_Chang & Another v Laidley Shire Council_

Planning and Environment Court of Queensland|2005-08-18

[1] Before the court for determination (pursuant to an order of Judge Wilson SC of 1 July 2005) is the Appellant-developers' "application in pending proceeding" for determinations by the court:

"That the Application that is the subject of this appeal:

a)

is not contrary to the draft regulatory provisions of the Draft South East Queensland Regional Plan ("the Draft SEQ Regional Plan") as it is a reconfiguration for rural residential purposes in accordance with section 4(3)(c)(i) of the draft regulatory provisions, being the zoning under the superseded planning scheme.

b)

In addition or in the alternative to (a) above, is not contrary to the draft regulatory provisions of the Draft SEQ Regional Plan as it is associated with a material change of use for which a development approval is in effect, in accordance with section 4(3)(b) of the draft regulatory provisions as in effect on 28 October 2004, being a rezoning approval.

c)

In addition or in the alternative to (a) and (b) above, the Application remained a current application despite the Respondent returning the application fees to the Appellants.

d)

The Application is a properly made application pursuant to section 3.2.1 of the Integrated Planning Act 1997.

e)

The Respondent must give to the Appellants an acknowledgement notice. ..."

[2] The Appellants did not pursue (b). Their underlying appeal is "against the refusal by Laidley Shire Council (the Respondent) to grant a development approval ... for the Reconfiguring of a lot under a Superseded Planning Scheme", seeking that the appeal be allowed, the development application "be accepted as a properly made application" and be approved subject only to the imposition of reasonable and relevant conditions.

[3] The Council received the application (to reconfigure a 16.67 hectare site as 25 rural residential lots) on or about 3 December 2004. It advised its approach in a letter of 21 January 2005:

"Council advises that the Acknowledgement Notice for this development application is due to be given on Monday, 24th January 2005, and this letter is designed to explain why the Council will not be issuing an Acknowledgement Notice.

1. The application was lodged after 28 October 2004, the day when the Draft Regulatory Provisions of the Draft South East Queensland Regional Plan took effect and seeks to create allotments having an area less than 100 hectares;

2. The application relates to land in Regional Landscape and Rural Production Area;

3. The land is currently zoned "Rural Landscape" in the Laidley Shire Planning Scheme;

4. The land was zoned "Rural Residential A" under the transitional planning scheme;

5. The application is a development application (superseded planning scheme).

Section 4 of the Draft Regulatory Provisions provides:

1.

Subsection (2) applies for land in the following areas:

(a)

the Regional Landscape and Rural Production Area;

(b)

...

2. Reconfiguration of a lot may not occur if any resulting lot would have an area less than:

(a) If the planning scheme states a minimum lot size greater than 100 hectares - the area stated

(b) To the extent the land is located in a designated agricultural area the minimum lot size stated in the planning scheme; or

(i) For rural residential purposes on land designated or zoned for rural residential purposes; and

(ii) The application for the reconfiguration is made within two years of the day these Draft Regulatory Provisions came into effect".

Legal advice the Council has obtained has concluded that the exception created by section 4(3)(c) of the Draft Regulatory Provisions does not apply to this development application as the land is currently not designated or zoned for rural residential purposes. Consequently the development application is contrary to the Draft Regulatory Provisions and, pursuant to section 3.2.1(7)(f) of the Integrated Planning Act 1997, is not a properly made application."

(The erroneous reference to 28 October 2004 (a day late) is replicated elsewhere.)

[4] At some point fees of $4,200 which had accompanied the development application were returned. There was no attempt by the Council to exercise any discretion it might have had under s3.2.1(9) of the Integrated Planning Act 1997 (IPA) to "accept" the development application. In the circumstances there is no "refusal" of it to be the subject of the appeal. The parties were not interested in pursuing arid procedural points; rather, they were content to have the court determine the issues - which are important ones regarding the effect of the first instalment of changes in the planning regime for south-east Queensland in the form of the Draft South-East Queensland Regional Plan. That instrument or document was gazetted on 27 October 2004 (see Exhibit 1) when the responsible Minister notified under s2.5A.14 of the IPA that it was available for inspection and comment. The IPA had already been amended to provide for the making of "The SEQ Regional Plan". See Chapter 2, Part 5A. Section 2.5A.10 is:

"(1) The SEQ regional plan is the instrument made by the regional planning Minister under section 2.5A.15(2).

(2) The SEQ regional plan is a statutory instrument under the Statutory Instruments Act 1992 and has the force of law."

[5] Public consultation about the contents of the Plan was envisaged, for which purpose s2.5A.13(1) required the Minister to "prepare a Draft SEQ Regional Plan". Section 2.5A.24(1) provides:

"(1) When a notice is published under section 2.5A.14(1)(a), any proposed regulatory provisions of the draft SEQ regional plan (the draft regulatory provisions) have effect until the SEQ regional plan comes into effect."

[6] It might be noted (the parties did not refer to it) that it is declared in subsection (5)(b) that "draft regulatory provisions may state transitional arrangements for development applications affected by the draft regulatory provisions."

[7] Part G of the Draft SEQ Regional Plan contains the "Draft Regulatory Provisions" referred to. Section 1 allocates all land in the region to one of the following:

(e) Mt Lindesay/North Beaudesert Investigation Area."

[8] The mapping referred to allocates the Appellants' land to (a). Quite specific provision is made in the DRP about certain development:

"Division 3 - Provisions regulating development (Act s2.5A.12(2)(d))

(1) Subsection (2) applies for land in the following areas:

(a) the Regional Landscape and Rural Production Area;

(2) Reconfiguration of a lot may not occur if any resulting lot would have an area less than:

(a) if the planning scheme states a minimum lot size greater than 100 hectares - the area stated in the planning scheme; or

(b) to the extent the land is located in a designated agricultural area the minimum lot size stated in the planning scheme; or

(a) the number of lots that would be created by the reconfiguration is the same or less than the number of lots to be reconfigured; or

(b) the reconfiguration is associated with a material change of use for which a development approval is in effect; or

(i) for rural residential purposes on land designated or zoned for rural residential purposes; and

(ii) the application for the reconfiguration is made within two years of the day these Draft Regulatory Provisions came into effect."

[9] Section 2.5A.12(2)(d) provides that "regulatory provisions" which may be included in "the SEQ Regional Plan" may "otherwise regulate a development by, for example, stating aspects of development that may not occur in stated localities; [and (e) state transitional arrangements for development applications affected by the regulatory provisions]".

[10] The era of the DRP came to an end on 30 June 2005, the day when there was gazetted the Minister's notification under s2.5A.16 "that the South East Queensland Regional Plan 2005-2026 (the SEQ Regional Plan) was made on 29 June 2005 and has effect on and from 30 June 2005". See Exhibit 2. The South East Queensland Regional Plan 2005-2026 includes Part H Regulatory Provisions, which are not in exactly the same terms as the superseded Part G draft regulatory provisions. It is now s5 that controls subdivision for land in the (a) area. It was common ground between the parties that the now superseded s4 is the provision requiring consideration by the court; subsection 3(c) makes transitional arrangements which the Appellants contend are applicable; no other potentially relevant transitional provisions were pointed to.

[11] What is at stake for the Appellants is their ability to carry out the reconfiguration they applied for. Also at stake, if they are denied that ability, is their possible claim to compensation. The IPA deals with the topic of compensation for what used to be called injurious affection by changes in planning arrangements in Chapter 5, Part 4, most importantly s5.4.2:

"5.4.2 Compensation for reduced value of interest in land

An owner of an interest in land is entitled to be paid reasonable compensation by a local government if--

(a) a change reduces the value of the interest; and

(b) a development application (superseded planning scheme) for a development permit relating to the land has been made; and

(c) the application is assessed having regard to the planning scheme and planning scheme policies in effect when the application was made; and

(d) the assessment manager, or, on appeal, the court--

(ii) approves the application in part or subject to conditions or both in part and subject to conditions."

[12] Only by the steps described in (b), (c) and (d) may the Appellants avail themselves of possible compensation. Mr Trotter, for the Appellants, collected authorities demonstrating the law's approach to construction whereby in cases of injurious affection, exclusion of compensation is not lightly found. See Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33 at [31] and [32], Resort Management Services Ltd v Noosa Shire Council [1996] QCA 441; (1996) 92 LGERA 387, at 389-391 and 392 (a case about s20(2)(c) of the Acts Interpretation Act 1954), Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 at [62] and Bromley v The Forestry Commission of NSW [2001] NSWCA 34 at [44]. However, there can be injurious affection or dispossession without compensation, as in Bone v Mothershaw [2002] QCA 120; [2003] 2 Qd R 600; 121 LGERA 75. See in particular para. [37], per Williams JA.

[13] Mr Hinson SC (for the Council, which may be presumed to be unenthusiastic at the prospect of having to pay compensation to the Appellants) pointed to s5.4.4(1) of the IPA whereby:

"(1) Despite sections 5.4.2 and 5.4.3, compensation is not payable if the change- -

(a) has the same effect as another statutory instrument, in respect of which compensation is not payable ..."

It is not clear that the DRP, which are silent as the compensation, are a statutory instrument, although appearing to satisfy s7(2) and (3) (notification of a public nature) of the Statutory Instrument Act 1992; one would think that the "effect" given to them by s2.5A.24(1) corresponds with the effect enjoyed by the SEQ Regional Plan; it is given statutory instrument/force of law status by s2.5A.10(2). It appears to follow that the IPA provisions about compensation admit of significant exceptions.

[14] Mr Trotter and Mr Keliher, appearing for the Appellants, supplied a written outline of argument containing the following summary:

"1. In this matter it is appropriate to take a purposive approach when reading the various provisions. The purpose of the Draft Regulatory Provisions having immediate effect is to maintain the status quo until the final SEQ Regional Plan takes effect. There is no apparent purpose to remove the rights of persons in the situation of the Applicants to lodge a superseded planning scheme application, nor is there any apparent purpose to remove their potential rights to compensation.

There is no necessary inconsistency between the provisions of the Draft Regulatory Provisions and the sections of the IPA permitting the making of a superseded planning scheme application; they can be read together, and should be so read.

The provisions of the Draft Regulatory Provisions should not be read in such a way as to impliedly repeal sections of the IPA in the circumstances of this matter.

It is not correct to read the provisions in such a way as to not only find inconsistency but to find an implied repeal in these circumstances, as such a reading would take away vested rights, including a potential right to compensation.

The Draft Regulatory Provisions are regulations made under delegated authority made under one Part of the IPA and can therefore not be inconsistent with other Parts of the IPA.

Despite the introduction of the Draft Regulatory Provisions, the Applicants' right to lodge a development application (superseded planning scheme) remained extant until 28 March 2005.

The wording of s.3.2.1(7)(f) of the IPA involves a conclusion of law that would ordinarily fall within the jurisdiction of this Court in determining an appeal on its merits. Such determination would include reliance on many provisions of the IPA, including s.4.1.5A.

Unlike the matters referred to in s.3.2.1(10) of the IPA, the assessment manager, in this case, is entitled to accept the application, even if it is, in his opinion, not properly made.

Given the consequences for the Applicants in the current circumstances, it is appropriate that the Court exercise its discretion if that be necessary under s.4.1.5A. Such discretion extends to circumstances where the application is not properly made.[1] "

[15] The proposition in the second sentence in para. 1 is one borne out by the explanatory notes accompanying the Integrated Planning and other Legislation Amendment Bill 2004 in respect of the provision which became section 2.5A.24:

"The key reason for the regulatory provisions to have effect is to ensure that the provisions can implement a "holding pattern" with respect to key regional development outcomes pending the finalisation of the regional plan, amendment or replacement".

I have difficulty in reconciling the Appellants' proposition which follows that sentence. By definition, a "holding pattern" is compromised by letting through any new applications for rural residential-type development in areas where such development is clearly intended to be prohibited. As has been seen, the DRP leave a door open to a limited extent. It is a question whether section 4(3)(c) avails the Appellants.

[16] They had every expectation, prior to 27 October 2004, of being able to establish a rural residential subdivision on their land. On 4 December 1992 in respect of that land there was gazetted an Order in the Council excluding it from the Rural "A" zone as provided for in the Planning Scheme in the Shire of Laidley (its approval had been notified in the gazette on 12 November 1977) and including it in the Rural Residential Zone. That zoning continued by its adoption in the Shire's new planning scheme adopted in 1996. It did not survive in the current Planning Scheme for Laidley Shire gazetted 28 March 2003 in which the land is placed in the "Rural Landscape" designation; the minimum lot size contemplated for reconfiguration is 60 hectares. Given what Mr Trotter described as the IPA's "prohibition of prohibitions", the current local planning arrangements would not necessarily be fatal to the development application (superseded planning scheme) lodged on 3 December 2004. Section 2.1.23(2) of the IPA provides that "a local planning instrument may not prohibit development on, or the use of, premises. Mr Hinson is correct that the Appellants gain no assistance from the 1992 re-zoning, which came into effect as an amendment of the 1977 Planning Scheme. The reason is that that planning scheme was in time superseded by the 1996 one, which, rather than the 1992 re-zoning approval, gives rise to the development rights which the Appellants seek to exercise. A comparable situation existed in Mimehaven Pty Ltd v Cairns City Council [2002] QCA 276; [2002] 121 LGERA 216. (Section 2.5A.12(3) of the IPA provides that "regulatory provisions-(a) are taken to be a temporary local planning instrument"; this is so only to the extent of their doing any of the matters mentioned in subsection (2)(a)(c); it is not the case in respect of regulatory provisions described by (d) or (e).)

[17] The "the prohibition of prohibitions" does not apply to the DRP: they do not satisfy the schedule 10 definition of "local planning instrument" as "a planning scheme, temporary local planning instrument or planning scheme policy."

[18] The Appellants' application to the Council satisfies the requirements of the schedule 10 definition of "development application (superseded planning scheme)" in particular in having been made:

"(iii) within two years after the day of the planning scheme or planning scheme policy creating the superseded planning scheme was adopted or the amendment creating the superseded planning scheme was adopted."

[19] Section 3.2.5 regulates acknowledgement notices for such applications. It provides for things the acknowledgment notice "must state", including by subsection (3):

"(a) that the application will be assessed under the superseded planing scheme; or

(b) that the application will be assessed under the existing planning scheme."

The former situation is picked up by section 3.5.4(4) of the IPA:

"(4) If the application is a development application (superseded planning scheme) and the applicant has been given a notice under section 3.2.5(3)(a), the assessment manager must assess and decide the application as if -

(a) the application were an application to which the superseded planning scheme applied; and

(b) the existing planning scheme was not in force; and

(c) for chapter 5, part 1, the infrastructure provisions of the existing planning scheme applied."

In such circumstances, as one finds in section 4.1.52(3)(b), the court also must:

"(i) consider the appeal as if the application were made under the superseded planning scheme; and

(ii) disregard the planning scheme applying when the application was made."

On the other hand, where the acknowledgement notice states in terms of section 3.2.5(3)(b), the applicant may be able to establish a claim to compensation if section 5.4.2 is satisfied. The Appellants have been shut out of that possibility (likewise the possibility of their development application succeeding) by the Council's refusal to "receive or to accept" the application.

[20] Section 3.2.1 of the IPA deals with receipt and acceptance of development applications which must be made to the assessment manager in the approved form and contain the specified "mandatory requirements". The concept of a "properly made application" is created by subsection (7):

(a) the application is made to the assessment manager; and

(b) the application is made in the approved form; and

(d) the application is accompanied by the fee for administering the application; and

(e) if subsection (6) applies - the application is supported by the evidence required under subsection (5); and

(f) the development would not be contrary to the regulatory provisions or the draft regulatory provisions."

As its content suggests, (f) was added to the IPA along with chapter 2 part 5A (by the Integrated Planning and Other Legislation Amendment Act 2004). The new subsection (10)(b), replicating (7)(f), removes the assessment manager's discretion under (9) to receive, and after consideration accept "an application that is not a properly made application", whereupon it "is taken to be a properly made application."

"(8) The assessment manager may refuse to receive an application that is not a properly made application"

It would appear that even if the assessment manager purported to act under (9) "after consideration", the provision would not have the effect of requiring an application such as the one presently in issue to be taken to be properly made. In my opinion, where a development applied for would be contrary to the DRP, the application for it is not a properly made application.

[21] The lack of a "properly made application" is not necessarily fatal to an applicant's cause. A saving indulgence may be made available by the court under section 4.1.5A of the IPA:

"4.1.5A How court may deal with matters involving substantial compliance

(1) Subsection (2) applies if in a proceeding before the court, the court -

(a) finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but

(b) is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.

(2) The court may deal with the matter in the way the court considers appropriate

In respect of the predecessor provision in section 4.1.53, which was more narrowly expressed, the Court of Appeal in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2002] QCA 470 took the view:

"that the expression 'properly made application' is used in the Integrated Planning Act when it intended by the legislature to be used. The power given to the Court under section 4.1.53 is not circumscribed by reference to an application that is a properly made application for the purposes of section 3.2.1 of the Integrated Planning Act. The operation of section 4.1.53 is not by its terms limited to IDAS requirements of a procedural kind, and there is no reason for implying such a limitation".

I am unable to identify any scope for application of section 4.1.5A here. It was calculated to provide relief to a person who should and could have complied fully with some requirement of IPA or another Act. There is nothing the Appellants could have done to comply with the implied requirement that their proposed development not be contrary to the DRP, consistently with continued pursuit of that proposal.

[22] Assuming contrariety, Council by subsection (8) was entitled (if not obliged) to refuse to accept the application. No case is made for this court's overriding the Council's approach.

[23] In a context such as the present it is necessary to be alert to the implications of section 20(2)(c) of the Acts Interpretation Act 1954, to the effect that the "amendment" of an Act (which may occur by implication: see (b) in the definition of "amend" in section 36) does not "affect a right, privilege or liability acquired, accrued or occurred under the Act" - and of like provisions. The Appellants have had the right to make development applications in respect of their land all along which they could expect to have assessed under the law as of the date of the application. That law included the right to make a development application (superseded planning scheme) within two years after the coming into effect of a new planning scheme. Before the Appellants applied, the law was changed by the coming into effect of the DRP. Barring their disallowance in some way, the IPA gives them "effect" from 27 October 2004. The Council says they preclude the development applied for. They certainly do not preclude all development applications in respect of the land. Whatever may have been the Appellants' situation had their development application preceded 27 October 2004, I am unable to perceive any scope for operation of the Acts Interpretation Act. I do not think Mr Trotter argued otherwise. However, he pointed to it as part of our legal environment, and a factor which may persuade the court to embark on its task of construction with a bias against finding inconsistency between the DRP and the supporting provisions of the IPA on the one hand and the established provisions of the IPA (nowhere specifically referred to in recent amendments) which are the source of the Appellants' reasonable expectations, on the other. He cited Alexander Jonathan Brown v Environment Protection Authority [1992] NSWLEC 103 and B and D Kelly v Shoalhaven City Council [1991] NSWLEC 119.

[24] I do not think it can be contended that the general prohibition in s4 of the DRP does not apply. While it was not argued that the exemption in (3)(b) applies, it was contended that the following exemption in (c)(i) for a reconfiguration "for rural purposes on land designated or zoned for rural residential purposes" did. "Rural-residential" is defined in the accompanying glossary as "a form of low-density residential developments characterised by large lots of between 2,000m2 to 5 hectares in a rural or semi-rural setting and with a net residential density of less than four dwellings or residential lots per hectare," which is descriptive of the proposed development.

[25] The crucial issue is whether the land is "designated or zoned for rural-residential purposes." It was so zoned in consequence of the 1992 approval, and the 1996 Planning Scheme, but has not been so zoned or designated since 28 March 2003. Mr Hinson submitted that (c)(i) focuses on a current designation or zoning; the Appellants' contention is that some historical examination may be undertaken and reliance placed on the zoning which prevailed from 1992 until March 2003. Such an approach may be considered supported by the potential for the Appellants to make a development application (superseded planning scheme) until 28 March 2005. Mr Hinson pointed to passages at pages 13 and 15 of the Draft South-East Queensland Regional Plan which in terms indicate that the reference in the DRP is to the way in which lands are "currently" allocated or zoned:

"The Draft Regional Plan allocates all land in SEQ into one of five broad categories. These areas provide the spatial context for the Draft Regulatory Provisions set out in Part G of the Draft Regional Plan ...

The intent of the Regional Landscape and Rural Production Area is to ensure its long term protection from inappropriate forms of development, particularly the encroachment of urban land uses and the further fragmentation of land holdings for rural residential and other similar activities. This is achieved through the Draft Regulatory Provisions of the Draft Regional Plan in Part G."

"The Regional Landscape and Rural Production Area preserves existing development rights to ensure the continuation of significant activities including agricultural production, availability of natural resources, water storage, tourism, nature-based recreational activities and nature conservation in currently designated areas. However, the Regional Plan does envisage that some lands currently allocated for rural residential in local government planning schemes, but not developed or included in the Rural Living Area, will have a limited opportunity for development. ...(Page 13)

Rural Living areas comprise certain areas that are currently zoned for rural residential development in local government planning schemes and are substantially developed for that purpose. Future rural residential development through infill and consolidation of these areas is permitted under the Regional Plan." (Page 15)

There is room for doubt about the status of such material. Whereas the whole of the SEQ Regional Plan (which may or may not contain similar statements) is made a statutory instrument with the force of law by s2.5A.10(2) of the IPA, so far as the Draft SEQ Regional Plan is concerned, nothing is said about its efficacy other than that "any proposed regulatory provisions...have effect": s2.5A.24(1). It is not necessary to have any regard to such problematic material to reach the conclusion (which I do reach) that references in s4(3)(c)(i) are relevantly to the 2003 Planning Scheme.

[26] A similar exercise in construction was undertaken in Devine Ltd v State of Queensland [2005] QPELR 326, where the statute referred to circumstances "existing" and it was determined that there was no requirement that those circumstances continued to exist after the relevant commencement date. If I am correct about s 4(3)(c)(i), the DRP cannot be construed so as to avoid inconsistency with what the Appellants contend are their vested rights to pursue their development application (superseded planning scheme). The Appellants' submissions expanded slightly on their summary in this respect:

"7. The Applicants' position is that the IPA specifically permits the lodging of a superseded planning scheme application, and the Draft Regulatory Provisions cannot and do not prevent the lodging of such an application. Further, such an application is to be treated as if the new planning scheme was not in force (i.e. the subject land is to be treated as if it is zoned "Rural Residential A"), and would therefore fall within the exception provided for by s.4(3)(c) of the Draft Regulatory Provisions.

8. The essential question for the Court to determine today is:

Did these Draft Regulatory Provisions remove the right of the Applicants to make a superseded planning scheme application?

9. In others words, are these regulations made under delegated authority to be read as operating in such a way as to impliedly repeal certain sections of the IPA in circumstances such as the present, thereby depriving the Applicants of vested rights, including the potential right to compensation?"

[27] Authorities relied on as telling against a conclusion that there was any implied repeal of sections of the IPA or defeating of the Appellants' vested rights included Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1, 10, Hack v The Minister for Lands (NSW) [1905] HCA 37; (1905) 3 CLR 10, 23, Butler v The Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268, 275-76, Alexander Cowan & Sons Ltd v Lockyer [1904] HCA 19; (1904) 1 CLR 460, 466, Sargood Brothers v The Commonwealth [1910] HCA 45; (1910) 11 CLR 258, 279, The Commonwealth v Hazeldell Ltd [1918] HCA 75; (1918) 25 CLR 552, 563, Mabo (supra), Bromley (supra), Resort Management Services (supra), Kettering (supra), R v Industrial Registrar ex parte Sulphide Corporation Ltd [1918] HCA 80; (1918) 25 CLR 9, 20-21, The Great Fingall Consolidated Ltd v Sheehan [1905] HCA 43; (1905) 3 CLR 176, 184, Northbuild Constructions Pty Ltd v Lockton [1999] QCA 91 at [5] (in the reasons of Thomas JA), Verdouw v City of Unley [2000] SASC 410 at [19] and Kingston v Stickens [2002] QDC 255 at [12]. Various passages from D J Gifford & K H Gifford, How to Understand an Act of Parliament (8th) were relied on and Dixon J's statement in Federal Capital Commission v Laristan Building & Investment Co Pty Ltd [1929] HCA 36; (1929) 42 CLR 582 at 588 to the effect that the words "subject to this Act and to any other ordinance":

"... indicate no intention that the legislative power of the Governor-General in Council may be exercised otherwise than consistently with the will of Parliament as disclosed by this or any other Statute."

[28] Everything comes down to what Parliament wills. There is a pithy statement in MacAdam and Smith, Statutes, (3rd) at 286 to the effect that "if the provision conferring power to make regulations contains a provision, in effect authorising the amendment of the Act by regulations, then the regulations are treated in the same way as an amending Act." No authority is cited, but the proposition is convincingly reflected with copious citation of authority in Bennion, Statutory Interpretation (4th) in passages that may be found at 199-202:

"Must not conflict with law Unless the enabling Act so provides, delegated legislation cannot override any Act - and certainly not the enabling Act itself.[2] Indeed it is taken not to be impliedly authorised to override any rule of the general law.[3]

However this restrictive principle cannot apply where the implication necessarily arises from the words used in the enabling provision. This arises from the very nature of delegated legislation, and does not need to be stated in the enabling Act.[4]

Has effect as if made by Act Subject to the rule just mentioned that without authority it must not conflict with existing law, a provision of delegated legislation has statutory force. Its effect is the same as if it were contained in an Act.[5] Formerly this would usually be spelt out in the enabling Act.[6]

The effect is the same, whether or not the enabling Act spells it out.[7] This applies even where the person entrusted with the delegated legislative power is not an emanation of the state.[8]

May amend Act The enabling Act may confer power on the delegate to amend the enabling Act itself, or any other Act. A provision conferring such power was formerly known as a Henry VII clause, since it was supposed to reflect that monarch's autocratic tendencies.[9] Such provisions began to appear in the second half of the nineteenth century.[10] They are often used in relation to local Acts.

Example 50.5 The Public Health Act 1875 s 303 (repealed) conferred power to `repeal, alter or amend' by provisional order any local Act `which relates to the same subject-matter as this Act'.

It is not unknown even for modern Acts to give power to amend, or even repeal, public general enactments by delegated legislation.

Example 50.6 The Local Government Act 1972 s252(1) gives power to make modifications in any public general Act, or any instrument `of a legislative character'.[11]

Delegated power is often given to amend monetary limits in Acts.[12] Sweeping general powers to increase, using delegated legislation, the amounts of fines imposed by Act are widely conferred.[13] The Deregulation and Contracting Out Act 1994 s 1 gave Ministers a broad power to amend or repeal any Act passed up to the end of the 1993-94 session, in order to remove or reduce a statutory burden where the effect of the provision in question is to impose, or authorise or require the imposition of, a burden affecting any person in the carrying out of any trade, business or profession. The Act provides a special procedure for such orders, which are popularly known as deregulation orders.

Apart from a power to amend the enabling Act, delegated power may be given to modify its effect from time to time.

Example 50.7 The Supreme Court of Judicature (Consolidation) Act 1925 s50(1) (repealed) said that subject to rules of court costs should be in the discretion of the court or judge.[14] This meant that, while the Act itself gave full discretion on costs to the court or judge, delegated legislation could curtail or even remove this.[15]

Lord Scarman described as 'startling' the power conferred by the Social Security Act 1975 s37A (repealed) to limit the scope of the Act by delegated legislation.[16]

Judicial control The courts have long maintained a right to superintend delegated legislation, though their powers are necessarily limited by the terms of the relevant enabling Act.[17] 'All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that the powers are exercised in good faith. Apart from that the courts have no power at all to enquire into the reasonableness, the policy, the sense or any other aspect of the transaction.'[18]

Parliamentary Control As to parliamentary control over delegated legislation see Code s51. ..."

[29] There is little point in casting around for examples of potent delegated legislation. The application and the effect of the Environmental Protection Act 1994 depends crucially on the contents of the regulations made under it. One example familiar to all Judges in the State is the Criminal Offence Victims Regulation (1995), both generally and particularly in respect of reg 1A and associated regulations effective by SL number 488 of 1997 as from 19 December 1997. This adds enormously to the effect of the Criminal Offence Victims Act 1995 (as the provisions of the Act permitted), and to the amount of compensation some offenders are ordered to pay. It is more concerning to find the effect of an Act cut down; however, in principle, that can be done, and appears to have been done quite deliberately here.

[30] The IPA was amended in September 2004 to provide for the formulation and coming into effect of the SEQ Regional Plan according to legislated parameters. "Stating aspects of development that may not occur in stated localities" by regulatory provisions was in terms envisaged by s2.5A.12(2)(d) - this might occur without attracting the status of "temporary local planning instrument", which subsection (3) described as the fate of provisions described in (2)(a), (b) or (c). It is inescapable that Parliament wished the regional planning Minister to be in a position to change the planning regime in South-East Queensland in the short term from the provisions of s2.5A.13 requiring a draft SEQ Regional Plan to be prepared. The draft is to be publicised under s2.5A.14 with a view to attracting submissions. It is no more than logic and commonsense that the draft might contain anything that the SEQ Regional Plan is permitted to contain. A possibility under s2.5A.15(2)(a) is that the SEQ Regional Plan may be in the same terms as the draft SEQ Regional Plan as published.

[31] By s2.5A.24(1) the DRP are given "effect" on publication of the notice referred to. As to the meaning of the "have effect", it is difficult to see how the DRP would be any less potent than the SEQ Regional Plan under s2.5A.10. Be that as it may, s3.2.1(7)(f) requires, among other things, of a "properly made application" for development approval that "the development would not be contrary to ... the draft regulatory provisions". The IPA in this regard defers to the DRP. The development proposed here is contrary to the DRP, unless I am wrong about s 4(3)(c)(i). The assessment manager was therefore under subsection (8) entitled to refuse to receive an application for approval of that development. As noted already, subsection (10)(b) precluded granting of the indulgence referred to in subsection (9). Here, the court's conclusion is that the IPA provisions regarding a development application (superseded planning scheme), and/or the effect such an application may have, have been considerably modified, pursuant to a process established by the IPA. There was no "properly made application". The Council came under no obligation to give an acknowledgement notice.

[32] The relief sought in the Appellants' application filed 27 June 2005 must be refused. Mr Hinson is probably correct in his submission that, in such circumstances, the appeal ought to be dismissed. The parties will have the opportunity to make further submissions in light of these reasons before final orders are pronounced.

[1] Oakden Investments Pty Ltd v Pine Rivers Shire Council & Anor [2002] QCA 470;(2002) LGERA 256 at 260 Per Mullins J.

[2] Re Davis, ex p Davis (1872) 7 Ch Application 526 at 529.

[3] 5 Co Rep 63a; Hall v Nixon (1875) LR 10 QB 152 at 159; Rossi v Edinburgh Corpn [1905] AC 21. See further Code s58.

[4] In earlier times less afraid of tautology, such statements were included: see everything the Recovery of Small Debts (Scotland) Act 1825 s 23 (repealed).

[5] Dale's Case (1881) 6 QBD 376 at 398; Re Langlois and Biden [1891] 1 QB 349 at 355; Kruse v Johnson [1898] 2 QB 91 at 96; Re Macartney, Brookhouse v Barman (1920) 36 TLR 394; Swain v Law Society [1983] 1 AC 598; Ex p Austintel Ltd (1996) Times, 11 November; Hughes v Kingston upon Hull City Council [1999] 2 All ER 49.

[6] The practice has been traced back to the Statute of the Staple 1385: W Graham Harrison, Notes on the Delegation by Parliament of Legislative Powers (1931), p 66.

[7] Institute of Patent Agents v Lockwood [1894] AC 347 at 361.

[8] Swain v Law Society [1983] 1 AC 598; Mohamed v Alaga & Co (a firm) [1998] 2 All ER 720 (rules made by Law Society under Solicitors Act 1974).

[9] C K Allen, Law and orders (3rd edn, 1965) Stevens & Sons, pp 100-102. See also R v Minister of Health, ex p Wortley RDC [1927] 2 KB 229.

[10] See everything the Factory Acts Extension Act 1867 s 14 (repealed); Anatomy Act (1832) Amendment Act 1871 s 2 (repealed).

[11] Another example is the House of Commons Disqualification Act 1975 s5 (power to amend list of offices set out in Sch 1 to the Act). See also the Banking Act 1987 s7; Town and Country Planning Act 1971 s287(6) (repealed). As to the construction of an Act by reference to amendments made in it by delegated legislation see Deposit Protection Board v Dalia [1993] Ch 243 at 254.

[12] See eg the Companies Act 1967 s48(2) (repealed); Gas Act 1972 s19(1) (repealed); Consumer Credit Act 1974 s181.

[13] See eg. the Magistrates' Courts Act 1980 s 143; Criminal Justice Act 1982 s 38.

[14] Emphasis added. See now the Supreme Court Act 1981 s51(1) as amended by the Courts and Legal Services Act 1990.

[15] As to the precise juridical nature of such provisions see EMI Records Ltd v Ian Cameron Wallace Ltd [1982] 3 WLR 245, per Megarry V-C at 254.

[16] Lees v Secretary of State for Social Services [1985] AC 930 at 933.

[17] In relation to byelaws, the courts have exercised a more stringent supervision than in the case of other forms of delegated legislation: see Code s 65.

[18] Carltona Ltd v Comrs of Works [1943] 2 All ER 560, per Lord Greene MR at 564. See also Lewisham Borough Council v Roberts [1949] 2 KB 608; Minister of Agriculture and Fisheries v Matthews [1950] 1 KB 148. Various aspects of judicial control are dealt with in the following sections of the Code: s 15 (the Padfield approach), s24 (judicial review); s57 (duty to exercise delegated powers); s58 (doctrine of ultra vires); s59 (rule of primary intention); s65 (byelaws); s67 (sub-delegation) s329 (natural justice etc).

Instruments Act 1992

Supreme Court of Judicature (Consolidation) Act 1925

Recovery of Small Debts (Scotland) Act 1825s 23

Factory Acts Extension Act 1867s 14

Amendment Act 1871s 2

House of Commons Disqualification Act 1975

Criminal Justice Act 1982s 38.

Public Health Act 1875s 303

Deregulation and Contracting Out Act 1994s 1

Social Security Act 1975

Magistrates' Courts Act 1980s 143

Supreme Court Act 1981

Courts and Legal Services Act 1990

Town and Country Planning Act 1971

Consumer Credit Act 1974

At a glance

Court

Decision date

Source

Judgment (154 paragraphs)

Parties

Legislation Cited (21)

Cases Cited (11)