McDonald v Douglas Shire Council [2003] QCA 203

SUPREME COURT OF QUEENSLAND

CITATION: McDonald v Douglas Shire Council [2003] QCA 203

PARTIES: JOHN JOSEPH PETER MCDONALD / (applicant/appellant) / v / DOUGLAS SHIRE COUNCIL / (respondent)

FILE NO/S: Appeal No 4999 of 2002 / P & E Application No 1088 of 2001

DIVISION: Court of Appeal

PROCEEDING: Planning and Environment Appeal

ORIGINATING COURT: Planning and Environment Court at Brisbane

DELIVERED ON: 23 May 2003

DELIVERED AT: Brisbane

HEARING DATE: 12 May 2003

JUDGES: de Jersey CJ, Williams JA and Wilson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1.That the appeal be dismissed;2.That the parties furnish, within seven days, submissions as to the disposition of the costs of the appeal

CATCHWORDS: ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – CONSENTS, APPROVALS AND PERMITS – LAPSE – SUBSTANTIAL COMMENCEMENT – where council issued planning consent for recreational resort and convention centre – where limited works constructed on site – where consent lapsed if the use the subject of the consent did not commence within four years – whether the use the subject of the consent had commenced / Local Government (Planning and Environment) Act 1990 (Qld), s 1.4, s 4.13(12), s 4.13(16), s 4.13(18), 4.14(3) / Aqua Blue (Noosa) Pty Ltd v Noosa Shire Council [2002] QPEC 42, P & E Application No 5866 of 2001, 24 July 2002; [2003] QPELR 82, overruled / Day v Pinglen Pty Ltd & Ors (1981) 148 CLR 289, considered / Drummoyne Municipal Council v Lebnan & Ors (1974) 131 CLR 350, considered / Drummoyne Municipal Council v Page [1973] 2 NSWLR 566, considered / ex parte Dackfield Pty Ltd [1983] 1 Qd R 10, considered / United Dominions Corporation Ltd v Woollahra Municipal Council [1973] 1 NSWLR 616, considered

COUNSEL: P Lyons QC, with W Cochrane, for the appellant / D Gore QC, with M Rackemann, for the respondent

SOLICITORS: MacDonnells for the appellant / Williams Graham & Carman for the respondent

de JERSEY CJ: This appeal is brought, by leave, against an order of the Planning and Environment Court refusing to declare that a town planning consent granted by the respondent local authority was current. The respondent has filed a notice contending that the decision of the court should be affirmed but on grounds different from those advanced by the learned primary Judge.

The planning consent authorized a recreational resort and convention centre on land at the corner of Cape Tribulation Road and Turpentine Road in the Shire of Douglas.

It was common ground that whether or not the consent was current depended on the construction of s 4.13(18) of the Local Government (Planning and Environment) Act 1990, which provides:

"A permit issued pursuant to subsection (12) lapses where –

the use of land or the use or erection of a building or other structure on land, the subject of the approval in respect of which the permit was issued, has not been commenced within 4 years of the date of issue of the permit or such extended period or periods as the local government upon application being made to it therefore approves; or

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

The subject consent was "a permit issued pursuant to sub-s (12)". The period of four years applicable here expired on 15 April 1995.

The learned Judge who constituted the Planning and Environment Court took the view that "the use of land…the subject of the approval" was "the use of the land as a resort, and the construction of buildings thereon for that purpose".

It will be seen from s 4.13(18) that to avoid the lapsing of a consent, within four years of its issue (or any extended period – not applicable here), at least one of a number of things must have been "commenced": the use of the land the subject of the approval, the use of (an existing) building or other structure the subject of the approval, or the erection of a building the subject of the approval.

In my view the words in (a), "the subject of the approval", qualify the preceding words "the use of land", "the use…of a building or other structure on land", and "the…erection of a building or other structure on land". The words are not meant simply to identify the "land".

Ordinarily read, the provision appears to focus on "the subject of the approval". Having identified that, one asks was that "commenced" within four years of the issue of the consent. If not, the consent has lapsed.

Then para (b) contemplates that if "a use…established pursuant to the [consent]" ceases for at least 12 months, the consent likewise lapses.

In this case, the use of the land as a resort had not commenced within the requisite four years. However certain work had been done within that period, albeit not with a view to its completion under the requisite building permit, but simply in order to prevent the lapsing of the consent.

The learned Judge summarized that work as follows:

"A building permit to carry out work in accordance with detailed plans was issued by the respondent on or about 19 May 1993. Various works have been constructed on the site. These comprise a maintenance shed which has been constructed on a concrete slab on the site, a generator shed, two tank stands and three floor slabs of an area of approximately 6m x 6m2 with PVC drainage cast into them. In addition a sewerage treatment plant has been placed on the site, an artesian bore has been installed and sub-grade and gravel to form a wet weather access road has been placed on site. Roof trusses and wall frames sufficient to complete at least two cabins have been constructed on site. The maintenance shed is in good condition and is consistent with relevant drawings. The three slabs poured on the site coincide with locations shown on Building Permit Plan 11 and are generally in accordance with the Town Planning Consent. There is no evidence of work being carried on on the site since June, 1994, and the site has become overgrown."

He also inferred that "excavation, if only to a minor extent, must have occurred", in 1994.

Relying on a number of cases, the learned Judge rejected a contention that any commencement of work was a sham, and therefore to be ignored, because motivated only by an intent to avoid the lapsing of the consent. Those cases were United Dominions Corporation Ltd v Woollahra Municipal Council [1973] 1 NSWLR 616, 622-3, Drummoyne Municipal Council v Page [1973] 2 NSWLR 566, 572, Drummoyne Municipal Council v Lebnan & Ors (1974) 131 CLR 350, 360-1, ex parte Dackfield Pty Ltd [1983] 1 Qd R 10, 12-13 and Day v Pinglen Pty Ltd & Ors (1981) 148 CLR 289, 297-9.

Even though the Judge identified the use, which was the subject of the approval, as the use of the land as a resort – a use which plainly had not commenced, he held that "use" of the land had commenced, having regard to the definition of "use" in s 1.4 of the Planning and Environment Act:

""use" in relation to land, includes 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."

Because of the excavation which he inferred had likely occurred, he concluded the "use" of the land had commenced within the requisite period. Reverting to s 4.13(18), the Judge also held that the "erection of a building" had commenced within that period of four years. Accordingly, in His Honour's view, the condition prescribed by para (a) of s 4.13(18) to prevent lapsing, had been fulfilled.

As to para (b) of s 4.13(18), His Honour concluded that "a use…[was]…established pursuant to the permit" because of the excavation which had led him to find the use commenced under para (a). He could not, for purposes of para (b), rely on the erection of buildings, because the definition of "use" under s 1.4, on which he relied for (a), excluded building work. The Judge rejected a submission that para (b) would in this case assume that use as a resort had become the established use, in the sense that the resort was "up and running." His Honour held however, that because any development work had ceased for well over 12 months, para (b) meant that the consent had lapsed. He accordingly refused the declaration sought.

Before this court, the appellant submitted it was enough to prevent the lapsing of the consent under para (a), if any one of either the use of the land, or the erection of a building, or the use of a building, had commenced within the prescribed period. The appellant challenged His Honour's finding that because of the excavation, "use" (as defined by s 1.4) had commenced: there was, the appellant submitted, no evidence of excavation save possibly as necessary for the erection of buildings, and, the erection of buildings being separately provided for in s 4.13(18), that should be regarded as embracing any related excavation. It was the commencement of the erection of buildings which in the appellant's submission met the requirement of para (a). As to (b), the appellant submitted the "use" there referred to was the same "use" as mentioned in (a). Since no "use" of land in this case (as distinct from erection of buildings) arose under (a), none arose under (b). In the appellant's submission, therefore, (a) applied but (b) did not, with the consequence that the consent subsists.

On the other hand, the respondent primarily submitted, as to (a), that "what must be commenced to prevent lapsing will depend upon what has been approved". If an approval related to the erection of buildings and their use, for example, then they must be in use to avoid lapsing: only then would the subject matter of the approval have been "commenced". As to (b), the "use…established pursuant to the permit" must, it was submitted, be one and same "use" required under (a) to be commenced within four years to prevent lapsing.

The respondent made additional submissions, as to whether any commencement was a sham, as to the court's discretion to make a declaration, and as to the relevance of off site activities, but it is not necessary to address those submissions.

In my view, s 4.13(18) is intended to ensure that the goal envisaged by a consent is fulfilled within four years, and thereafter maintained to the extent that any cessation not persist for as long as 12 months.

Paragraph (a) invites the reader to identify "the subject of the approval". As the learned Judge held, that was in this case use of the land as a resort. The respondent's confirmation of the consent, by letter of 30 November 1990, describes the appellant's application as "for the development of a resort development", and the subsequent building permit application stated, as the "intended use", "recreational resort and convention centre". In ordinary parlance, that use obviously was not "commenced" within the prescribed period. I do not consider that "the erection of a building" should be regarded as the subject of the approval. Any erection of buildings was simply a step towards fulfilment of the purpose of the approval, which was use of the land as a resort. That use was the real "subject of the approval", not the erection of buildings taken alone.

In relying on excavation for a conclusion that the use had commenced, His Honour had recourse to the definition of "use" in s 1.4. Accepting that excavation occurred, there was "use" within s 1.4. But s 4.13(18) requires the commencement of "use of land…[that use being] the subject of the approval". It obliges one to look at the approval, identify the particular use envisaged by that approval, and ask has that particular use commenced. Recourse to the general definition of "use" under s 1.4 is therefore in my view unhelpful to a consideration of the application of s 4.13(18).

In my view the use of land as a resort, being the subject of the approval, not having commenced within the prescribed period, the consent must be taken to have lapsed.

In his submissions for the appellant, Mr Lyons QC emphasized the distinctness of the three concepts referred to in s 4.13(18): use of land, use of a building, erection of a building. They happen to be the three types of permit or approval or consent which may arise. They are, unsurprisingly, mentioned elsewhere in the legislation (for example, s 4.13(16)) and in the case law (for example, Brisbane City Council v Boral Resources (Qld) Pty Ltd (1998) 99 LGERA 84). They are mentioned in s 4.13(18) simply in order to identify the range of approvals which may apply. It is necessary to identify the character of the approval in question: should it be regarded as an approval for the use of land, or an approval for the use of a building, or an approval for the erection of a building, or perhaps for one or more? In this case, the true character of the approval was for the use of land in a particular way, and to the extent that the approval envisaged the construction of buildings, that was to facilitate the fulfilment of the broader goal.

We were referred also to the revocation provision in s 4.14(3):

"(3)The local government may initiate revocation procedures in accordance with subsections (4) to (7) where –

in the case where the permit involves the erection of a building or other structure or the carrying out of works – commencement of erection or works has not been made in accordance with that permit; or

in any other case – the rights conferred by that permit are not exercised;

after a period of 2 years following the date on which the permit was issued."

That provision does not sit uncomfortably with that construction of s 4.13(18). Section 4.13(18)(a) required commencement of the approved use of land, or commencement of an erection or use of a building should that be the subject of the approval, within four years of consent. In a complementary way, s 4.14(3) gives a local authority power, at an earlier stage (that is, after only two years), to intervene to set about the revocation of a permit, where the commencement of the erection, or the exercise of rights, has not occurred.

I note in passing that the construction of s 4.13(18) which I would adopt is apparently not consistent with the approach taken in the Planning and Environment Court in Aqua Blue (Noosa) Pty Ltd v Noosa Shire Council [2003] QPELR 82, with which I would therefore respectfully disagree.

Because in my view the consent lapsed by operation of s 4.13(18)(a), it is not strictly necessary to pass to (b). But I will record my view, which accords with the submissions made to us, that the "use" referred to in (b) should be regarded as the same use as referred to in (a).

In the result, the learned Judge was in my view correct to refuse the declaration sought, although I would respectfully assign different reasons for the correctness of that course.

I would order:

1.that the appeal be dismissed;

2.that the parties furnish, within seven days, submissions as to the disposition of the costs of the appeal.

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of the Chief Justice and I will not unnecessarily repeat matters contained therein.

The learned judge who constituted the Planning and Environment Court resolved the issue between the parties by concluding that the permit in question lapsed pursuant to s 4.13(18)(b) of the Local Government (Planning & Environment) Act 1990. The appellant was given leave to appeal against that decision, and at the same time the respondent was given leave to contend on the appeal that it should have been found that the permit lapsed pursuant to s 4.13(18)(a). Consequent upon that leave being given on 27 September 2002 the appellant filed a Notice of Appeal and the respondent a Notice of Contention.

The permit in question was issued consequent on proceedings determined by consent in the Planning and Environment Court on 19 November 1990. The permit was in effect a Town Planning Consent for a Resort Development on land within the respondent’s shire. A letter of 30 November 1990 confirmed the granting of the consent. That Town Planning Consent remained in force on the commencement of the Local Government (Planning & Environment) Act 1990; but it was thereafter subject to the provisions of s 4.13(18) thereof.

On 19 May 1993 a permit was issued by the respondent approving building work on the subject land. During 1994 some work was carried out on the site, particulars of which are set out in the reasons for judgment of the Chief Justice.

No work has been carried out on the land since 1994 and it has never been used as a resort. The four year period provided for by s 4.13(18)(a) expired on 15 April 1995.

The submissions on the hearing of the appeal essentially require the court to construe s 4.13(18). That, of course, must be done by reading that section in the context in which it is found in the Act.

I agree with the Chief Justice that the words in (a), “the subject of the approval”, must qualify each of the three activities earlier referred to, namely “the use of land”, “the use . . . of a building or other structure on the land”, and “the . . . erection of a building or other structure on land”. It follows that the critical requirement of the subsection is that there must be commencement within four years of a use or the erection of a structure meeting the terms of the approval.

The submission on behalf of the appellant is that mere commencement of the erection of a structure which might ultimately be used to implement the approval is sufficient. The contention is not without some force, but when the section is considered in the context of the legislative purpose it is clear to my mind that something more than mere commencement of the erection of a building is required for the erection to be classed as “the subject of the approval”. As the Chief Justice has said, use of the land as a resort was the real subject of the approval; it cannot be said that the mere erection of one non-residential building in isolation was “the subject of the approval” in this case.

The purpose of s 4.13(18)(a) is clearly to ensure that the use, the subject of the approval, has been established within four years of the date of issue of the permit or within an extension of time lawfully granted.

The very limited work carried out in 1994 does not, in my view, satisfy that test.

It therefore follows that the respondent must succeed on its Notice of Contention.

There was broad agreement on the hearing of the appeal that the “use” referred to in (b) was the same as the use referred to in (a). That means that the “use . . . established pursuant to the permit” in the present context must mean use as a resort. On that construction (b) can only apply where (in this case) the resort had reached the stage of being “up and running”. If thereafter the use ceased for a period of at least 12 months the permit authorising such use would lapse.

It follows that the learned judge at first instance was wrong in deciding the matter by applying s 4.13(18)(b) in the way in which he did.

I agree with the reasoning of the Chief Justice and with the orders he has proposed.

WILSON J: I agree with the reasons for judgment of the Chief Justice and with the orders he proposes.