Bruce Small Estates & Ors v Council of the City of Gold Coast [1992] QPEC 82

IN THE PLANNING AND ENVIRONMENT COUR'J: HELD AT BRISBANE QUEENSLAND P. & E. Application No. 21 of 1992 BETWEEN: BRUCE SMALL ESTATES & ORS. Applicants COUNCIL OF THE CITY OF GOLD COAST Respondent REASONS FOR JUDGMENT - QUIRK D. C·. J. Delivered the Lt-£/, day of ~~1992 In this matter, the applicants seek a declaration that, by reason of s.5.6 of the Local Government {Planning and Environment} Act 1990 (as amended), it was not open to the respondent Local Authority to impose upon its approval of an application to subdivide certain land at Benowa (the subject land) a condition requiring the dedication of part of the land for use by the public for recreational purposes. Before turning to s. 5. 6, there is a preliminary matter which must be decided and which requires an examination of the transitional provisions of the Act. Section 8.10(9) (a) provides that: "Where prior to the commencement of this Act, an applic~tion of any kind to which this Act refers was duly made to a Local Authority (that was not finally approved by the Local Authority or the Governor in Council, as the case may be, prior to the comme1;1cement . of t_his Act), the application is to be dealt with as if this Act had not commenced". -- 1 of 7 -- 2 It is common ground that an application to subdivide the subject land was made in 1989 prior to the commencement of the Act. The proposed subdivision involved what is generally understood as a "canal subdivision" and provided 274 allotments. In March of 1992, subsequent to the commencement of the Act, what was described as an "amended proposal plan" was submitted to the respondent. The layout of this proposal was substantially different to the earlier one and provided 429 allotments from what is understood as a "lake subdivision". It was this proposal that was considered by the respondent in making its decision to approve and to impose the challenged condition. The attitudes of those involved with the making and consideration of the applications has added to the confusion which has occurred. The material put before me suggests that representatives of the applicant had argued at one point that the new proposal was but an amendment of the application earlier submitted. The material also appears to indicate that, in dealing with the application, some planning officers who advised the respondent proceeded on the basis that the provisions of the current Act applied to its consideration. The reverse position is now adopted by the respective parties with the applicant maintaining that the Act does apply to any decision made on the amended proposal and the respondent contending primarily that what was dealt with was no more than an amendment to the application made prior to the commencement of the Act. However, little assistance is to be gained from these matters and the preliminary question is one of law which can be decided on facts which are not disputed. -- 2 of 7 -- 3 Attention was drawn to the fact that if the subject application was indeed one governed by the Act then many of the formal requirements of the Act which relate to the making of subdivisional applications (notices, fees and the like) do not appear to have been met. This does seem to be the case but such matters, and the planning authority's response to them, do not assist greatly in resolving the preliminary question. To maintain perspective, attention must be focussed upon the proposal which was before the Council when it resolved to impose the challenge condition. In deciding whether or not the Act applied to it, the relevant question appears to be; Was the respondent considering an application "duly made prior to the commencement of the Act". An understanding of the significance of the words "duly made" is assisted by what was said in such cases as Brisbane City Council v. Mainsel Investments Pty. Ltd. (1989) Qd.R. 204 and Fraser Island Defenders Organisation Limited v. Hervey Bay Town Council (1983) Qd.R. 72 and in the latter case one finds a suggestion by Connolly J. (at p 74) of a useful test to determine whether or not, in a given case, a particular application has been "duly made". Applying that test to the present case it would seem to me to be clear enough that, if, at the time that the amended proposal was considered by the respondent, the repealed Act was still in force, the applicant would not have been successful in obtaining a prerogative writ compelling the respondent to give a decision on the amended proposal and, further, that in respect -- 3 of 7 -- 4 of the amended proposal, any "deemed refusal" provisions would not apply. Leaving aside such questions as the applicability to the amended proposal of provisions such as s.34B of the repealed Act (dealing with "lake subdivisions•) the amended proposal was clearly one which was quite different in substance from the original application. Further, the changes that were made appear to be beyond the scope of the opportunity to ammend provided for in s.34(10A) of the repealed Act. I find that, whatever else may be the result of formal defects arising under the Act in respect of the subdivisional proposal considered by the respondent and in respect of which the challenge to condition was imposed, it was not one "duly made" prior to the commencement of the Act. As a consequence it was not one required to be dealt with as if the Act had not commenced and any decision upon it therefore called for the application of any relevant provisions of the Act. I turn then to s.5.6 of the Act which provides: " ( 1) (a) Where in respect of land the subject of an application to subdivide, land has not been previously surrendered for parks or a contribution made to a Local Authority instead of surrender, the Local Authority may require as a condition of approval of an application to subdivide land for residential, commercial or industrial use, whether or not by way of a stage subdivision, that - (i) an area of land be provided for use as a park " The relevant and undisputed history of the matter is that, pursuant to an agreement in writing dated 28th December, 1977, made between the first applicant and the respondent in respect of the rezoning of land which admittedly included the subject -- 4 of 7 -- 5 land, the applicant surrendered certain specified land for "park purposes". Although it is not directly related to the question to be here determined, it is noted that the agreement provided that, until the end of the year 2002, the respondent would seek no further contributions of land for park purposes in respect of the land subject to the agreement. Section 5.6 appears to limit the circumstances in which the surrender of land for park purposes may, by way of a condition of a subdivisional approval, be obtained. These circumstances do not include those where land has been previously surrendered for parks in respect of the land the subject of the application. It is quite apparent that in this case, in respect of the land the subject of the application to subdivide, land has been surrendered previously for park purposes. The only answer offered by the respondent to the contention that it is thereby precluded from seeking any further contribution as a condition in this case is that the words, "previously surrendered for parks" should be construed as referring to any surrender of land subsequent to the commencement of the Act. The submission is put forward on two bases, namely; 1. The need to nowadays interpret a provision by pref erring the interpretation that will best achieve the purposes of the Act (Acts Interpretation Act s.14A(l)) 2. The presumption against retrospectivity (Maxwell v. Murphy 1957 96 C.L.R. 261, 267). -- 5 of 7 -- 6 Whichever way one approaches the matter, the construction contended for by the respondent involves a reading of the words "previously surrendered" as meaning "surrendered after the commencement of this Act" and I am unable to see any acceptable basis for doing this. I appreciate that there has been considerable development in the law of statutory interpretation regarding the importance to be attached to the meaning which a word has at the time when the Act is passed but it is not necessary to go into that here. I do not believe however that there is any justification for depriving the word "previously" which the legislature has chosen to use when passing the Act of its ordinary meaning, i.e. "some unspecified time in the past". It is true that the stated objectives of the Act are set out in s.1.3 but I do not accept that the Act's status as a code is in any way threatened by the construction which I favour. It was agreed by both Counsel in argument that this provision is obviously aimed at what is colloquially called "double dipping" by a Local Authority in respect of park contribution. One might observe that decided cases in this Court have rarely favoured such a thing and it might quite plausibly be argued that the Act, as a "code", was doing no more than making clear, by express provision, the inappropriateness of such a practice. I do not accept that the presumption against retrospective operation of a Statute operates to compel the construction advanced by the respondent. The statement of law to be found in Maxwell v. Murphy (1957) 96 C.L.R. 261 is well enough known but the meaning of retrospective operation must be understood. I can -- 6 of 7 -- 7 do no better than to adopt the helpful explanation by the authors of "Statutory Interpretation in Australia", (Pearce and Geddes Jrd Edition, p.181 at 10.3); "Al~ l_egislation impinges on existing rights and 01:>l1.gat1.ons. Conduct that could formerly be engaged in will have to be modified to fit in with the new law. It cannot the:efore be said that in this sense legislation is ret:ospe'?ti ve because this is true of all legislation. Legislation only operates retrospectively if it provides that, as at a past date, the law is to be taken to have been that which it was not - that rights and obligations are changed with effect prior to the commencement of the legislation". This is not a case where the Act, and this section as I construe it, prevents a contribution for park purposes by changing rights or obligations of the parties with effect prior to its commencement. If it changes anything at all, it is only the right of the respondent to seek contribution for park purposes, but in so doing it is effective only after its commencement. In all of the circumstances I am prepared to make a declaration that: "By reason of s.5.6 of the Local Government (Planning and Environment) Act 1990 a~ amended, the responde~t w~s not entitled to impose upon its approval of the applica~ion to subdivide in accordance with Plan No. 913GB land situated at Benowa Road, Kilbreck Street and Edinburgh Road, Benowa at the Gold coast a condition calling for an area of land to be provided for use as a park". It must be clearly understood that in so doing I am in no other way ruling on the validity or otherwise of the relevant decision of the respondent. To that extent the application is allowed. -- 7 of 7 --