Douglas & Ors v Brisbane City Council [1992] QPEC 6

) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE P. & E. Appeal No. 169 of 1991 BETWEEN: CARMEL MICHELE DOUGLAS & ORS. Appellants BRISBANE CITY COUNCIL Respondent 20th March, 1992 REASONS FOR JUDGMENT - ROW D.C.J. 24th March, 1992 In this appeal, the respondent raised as a preliminary point a question as to the jurisdiction of the Court to hear and determine the appeal on the basis that the rights which accrued to the appellants under and pursuant to the City of Brisbane Town Planning Act have been extinguished by the Local Government (Planning and Environment) Act 1991. The onus is on the appellants to establish that the Court has jurisdiction. The subject land is situated at 30 Ellis Street, Kangaroo Point, Brisbane. Under the 1978 Town Plan, the subject land was included within the Residential B zone and was in a Residential Development Area which was undesignated. Under the 1987 Town Plan, the subject land was retained within the Residential B zone but was subject to a Residential Development Area designation of R3. The 1987 Town Plan was gazetted on 13th June, 1987 at which time the City of Brisbane Town Planning Act was in force. It is not in issue that as at the 13th June, 1987 a right to make a claim for injurious affection under the City of Brisbane Town Planning Act accrued. A duly completed claim for compensation by the appellants was received by the respondent on 12th June, -- 1 of 7 -- 00 2 1990. Between 22nd July, 1990, (the respondent not having made a decision on the ·claim for compensation) and 15th April, 1991, it was open to the appellants to lodge an appeal to the then Local Government Court under the City of Brisbane Town Planning Act. A Notice of Appeal based on the refusal by the respondent to decide the claim for compensation within the time prescribed by law was lodged in the Planning and Environment Court on 3rd October, 1991 . No time limit was imposed within which the appeal was to be instituted. The Local Government (Planning and Environment) Act came into force on 15th April, 1991. Under s.13 of the City of Brisbane Town Planning Act, the appellants had a right to claim compensation in relation to injurious affection consequent upon the change in the designation of the Residential Development Area for the subject land. That claim was able to be made within 3 years of the coming into force of the 1987 Town Plan under and pursuant to s.15(3) of the City of Brisbane Town Planning Act. The claim duly lodged by the appellants is, in the circumstances, within time. Under s.15(4) of the City of Brisbane Town Planning Act, if within 40 days after receipt by the respondent of the duly completed claim for compensation the respondent has not made a decision on the claim or having made a decision thereon, has not communicated this decision to the claimant, the claimant may appeal to the Local Government court which shall have jurisdiction to hear and determine the claim. On the admitted facts, the respondent did not make a decision within the said period of 40 days referred to in sub- s . 4 . No time limit is imposed on a claimant in -- 2 of 7 -- 3 relation to the time within which an appeal to the Court may be lodged. It was submitted by Counsel on behalf of the appellants that the appellants have a continuing right to proceed with the claim for compensation under the City of Brisbane Town Planning Act notwithstanding the repeal of that Act by virtue of s.20(1)(c) or alternatively 20(1)(b) of the Acts Interpretation Amendment Act 1991. Counsel for the respondent submitted that the right had been extinguished by virtue of the provisions of s.20(1)(c) of the Acts Interpretation Amendment Act by necessary implication having regard to the fact that the provisions of s.8(10)(9) of the Local Government (Planning and Environment) Act specifically deals with matters which are preserved under the saving provisions of that Act. It was submitted that as the Act specifically refers to applications the nature of which is identified in sub-s.9(a) the omission of reference therein to a claim for compensation creates a necessary implication that a claim for compensation is not preserved thereunder. Section 3A of the Acts Interpretation Amendment Act of 1991 provides as follows:- "The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act". Section 20 provides as follows:- " ( 1 ) The repeal, amendment or expiry of an Act or a provision of an Act does not - (a) (b) (c) .....affect the previous operation of the Act or provision or anythin~ ~uffered, done or begun under the Act or provision; or affect a right, privilege, obligation or liability acquired, accrued or incurred under the • • II Act or provision; .... -- 3 of 7 -- 4 The effect of s. 3A and s. 20 is to be equated with the provisions of the previous s.20(1) of the Acts Interpretation Act 1954 as amended. The right to appeal accrued under the City of Brisbane Town Planning Act and is not extinguished by the express words of s.8.10(9) of the Local Government (Planning and Environment) Act. There is no express intention within the words to extinguish the rights of the appellants to proceed with the claim for compensation which had accrued to them prior to the commencement of the Local Government (Planning and Environment) Act 1991 . Whilst references to decisions of Courts depend significantly on the wording of the relevant Acts under consideration, some assistance is to be gained from the decisions of the Full Court in Madsen v. Western Interstate Pty. Limited, ex parte, Western Interstate Pty. Limited (1966) Qd.R. 163 and Anderson v. Elvins, ex parte Anderson (1980) Qd.R. 382. In Madsen v. Western Interstate Pty. Limited (supra), Hanger J., as he then was, in considering the provisions of s.20 of the Acts Interpretation Acts 1954-1957 examines the effect of the words "unless the contrary intention appears". In that context, he draws the distinction between those circumstances wherein an implication arises, and, on the other hand, where an inference may be drawn in stating at p.166:- "An implication is included in and part of that which is expressed; an inference is something additional to what is stated". At p.169 Douglas J. stated:- "It is not argued that the contrary intention does appear in the repealing statute in so many words; but it is argued that the contrary intention appears by necessary implication. It is submitted by reason of the fact that -- 4 of 7 -- 5 the Le~islature provided expressly for "actions and proceedings commenced or pending at the date of repeal" and no ot~er~ that those are the only actions and proceedings that it intended to continue and that the Court must infer ~hat. th:e contrary intention appears by necessary implication. If this argument is correct it is difficult to see the reason the Legislature had for the insertion of the phrase which appears at the commencement of s.4(14) of the State Transport Act of 1990. Further it would seem more ~ikely that if it desired to express a contrary intention in a statute such as that under consideration the Legislature would do so in express words and n~t by implication." In Anderson v. Elvins, (supra) Lucas J. at p.384-5 stated:- "Wi th regard to the first question it is of course clear that the contrary intention referred to in s. 20 must be found in the repealing Act. It may be shown either by express words or by necessary implication from the provisions of the repealing Act .... In Anderson v. Elvins, (supra) there were no express words excluding the operation of s.20 of the Acts Interpretation Act. In the appeal before me, there are no express words in the Local Government ( Planning and Environment) Act 1991 excluding the operation of s.20 of the Acts Interpretation Act. The issue of the Court is whether the provisions of s.10.8(9) of the Local Government ( Planning and Environment) Act necessarily carries the implication that the subject proceedings cannot be continued after the City of Brisbane Town Planning Act has been repealed. The Local Government (Planning and Environment) Act is silent in relation to claims for compensation. It refers in s.8.10(9) to applications. The fact that it refers to applications cannot, in my view, lead to a necessary implication that it intended from those words to exclude or not preserve rights which had accrued in relation to a claim for compensation under the repealed City of Brisbane Town Planning Act. -- 5 of 7 -- 6 As an alternative submission, it was put by Counsel on behalf of the appellants that the right to claim compensation and to institute proceedings consequent upon the failure of the respondent to decide the claim within the time prescribed by law was preserved by s.2O(1)(b) of the Acts Interpretation Act Amendment Act 1991. The appeal before the Court related to a claim for compensation which had begun under the City of Brisbane Town Planning Act and was in accordance with the provisions thereof. The Local Government (Planning and Environment) Act within itself prescribes for the procedure to be adopted in relation to claims for compensation made under that Act and does not purport to relate to claims for compensation under the repealed City of Brisbane Town Planning Act. In those circumstances I am satisfied that the right of the appellants to pursue the claim for compensation is not extinguished but is preserved by the provisions of s.20(1)(b) of the Acts Interpretation Amendment Act. For the reasons above, I am satisfied that the Court has jurisdiction to hear and determine the appeal in relation to the claim for compensation which was duly lodged under the City of Brisbane Town Planning Act. The fact that the Notice of Appeal was lodged after the coming into force of the Local Government (Planning and Environment) Act is of no significance in relation to the preservation of rights which has accrued under the City of Brisbane Town Planning Act. Section 20(1) of the Acts Interpretation Amendment Act relates to a right, privilege, obligation or liability acquired, accrued or incurred under the -- 6 of 7 -- 7 Act. The institution of the appeal is but a further step in relation to the accrued right of the appellants to fnstitute an appeal consequent upon the failure of the respondent to decide its claim for compensation within the prescribed time under the City of Brisbane Town Planning Act whereby the appellants had an accrued right to institute an appeal in relation thereto. Section 8(10) of the Local Government (Planning and Environment) Act in relation to a claim for injurious affection under the City of Brisbane Town Planning Act does not displace the operation of s.20 of the Acts Interpretation Amendment Act. I find that the Planning and Environment Court has jurisdiction to hear and determine the appeal. -- 7 of 7 --