the future. Emphasis was placed on the use of the word "the" before "planning scheme" in sub-paragraph (b) and it was submitted that the sub-paragraph was necessarily referring back to the planning scheme spoken of in sub-paragraph (a). Consequently, it was argued, declarations as to "acts, matters or things to be undertaken" can only be made where one has, at the outset, a planning scheme to construe. Accordingly, a declaration as to the validity or otherwise of a provision of a planning scheme which has been gazetted is beyond the jurisdiction of the Court as "there is no longer anything to be undertaken as would be necessary following a constr11ction of the meaning of a planning scheme". That I am unable to accept this submission is clear from the judgment of the Court of Appeal in Makucha v. The Council of the Shire of Albert & Anor. {1992) Q.P.L.R. 276 where the Court was examining the jurisdiction of this Court to declare as to the -- 3 of 7 -- ) ) ) ) 3 validity of an application to amend a Town Planning Scheme. That decision makes it clear that the Court's jurisdiction to make declarations is limited to neither matters which have not yet occurred or to situations which presuppose the existence of a Town Planning Scheme in any particular form. At 276-277, Pincus JA and Davies JA said: "The relevant question whether the applications for re-zoning were acts, matters or things to be undertaken in respect of the planning scheme for the Albert Shire. The learned judge held that they were not because they 'governed by the Act'. The proposed re-zoning is an act, matter or thing to be undertaken in respect of a planning scheme as well as being in respect of the use of land. It is true, as the judge said, that the points taken in the application for declarations depended on the Act, but the judge's jurisdiction to grant a declaration did not depend upon the ground of the attack on the validity of the applications. In our view, the declarations sought plainly had to do with the proposed re-zonings which were, equally plainly, within the description of subs. (3b) quoted above. In our opinion therefore the Planning and Environment Court had, and of course still has, jurisdiction to hear and determine the application for declarations". Williams J, at 279 said: "The question of jurisdiction comes down to whether or not this is a proceeding for a declaration in respect of any act, matter or thing to be undertaken in respect of the planning scheme or the use of land. The expression 'in respect of' has an extremely wide meaning and catches any connection or relation between the two stated concepts (cf. Trustees Executors and Agency Co. Ltd. v. Reilly (1941) V.L.R. 110 at p. 111. Put in that way it is immediately obvious that a declaration as to the validity of an application to amend the planning scheme or for the re- zoning of a particular parcel of land to permit a particular use enlivens the jurisdiction conferred by s. 2 . 2 4 ( 3) of the i\.ct . ......................... ~ ..... . Given the wide meaning which must be attributed to the expression 'in respect of' and also having regard to the words 'the use of land' the conclusion is inevitable that the Planning and Environment Court has jurisdiction. It matters not that the application in question was of a type envisaged by the Act". -- 4 of 7 -- ) ) ) ) 4 The second argument advanced by Counsel for the Attorney- General called for an interpretation of s.2.24 that has proper regard to s. 14A ( 1) of The Acts Interpretation Act which requires: "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". Attention was drawn to s .1. 3 of the Local Government (Planning and Environment) Act which sets out the Act's objectives in this way: It "(a) To provide a code by which a Local Authority or the Minister may undertake the planning of an area to facilitate orderly development and the protection of the environment; and (b) to provide an adequate framework for a person to apply for approval in respect of a development proposal and to provide for appropriate appeal rights in respect thereof". was argued that it would be "inconsistent with the objectives of the Act, in particular that of providing an adequate framework, for the Planning and Environment Court to have the power to overturn a published planning scheme". The desirability of a planning scheme's enjoying appropriate status and recognition is not doubted. However, to say that s.1.3 provides an exhaustive statement of what the provisions of the Act are setting out to achieve and that the operation of s.2.24 should be confined to achieving only those objectives is, in my view, to take the matter too far. As was pointed out in Makucha, s.2.24 appears to confer upon the Court a broad jurisdiction and s.1.3 does not, in my view, provide any compelling reason for restricting the otherwise apparent meaning of the words that confer that jurisdiction. -- 5 of 7 -- ) 5 The status and recognition of amendments to a Town Planning Scheme are matters dealt with by s.2.20(9) and (11) of the Act. Counsel for the respondent Local Authority referred to these sections and s.4(4}(vi) of the Local Government Act (1936 as amended) as grounds for the Court's declining jurisdiction in this matter. There appears to be a little confusion as to which of the above Acts governed the making of the Order in Council here under examination but it does not seem necessary to resolve that difficulty at this stage. As Counsel for the applicant CSR Limited pointed out, while ) such legislative provisions as these may well have an important bearing on the conclusions that a Court may reach in a particular matter or the relief which a Court might be prepared to grant, it is another thing entirely to say that they have the effect of the depriving a Court of jurisdiction to examine the procedures leading up to the making of the Order in Council and the making ) and gazettal of that Order. As Latham CJ pointed out in Parisienne Basketshoes Pty. Ltd. v. Whyte 59 C.L.R. 369 at 375: "Jurisdiction is not merely jurisdiction to decide a question rightly". I accept the submission that while these provisions may make. it harder to attack the validity of the Order in Council here in question they do not deprive the Court of jurisdiction to embark upon the enquiry as to whether or not the amendment to the Town Planning Scheme was validly made. I also accept the·submission that there is nothing in the language of s.2.24 to suggest that the grant of jurisdiction to make a declaration is to be restricted so as to preclude an examination of amendment to a Town Planning Scheme once that amendment has been gazetted. -- 6 of 7 -- 6 In all of the circumstances I am not prepared to accept the arguments advanced on behalf of the Attorney-General and the Local Authority in this matter and I am not prepared to rule that the Planning and Environment Court is without jurisdiction to make a declaration under s.2.24 of the 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. To that extent the application is refused. ) ) -- 7 of 7 --