Dixon v Ipswich City Council [1993] QPEC 25

L . . . . h t 20/o.)5 State· Reporting-BuJ4 eau TRANSCJUPT ()F PROCEEDfr~GS (Copyright in this transcript is vested in the Crovvn. Copi:::; thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT JUDGE ROW p & E No 12 of 1993 BARRY RICH DIXON and IPSWICH CITY COUNCIL BRISBANE .. DATE 23/04/93 JUDGMENT l'~ppellant Respondent L!f.T, J::111111' Ju, G Stree t Br.isbane Q. 400() Telep}10ne: (07) 227 4360. FacsimilP! rmi ?? 7 i;i;~? w Courts, eorge ____ ,__ __ .- , , -- 1 of 9 -- 230493 1 HIS HONOUR: I dismiss the application. I publish my reasons. 10 20 30 40 50 60 2 JUDGMENT -- 2 of 9 -- J ) ) ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P. & E. Application No. 12 of 1993 Before Row DCJ [Re: Dixon v. Ipswich City Council) BETWEEN: BARRY RICHARD DIXON -and- IPSWICH CITY COUNCIL REASONS FOR JUDGMENT Judgment delivered: 23/04/1993 Catchwords: Counsel: Solicitors: Hearing Date(s): M E Rackemann for the App.licant s M Ure for the Respondent s A Baker & Associates for the Applicant City Solicitor for the Respondent 16th April 1993 -- 3 of 9 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P. & E. Application No. 12 of 1993 BETWEEN: BARRY RICHARD DIXON Applicant IPSWICH CITY COUNCIL Respondent 16th April 1993 REASONS FOR JUDGMENT ROW D.C.J. Delivered the 23rd day of April 1993 Brisbane By an originating application filed on 26th March 1993, the applicant sought declarations: 1. That the applicant may lawfully build a dwelling house on land situated at Bundamba in accordance with Building Approval No. 620 of 1992 given by the respondent on 15th June 1992. 2. That the only conditions to which the approval is subject are those which were noted on the approved plans by the respondent on 15th June 1992. 3. That the approval is not subject to certain conditions purportedly imposed by way of a letter from the respondent to the applicant dated 29th June 1992. The respondent disputes the jurisdiction of the Court under s.2.24 of the Planning and Environment Act to make the declarations sought in the originating application. The onus is on the applicant to satisfy the Court that it has jurisdiction. For the purpose of resolving that issue, the -- 4 of 9 -- 2 Court accepts the facts as alleged by the applicant. City Centre Projects (No. 2) Ptv. Ltd. v. Albert Shire Council (1992) Q.P.L.R. 258 at 259. Material filed establishes that the applicant owns a vacant block of land zoned Residential C on which he desires to construct a dwelling house. Under the relevant Town Planning Scheme, a dwelling house is a purpose for which premises may be erected or used in that zone without the consent of the respondent. On 27th May 1992, the applicant lodged an application under the Building Act for building approval for the erection of a dwelling house on the subject land. On 15th June 1992, the respondent approved, subject to conditions, the building application. The conditions were noted on the approved plans. By letter dated 29th June 1992, the respondent, notified the applicant that the said approval was amended by the addition of two further conditions. Those conditions were not part of the conditions endorsed on the approved plans. The power of the Court to make a declaration is contained in s.2.24(1) of the Act. Under s.2.24(1), any person may bring proceedings in the Court for a declaration in respect of matters referred to in sub-s. 3. . . Under s. 2. 24 ( 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 a Planning Scheme or the use of land; or (c) any offence defined in s.2.23(1). Under s.7.4(2) of the Act, the jurisdiction of the Court under the Act is exclusive. Section 7.4(3) confers a limited right of appeal to the Court of Appeal -- 5 of 9 -- 3 on error or mistake of law or jurisdictional issues. Consequently under s.7.4(2) of the Act, the jurisdiction of the Court to make declarati· ons •1.n respect of matters set out in s.2.24(3) is exclusive subject to the right of appeal to the Court of Appeal on the limited grounds provided under s.7.4(3) of the Act. The substantive issue before the Court is whether the matters sought in the originating application are matters which are properly within the jurisdiction of the Court under s.2.24{3)(b) of the Act in so far as the Court has jurisdiction in respect of any act, matter or thing to be undertaken in respect of the use of land. The term use is defined in s.1 .4 of the Act as follows: "Use in relation to land, include the carrying out of excavation work in or under land and the placing on land of any material or thing which is not a building or structure and any use which is incidental to and necessarily associated with the lawful use of the relevant land." The definition is inclusive rather than exclusive. Moore v. Kwiksnax Mobile Industrial and General Caterers Pty. Ltd. ( 1 9 91 ) 1 Qd . R . 1 2 5 . The meaning of the word "use" has to be ) determined according to its ordinary and natural use, but in the context of the Planning and Environment Act. Moore (supra) at p.127. The definition of use does not, in those circumstances, preclude the erection of a building or structure from being a use of land within the relevant definition. Such a view accords with other provisions of the Act, for example, s.4.12(1)(a). rt was submitted by Counsel on behalf of the applicant that the construction of a dwelling house on land is a use of land or -- 6 of 9 -- 4 at least is an act, matter or thing to be undertaken in respect of the use of land. The words "in respect of" used in s.2.24 are to be given a wide meaning. Trustees Executors and Agency Co. Ltd. v. Reilly (1941) V.L.R. 110 at 111, McDowell v. Baker 144 C.L.R. 413 at 419. Makucha v. Albert Shire Council (1992) Q.P.L.R. 276 at 279. In Trustees Executors and Agency Co. Ltd. (supra), Mann CJ said: "The words 'in respect of' are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer." It was submitted by Counsel for the respondent that when construing the phrase "use of land", consideration should be given to the scheme of the legislation being the context within which the phrase occurs and to the provisions of s~1.3 of the Act. It was further submitted that the application which was before the respondent was under the Building Act in relation to the issue of an approval for the erection of a dwelling house and was not an application made under any Planning Scheme or the Planning and Environment Act for consent to use land to erect a building thereon for the purpose of a dwelling house. It was submitted that, as the Building Act provides considerable machinery provisions in relation to building applications and a system of appeal rights, on a proper construction of s.2.24(3)(b) of the Act, the Court has no jurisdiction to entertain the application. Since pursuant to s.7.4(2) of the Act, the jurisdiction of the Court under the Act is exclusive, a consideration of the objectives of the Act and the powers conferred on the Court require an examination of the scheme of the legislation. The -- 7 of 9 -- 5 scheme of the legislation is substantially contained in s.1.3 where the objectives of the Act are set out. Under sub-clause {a), an objective of the Act is to provide a code by which a Local Authority or the Minister will undertake the planning of an area to facilitate orderly development for protection of the environment. Under sub-clause (d), the objective is to provide an adequate framework for a person to apply for approval in respect of development proposal and to provide for appropriate appeal rights in respect thereof. The scheme of the legislation does not entail applications under the Building Act in relation to the erection of a building on land. The scheme of the legislation is consistent with the objectives wherein provisions are made whereby a Planning Scheme for an area is developed. The Act further provides provisions whereby applications for approval in respect to development proposals and appropriate appeal rights in respect thereof are prescribed. The words of s. 2. 24 ( 3) reflect a similar approach where under sub-clause (a), the jurisdiction of the Court in relation to declarations is in respect of matters arising under a Planning Scheme and under sub- ) clause (b) in respect of Planning Scheme. The relevant approval for the construction of a dwelling house on the subject land was not made under the Planning and Environment Act but under the Building Act. The words "use of land" in s. 2. 24 ( 3) ( b) should be read in the context of the Planning and Environment Act. That such an approach is proper can be demonstrated if consideration is given, for example, to an action between a lessor and lessee in relation to a lease agreement. On a wide interpretation of the words "use of land" -- 8 of 9 -- 6 such an action undoubtedly is in respect of the use of land. Further, for example, where a criminal offence is committed on land, it would be improbable that a party would have a right to apply to the Planning and Environment Court for a declaration. Many other similar examples are indicative that within the provisions of s.2.24(3)(b), the use of land is to be read in the context of the Planning and Environment Act. The repetition in s. 2. 24 of the phrase "in respect of" where it occurs in sub-s.(1) and sub-s.(3) and sub-s.(3)(b) does not, in my view, enlarge the rights which are conferred thereby relative to the use of land. Undoubtedly the jurisdiction of the Court to hear and determine proceedings for declaration under s.2.24(3)(a) is limited to construction issues arising under a Planning Scheme. "Planning Scheme" is defined in s.1.4 of the Act. A reference to s.2.1 of the Act establishes that planning scheme does not include the Building Act. Provisions for the regulation implementation and administration of a Planning Scheme under s.2.2 of the Act similarly does not include the Building Act. It cannot be said that the provisions of the Building Act are within the ambit of s.2.2(d) (v) as being a matter necessary for the proper and orderly administration of the Planning Scheme. For the reasons above, the s.2.24(3)(b) of the Act should be construed in that the use of land therein referred to, refers to the use of land within the con text of the Planning and Environment Act. For the reasons aoove, I find that the Court has not jurisdiction to hear and determine the originating application. I dismiss the application. -- 9 of 9 --