KT Corporation Pty Ltd v Queensland Government Department of Main Roads & Logan City Council [2004] QPEC 31

[4] That question opens up the complex and in some respects confused history of dealings between these parties (and others) concerning the sign. In particular, it requires a determination whether the use of the land for the purposes of the advertising sign had ceased within the meaning of s 4.13(18) of the Local Government (Planning and Environment) Act 1990 (PEA). In short, it was the contention of Mr Cochrane, counsel for DMR, that the earlier removal of the existing advertising sign on or about 10 October 2001 meant that, when KT's application came to be considered by Council in December 2002 the old permit for the sign issued on 29 May 1995 had lapsed under the section which relevantly provides:

4.13(18) A permit issued pursuant to sub-section (12) lapses where -

(b)

a use of any premises established pursuant to the permit has ceased for a period of at least 12 months

[5] KT contends that in the circumstances which are relevant here the use had not ceased even though, as it admits, the sign was not in place in that period. It also contends that, absent any cessation of use, DMR had no right to direct refusal of the 2002 application.

[6] The evidence shows an advertising sign with a supporting structure had been in place on this land since before 1970. A company called Australian Posters had leased the land from the owner at the time, Mrs Curtin, and constructed it. At some time before 1994 the sign was registered by Council as a lawful, non-conforming use. In November 1994 an application was made to replace the old sign with a new one, of the same size. Council approved that application on 18 April 1995 and a permit was issued on 29 May 1995.

[7] That permit allowed a sign with dimensions of no more than 18 metres long x 4.5 metres high, with an overall height restriction (including the supports) which required that it did not extend above the background tree line as viewed by motorists travelling south on the highway, or 12 metres, whichever was the lesser. The sign was apparently constructed in terms of that approval but at some later, unknown time (probably in 1996 or thereabouts, when noise barriers were constructed along the highway) it was raised to a height of about 15 metres without any application to Council, or permission from it.

[8] KT purchased the land in October, 2000. At the time the billboard was still leased to Australian Posters but KT began negotiations with another corporation, Australian Billboard Company Pty Ltd (ABsee) and entered into a ten year lease of the sign with it on 16 May 2001. At the same time KT was negotiating with Australian Posters to acquire the hoarding structure but those negotiations came to nought and Australian Posters eventually removed the sign, and the supporting structure (but not, I am satisfied, the footings) on 10 October 2001.

[9] Having learned the previous sign was higher than permitted, ABsee applied to Logan Council on 2 October 2001 to vary the height of the billboard. Council's Acknowledgement Notice of 23 October 2001 showed DMR as a concurrence agency. Believing DMR had a legitimate interest in the matter, as early as 9 October ABsee was in contact with that agency about the application, seeking its approval. ABsee wrote to DMR again on 26 October, enclosing a copy of the application to Council, and again on 7 November enclosing photographs showing 'graphic impressions' of the raised sign.

[10] On 11 December 2001 DMR responded to ABsee to the effect that the proposal did not meet relevant criteria and would not be supported. There the matter rested, DMR says, until KT's renewed application of 5 December 2002 - after a lapse of more than one year during which, of course, the sign was not in place. While DMR concedes there is evidence KT did not abandon an intention to pursue its application during that period, it contends that is insufficient to avoid the strictures of s 4.13(18), PEA.

[11] Against that, KT points to a number of events in the intervening period which are said to negate any presumption of cessation. In short, those circumstances include a background of disputation with the previous lessee of the sign, Australian Posters and the transfer of a licence it held; ongoing efforts by KT's representatives throughout 2002 to advance the matter, which was allegedly stymied by DMR's delay and equivocation; and, DMR's threat to exercise an alleged power to remove the sign even if ABsee replaced it in its old form, complying with the 1995 permit.

[12] The 1995 permit was issued pursuant to an application made under PEA s 3.1(2)(b), a provision which referred to previous, historical but lawful uses of premises before a Planning Scheme came into effect, and provided that the use would continue to be lawful; and, allowed the Local Authority to consent to a modification, alteration, or repair of the structure within certain defined limits. The permit itself, Town Planning Consent Permit No. C 94 0073[2], was issued under PEA s 4(13).

[13] Under the subsequent legislation, the Integrated Planning Act 1997 (IPA) the 1995 approval is a "continuing" approval: IPA s 6.1.23(1)(b) and (2). Under the latter sub-section, however, the continuing approval only has effect for the period it would have had if the PEA had not been repealed. By reference to the repealed Act (s 4.13(18)) the permit may lapse if, as previously set out, the use of the premises established under the permit ceased for a period of 12 months.

[14] KT's application, originally brought in 2001 and renewed on 5 December 2002, was for an increase in the height of the sign to 15 metres (ie, the height to which it had previously been raised, without permission) so as to place it above the noise barriers which obscured it[3]. It was, then, an application under IPA s 3.5.24, or 3.5.33. The former relates to a minor change, and the latter to a change to a condition which would not involve assessable development. When Council sent its Acknowledgement Notice on 19 December 2002[4] it purported to show the application as one for approval for a change under s 3.5.24 although, as Mr Houston who appeared for Logan Council conceded, s 3.5.33 was probably more appropriate.

[15] In any event both sections require that advice of the application be given to any entity which is a "concurrence" agency - but, as the statutory path traced earlier shows, if DMR was never a concurrence agency to the 1995 application it had no immediate rights as a concurrence agency under IPA and, in particular, no right to direct the Council to refuse the application as it has purported to do under IPA s 3.3.16[5]. Nor did it have status as an IDAS referral agency when the original application was made in 2001[6], nor any right to direct the Council to refuse that first application.

[16] These conclusions hinge, however, upon the primary question whether the use has ceased for a period of twelve months. If that has occurred then KT is unable to rely upon the permit it had under the PEA and must now make an application for a fresh development under the IPA provisions, thereby giving DMR the rights under ss 3.3.16 (and 3.3.18) it has purported to exercise in the present case.

[17] The cases on statutes like PEA s 4.13(18)(b) show that, as legislative provisions relating to the preservation of use rights, a liberal construction is preferred[7], but not in a way which exceeds the clear meaning of the legislation. As Mason J said in Woollahra Municipal Council v Banool Developments[8]:

"No doubt s 309(2) is also to be construed liberally, but this injunction is no warrant for failing to give due weight to the natural and ordinary meaning of the words used as influenced by the context in which they are found ... to say that the sub-section permits an existing use to be commenced afresh in the future denies any effective operation to the word 'continuance' at all. "

[18] It is clear that the onus of establishing that existing use rights have been abandoned lies on those who so allege[9] but, also, that those denying cessation cannot simply rely upon a mere intention to preserve existing rights, and nothing more[10]. Rather, the cases show the circumstances relevant to the claimed cessation should be looked at objectively. As Hope JA (with whom Kirby P agreed) said in Hudak v Waverley Municipal Council (1980) 18 NSWLR 709 at 716:

"It is difficult to imagine that an existing use will continue indefinitely despite absence of actual use merely because an owner has an intention to carry on the existing use or to resume it at some time in the future. It was suggested that his intention would operate to continue the existing use if the delaying factor was related to some consideration relevant to the restoration of the use, such as a financial problem or, as in the present case, litigation with his former wife and with the local Council. I have no doubt that these may be relevant considerations but as it seems to me the existence of an intention based on some such factor should and does not necessarily continue the existing use.

As it seems to me, it is necessary to have regard to the whole of the circumstances, including the subjective intention of the relevant person, and to determine whether in the light of all those matters the cessation of actual use proved by the facts is outweighed by an asserted subjective intention to continue the use." (my emphasis)

[19] Many of the cases were helpfully collected by King CJ in Leeming v Port Adelaide City Council (1987) 62 LGRA 296. After re-stating the principle that the use of premises for a given purpose is not necessarily interrupted when activities cease[11] the Chief Justice said, at 307:

"Whether there has been discontinuance must be gathered from all the circumstances. Where activity pursuant to the use has ceased, the intention of the owner or occupier as to resumption is irrelevant although not a decisive consideration. Essentially the question whether an existing use continues or has been discontinued must be determined by reference to what is taking place on the land. The legal character of what is taking place on the land may be affected, however, by the intentions of the owner or occupier. The significance, for example, of the continued presence on the premises of equipment and fittings appropriate to the existing use may depend upon the intentions of the owner or occupier with respect to such equipment and fittings. If they are allowed to remain on the premises for the purpose of facilitating the resumption of activity pursuant to the use on the premises, their continued presence will be a strong indication of a continuance of the use.

A use may be discontinued by means of cessation of activity pursuant to that use accompanied by words or conduct on the part of the owner or occupier indicating unequivocally an intention to abandon or terminate the use. It may also be discontinued by cessation of activity pursuant to the use in such circumstances, or for such duration, or both, as to indicate from a practical point of view that such cessation is no mere interruption of activity pursuant to the use, but amounts to abandonment or termination of the use, irrespective of the subjective intentions of the owner or occupier as to the future."

[20] As King CJ also pointed out, a mere period of inactivity on the land will not necessarily connote cessation of the use. He said, at 304:

"The concept of "use" of land in planning law is not to be equated with activity on the land, nor does a period of inactivity or failure to exercise the use actively necessarily indicate that the use has been terminated, that is to say discontinued. A period of inactivity in the exercise of the use is consistent with the continuation of the use. That is made clear by a number of cases."

(His Honour then referred to Rosenblum v Brisbane City Council (supra); Woollahra Municipal Council v Banool Developments (supra); Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113; and, Nunawading v Harrington [1985] VicRp 64; (1985) 55 LGRA 139.)

[21] Mr Cochrane also referred me to recent Queensland authority on s 4.13(18)[12] concerning the first part of the section (s 4.13(18)(a) and the question whether the appellant in the case, who had a Permit to Develop a Recreational Resort and Convention Centre, had lost that permit by lapse because the proposed development had not been completed within four years. The decision turns, however, upon quite a different issue from that which arises here, although s 4.13(18)(b) also fell to be considered.

[22] I am satisfied the appellant never intended to abandon the rights it had under the 1995 permit to have a sign upon the property, while acknowledging that mere intention, without more, is ordinarily insufficient. There are however, a number of other circumstances relevant to the question. The affidavit material filed on the appellant's behalf from Mr Parr, a director of ABsee, Mr Kim (a director of KT) and Mr Somerville (a development consultant who was KT's representative during part of the relevant period), and the documents in the agreed bundle (Exhibit 1) establish that:

(a) After KT became the owner of the land it entered into negotiations with ABsee;

(b) A dispute then arose between KT and the former tenant, Australian Posters and at least partly as a result of that dispute Logan Council refused to transfer the licence for the sign;

(c) Australian Posters originally agreed to vacate the premises by 30 September 2001 on the basis the footings for the sign would become the property of ABsee, which had entered into a lease with KT from 1 April 2001;

(d) A failure to reach agreement with Australian Posters resulted in its removing the sign and the supporting structure (but not the footings) on 10 October 2001;

(e) Discussions then took place between ABsee and Logan Council at which the latter, through its officer Mr Shaw, indicated the application to increase the height of the sign to 15 metres was a minor modification and could be dealt with on that basis;

(f) At some time in late 2001 the site was inspected by Mr Parr, another representative of ABsee and Mr Russell Smith representing DMR and, subsequently, DMR told ABsee that the proposed, raised sign "...does not meet ... criteria therefore Main Roads cannot support this proposal.";

(g) After some delay, Mr Somerville again wrote to DMR on 5 June 2002 suggesting DMR's opposition was unreasonable and, thereafter, he made representations to politicians, amongst others;

(h) during 2002 Mr Parr (and Mr Kirk) had meetings and telephone discussions with Mr Smith from DMR; and, I accept Mr Parr's evidence[13] that:

"... I had various telephone discussions with Mr Smith during early to mid-2002, mostly to find out how the Department was progressing in changing its initial views. I was left with the impression that the Department was quite slow in forming its views about whether it would ultimately change its mind to support the application.

15. I also recall (although not the exact date) that in a meeting with Mr Smith, at which I was present, Mr Kirk mentioned that even without the support of the Department, ABsee might 'just build the sign'. Mr Smith responded by saying that if the sign was re-erected without the necessary approvals, the Department could simply use its powers to remove the sign."

[23] For the reasons given earlier, DMR was not a concurrence agency and did not have, in that capacity, the power to refuse approval of the first application, or to threaten to remove the sign if it was re-erected in accordance with the 1995 permit. I am satisfied that the principal causes of the delay between KT's two applications were the mistaken belief, on all sides, that DMR was a concurrence agency and its active involvement in the matter which discouraged KT and ABsee from doing anything but attempt to persuade it to change its mind. The consequence is that the apparent cessation was caused by this unusual conjunction of factors.

[24] I accept that as a result of DMR's decision to erect noise barriers the hoarding constructed pursuant to the 1995 permit lost necessary visibility and exposure, and had to be raised. The footings then became inadequate. Further, the sign would not have been functional at its original height and for that reason KT applied to raise it. (It is mischievous for DMR to suggest that KT could simply have protected its interests by re-erecting the former, lower sign; the notion that a party should take impractical steps to protect use rights is specious.) This is an unusual case where the use has been frustrated by the independent actions of a third party, initially constructing a barrier and, then, claiming rights it did not have.

[25] The evidence set out earlier establishes an unequivocal intention on KT's part to continue the use, albeit in a form which it hoped would be modified by its subsequent applications to Council. The other relevant circumstances to the question arising under s 4.12(18)(b) involve an erroneous intrusion by an uninterested party which stymied KT's efforts to pursue its application, and effectively explain the delay of more than twelve months. In combination, those circumstances point inexorably to the conclusion the section, construed liberally, cannot be used against KT without injustice. Once that conclusion is reached it is reasonable to take the necessary additional step and find that, when all the circumstances are looked at objectively, the use did not cease.

[26] In the nature of this unusual case, however, that is not the end of the matter. DMR also relies upon s 43 of the Transport Infrastructure Act 1994 under which an application of the sort now brought by the appellant must be the subject of approval from the Chief Executive of the Department of Main Roads. In short, the Local Government must obtain the Chief Executive's written approval if it intends to approve the erection, alteration or operation of an advertising sign which would be visible from a motorway and "reasonably likely to create a traffic hazard for the motorway". As Mr Trotter pointed out, however, KT's application is not one which has attracted approval from Logan Council and, indeed, it specifically rejected the application on 20 February 2003 on grounds also related to its own local Planning policies[14]. Mr Cochrane suggested there was evidence[15] establishing the reasonable likelihood of creation of a traffic hazard but the evidence was diffuse, and unclear and I am not persuaded it should defeat the application. For present purposes, then, the section is irrelevant.

[27] I am satisfied the preliminary point raised by the appellant should be determined in its favour and will adjourn the matter to permit the parties to settle an appropriate order.

[7] City of Parramatta v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1, per Gibbs J at 25; Woollahra Municipal Council v Banool Developments Ltd [1973] HCA 65; (1973) 129 CLR 138 per Mason J at 144

[9] Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113

[10] Earle Cameron Constructions Pty Ltd v Parramatta City Council (1981) 46 LGRA 130

[11] Rosenblum v Brisbane City Council [1957] HCA 98; (1957) 98 CLR 35

[12] McDonald v Douglas Shire Council [2003] QCA 203; (2003) 126 LGERA 96

[13] Affidavit Bruce Roy Parr filed by leave 16 February 2004