Netstar Pty Ltd v. The Caloundra City Council [2003] QSC 298 (12 September 2003)

[1] The applicant is the registered proprietor of land ("the land") situated on

Ridgewood Road, Little Mountain at Caloundra. It has been beneficially owned by the holders of units in the Palmer Motel Unit Trust since June 1983. There have been a number of trustees over time. The applicant is the present trustee and registered proprietor.

[2] On 17 November 1984 an Order in Council was published which notified the approval of the Governor in Council to the land being used for the purpose of the erection and use for residential purposes of no more than 60 townhouses. The Order in Council was made pursuant to s. 33(6B) of the Local Government Act 1936-1985 ("the LGA") which provided that:

`The Governor in Council on the recommendation of the Minister may at any time and from time to time approve the use of land for any purpose or the erection or use for any purpose of a building or other structure on land where such use, or erection or use is regulated and controlled by a by-law made by the local authority ... notwithstanding the provisions of that by-law.'

[3] On 30 August 1984 an agreement under seal was made between the Council of the Shire of Landsborough (which was the predecessor to the respondent to these proceedings) and the then trustee and (presumably) registered proprietor of the land. The agreement recited that the Minister for Local Government had recommended to the Governor in Council that the trustee be granted approval for the erection and use of no more than 60 townhouses on the land and that the Council and trustee had reached agreement on the development conditions to be imposed for the development. The agreement then provided that the conditions set forth in the schedule should be the conditions imposed by the Council for the development of the land.

[4] Despite the passage of almost two decades since the gazettal of the Order in Council the townhouses have not been built. Some preliminary earthworks were undertaken comparatively recently but they did not progress very far. The parties disagree about the applicant's right to develop the land in accordance with the Order in Council. More particularly the respondent asserts that the Order in Council ceased to have any legal effect many years ago and that the applicant, if it wishes to develop the land, will have to apply afresh for development approval. It is unlikely to be given approval for such a large development. Work stopped pending the resolution of the dispute between the parties.

[5] By an originating application dated 22 April 2003 the applicant sought a declaration against the respondent:

`1. ... That an agreement made on 30 August 1984 between the respondent ... and the (then trustee) is valid and subsisting as between the applicant and the respondent.

2. A declaration that ... the agreement allows the applicant an option to develop the project either at once or in stages ...'

[6] On 24 June 2003 the respondent commenced proceedings in the Planning and Environment Court for declarations against the applicant:

`1. ... An Order in Council ... published on 17 November 1984 ... is of no continuing force and effect.

2. ... The land may not be lawfully used for the purpose referred to in the 1984 Order in Council.

3. ... That the purported approval of building works on the land ... was ultra vires.'

[7] The application set out the grounds relied on for the declarations. In summary they are that:

(a) A town planning scheme for what was then the Caloundra Shire was notified by an Order in Council gazetted on 19 December 1987.

(b) By operation of s. 33(3)(f) of the LGA that planning scheme was given legal force and effect and regulated town planning and development within the Shire.

(c) Under the 1987 planning scheme the land was zoned rural residential and multiple dwellings were prohibited in that zone. The purposes for which the 1984 Order in Council provided were prohibited.

(d) Accordingly the 1984 Order in Council was impliedly repealed by the later Order in Council of 19 December 1987 by which time the owner of the land had not commenced to develop it in accordance with the 1984 Order in Council.

(e) In August 1996 a new town planning scheme for Caloundra City was gazetted under which the erection of 60 townhouses on the land was prohibited.

[8] Alternatively the respondent pleads that the approval given by the 1984 Order in Council lapsed on 15 April 1995 because four years earlier, on 15 April 1991, the Local Government (Planning and Environment) Act 1990 ("the LGPE Act") commenced and s. 33 of the LGA was repealed. Pursuant to s. 8.10(8B) of the LGPE Act the approval given by the 1984 Order in Council lapsed by virtue of

s. 14.13(18) four years after the LGPE Act commenced.

[9] In the further alternative the respondent pleads that on 30 March 1998 the LGPE Act was repealed and replaced by the Integrated Planning Act 1997 (`IPA') and that the approval given by the 1984 Order in Council did not survive the commencement of that Act because:

(a) The only approvals which are recognised as `continuing approvals under IPA are those identified by s. 6.1.23(1).

(b) The approval given by the 1984 Order in Council is not one of those.

[10] Neither the applicant's proceeding in this court nor the respondent's proceeding in the Planning and Environment Court have progressed. Instead the applicant commenced a separate application (6622 of 2003) on 25 July 2003 seeking a declaration that the Planning and Environment Court does not have jurisdiction to make the declaration sought by the respondent. By amendments made at the hearing the applicant seeks also an order that the respondent's application in the Planning and Environment Court be stayed until its application in this court is determined. Alternatively the applicant seeks an injunction restraining the respondent from proceeding with its application in the Planning and Environment Court until the determination of its application.

[11] It is clear that the issues committed to the determination of both courts is essentially the same. The respondent was disposed to argue that the subject matter of the two proceedings were different on the basis that the applicant is seeking declarations as to the status and enforceability of the agreement of 30 August 1984 when what is in issue in its proceedings in the Planning and Environment Court is the status and effect of the 1984 Order in Council. The distinction is superficial. The agreement concerns only the conditions upon which development may proceed pursuant to the Order in Council. If the Order in Council had never been gazetted or if, as the respondent will argue, it was repealed, the agreement would not have any legal effect, whether by the operation of frustration or the failure of a condition precedent to the obligations contained in the agreement, or by some other doctrine of the law of contract, does not matter. The point that will have to be determined in the applicant's proceedings is whether the Order in Council confers on the applicant a right to develop the land. That same issue is the subject of the respondent's proceedings in the Planning and Environment Court.

[12] It is clearly unsatisfactory that proceedings to determine the same issue between the same parties have been commenced in two courts. The matter must be regularised somehow to avoid duplication and vexation. The respondent's answer is a submission that the Planning and Environment Court has exclusive jurisdiction to determine the point. If this submission is right the problem will solve itself. The applicant's proceedings in this court could not proceed.

[13] Section 4.1.2 of the IPA provides that the Planning and Environment Court has the jurisdiction given to it under any Act and, by subsection 2, that the jurisdiction given to the court under `this Act' i.e. the IPA, is exclusive. There is an exception which, whatever it means, is irrelevant for present purposes. Section 4.1.21 of the IPA provides:

`(1) Any person may bring proceedings in the court for a declaration about -

(a) A matter done, to be done or that should have been done under this Act; and

(b) The construction of this Act and planning instruments under this Act; and

(e) If the application is an application that requires an acknowledgment notice to be given - of failure ... to give ... notice.

(5) The court has jurisdiction to hear and decide a proceeding for a declaration about a matter mentioned in subsection 1.

[14] Section 4.1.22 empowers the court to make orders, in addition to declarations, concerning the subject matters identified in s. 4.1.21.

[15] On the face of things s. 4.1.2 determines the argument in favour of the respondent, at least if the subject matter of the suit between applicant and respondent fits within any of the categories of matters which may be the subject of declarations by the Planning and Environment Court. The applicant submits this is not so because of the terms of subsection 5. This is said to make it clear that the jurisdiction conferred on the Planning and Environment Court by s. 4.1.21 is different to jurisdiction conferred by other sections found in the IPA none of which contain a provision similar to subsection 5. Then the applicant draws attention to the terms of the explanatory notes to the Integrated Planning Bill in which the draughtsman expressed what he hoped he had achieved in s. 4.1.21. The memorandum reads:

`Clause 4.1.21 describes the power of the court to hear and decide declaratory matters under the Bill ... the court's jurisdiction under this clause does not fetter the jurisdiction of other courts to make declarations on the same matters where matters have been brought in that jurisdiction.'

[16] From this the applicant submits that the declaratory jurisdiction of the Planning and Environment Court was not meant to be exclusive and that subsection 5 should be read to produce the result that that jurisdiction is not exclusive.

[17] It may be accepted that there is a presumption of statutory construction that the jurisdiction of superior courts will not be removed except by clear words. See

eg Statutory Interpretation in Australia 3rd ed. Pearce and Geddes para. 5.17 and Johnson v. Director General of Social Welfare (Vic) (1976) ALJR 562. See also the discussion and authorities collected by White J in Makucha v. Albert Shire Council (1993) 81 LGERA 243 at 246-247. The presumption cannot, of course, stand in the face of clear statutory expression.

[18] It may be said that s. 4.1.21(5) appears to be unnecessary. Subsection 1 allows a person to bring proceedings in the Planning and Environment Court for declarations about specified subject matters. By the clearest implication that confers jurisdiction upon the court to hear and determine proceedings for declarations about the listed subject matters. Subsection 5 appears to do no more than make express what was clearly implicit. The terms of the subsection are, however, clear. It says in plain language that the Planning and Environment Court has jurisdiction to hear and decide applications for declarations of the kind identified in subsection 1. The jurisdiction is conferred by the IPA so it is within the operation of s. 4.1.2. It is only because the subsection is so unnecessary that the submission is made that it must have been intended to have some effect other than that which its words indicate.

[19] I accept that the inclusion of subsection 5 in s. 4.1.21 is puzzling. It is unnecessary. This, however, is not enough to give it a meaning which its words plainly do not bear. Many aspects of legislation enacted in the last decade or so may justly be regarded as puzzling. That feature alone is not enough to depart from the ordinary canons of statutory construction.

[20] The use of extrinsic material to aid statutory interpretation has limitations. Section 14B of the Acts Interpretation Act 1954 provides that:

`(1) Subject to subsection 2, in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation -

(a) If the provision is ambiguous or obscure - to provide an interpretation of it; or

(b) If the ordinary meaning of the provision leads to result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result; or

(c) In any other case - to confirm the interpretation conveyed by the ordinary meaning of the provision.'

[21] The extrinsic materials may therefore be used to arrive at a meaning of a section different to that indicated by the words themselves only where the provision is ambiguous or obscure, or where the ordinary meaning of the words would lead to an absurd or unreasonable result. The terms of subsection 5 do not satisfy either

pre-condition. Its meaning is not ambiguous or obscure. It says in plain terms that the Planning and Environment Court has jurisdiction to determine applications for declarations about the subject matters specified in subsection 1. The result which would follow from giving the subsection its ordinary meaning is neither absurd nor unreasonable. The Planning and Environment Court is a specialised tribunal, the judges of which have great experience in the questions of fact and law which commonly arise for determination in that court. Subsection 4.1.2 expressly makes jurisdiction conferred on the court by the IPA exclusive of the jurisdiction of all other courts. The sorts of disputes which are identified in s. 4.1.21(1) are topics about which the judges of the Planning and Environment Court would have particular expertise. It is not absurd nor unreasonable that disputes about those matters should be resolved in that court and no other.

[22] It follows that I am not at liberty to consult the terms of the explanatory notes as an aid in construing subsection 5. Even if I were I would find it of little assistance. It appears to conflict with the effect of subsection 5. It is impossible to know whether the draughtsman of the note did not understand what in fact had been done in the drafting of s. 4.1.21(5) and wrongly described its effect in the note, or whether the section as enacted does not give effect to what the draughtsman thought he was doing. It does not matter. The task of the court is to construe the words that actually appear in a statute. It is not to divine what the draughtsman thought he was doing.

[23] It is worth remembering what Gibbs CJ said in Cooper Brooks (Wooloongong) Pty Ltd v. Federal Commissioner of Taxation (1981) 147 CLR 297 at 304:

`It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say.'

[24] It is also apposite to recall what was said in R. v. Attwell ex parte Jullie [2002]

2 Qd R 367 at 373, a judgment in which all members of the Court of Appeal concurred:

`It is only by doing great violence to the phrase, by ignoring the words altogether, or giving them a meaning directly contrary to what they say, that the regulation will operate as the applicant contends it should ... the court is not entitled to rewrite legislation to such a radical extent ... it is, as Lord Mersey pointed out in Thompson v. Goold & Co [1910] AC 409 at 420 a `strong thing' to add words to a section. It is an even stronger thing to give to words, the meaning of which is plain, a meaning which they do not have and one which is hostile to their plain meaning.'

[25] The judicial correction of a statute is exceptional. There is no doubt the power exists but it is to be exercised only when the occasion demands. According to Maxwell on the Interpretation of Statutes 12th ed. p.228:

`Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done ... by giving an unusual meaning to particular words, or by rejecting them altogether on the ground that ... the modifications made are mere corrections of careless language and rarely give the true meaning.'

There are examples of this process with respect to the Penalties and Sentences Act 1992. In R. v. Blake [1994] QCA 77; [1995] 2 Qd R 167 s. 158 and s. 161 were made intelligible by notionally omitting a phrase from each, and in R v. Robertson ex parte

Attorney-General [1998] QCA 107; [1999] 1 Qd R 670 at 675 the court held that the phrase `term of imprisonment' in s. 157(2) should not be given its defined meaning.

[26] There is no warrant for such an approach to statutory construction where the meaning of the provision in question is clear and where that meaning does not produce some inconvenient or unreasonable result and is not obviously at variance with the legislative intention gathered from a reading of the statute as a whole.

[27] It cannot be said that s. 4.1.21(5) needs any alteration to become comprehensible or to have an operation which appears to be consonant with the legislative intention that the Planning and Environment Court have exclusive jurisdiction as to certain subject matters. The applicant's submissions would require adding to the subsection the words `not exclusive' to qualify the word `jurisdiction'.

[28] The LGPE Act contained provisions which, expressed differently to the relevant provisions of the IPA, conferred exclusive jurisdiction on the Planning and Environment Court to make declarations in respect of certain identified matters. In Cameron v. Noosa Shire Council [1998] 1 Qd R 124 the Court of Appeal held that if an issue sought to be determined by a declaration was within the subject matter of the section conferring exclusive jurisdiction then the jurisdiction of the

Supreme Court to make a declaration on that issue had been ousted. It would seem to follow from CSR Ltd v. Pine Rivers Shire Council [1994] 1 Qd R 234 that before the Planning and Environment Court has exclusive jurisdiction the subject matter of the suit for a declaration must answer the exact description of the matters about which the court is given such jurisdiction.

[29] The consequence is that if a declaration is sought to resolve an issue which may be seen to fall, fairly and squarely, within the description of subject matter set out in

s. 4.1.21 of the IPA the Planning and Environment Court has exclusive jurisdiction to make the declaration.

[30] The subject matter of the declaration sought by the applicant in this court and by the respondent in the Planning and Environment Court is the lawfulness of the development which the applicant proposes for the land. It is common ground that the applicant cannot develop the land as it wishes unless the 1984 Order in Council remains in force. The status of the Order in Council determines whether the applicant can lawfully build the 60 townhouses and use the land for that purpose. It seems impossible to regard the dispute as one other than for a declaration about `the lawfulness of land use or development'. The Planning and Environment Court has exclusive jurisdiction to decide that question.

[31] It follows that the application should be dismissed with costs to be assessed on the standard basis. Its substantive application cannot proceed. Counsel for the respondent did apply orally for an order that that proceeding be stayed or struck out but I do not think it right to deal with the matter on so an informal a basis. The problem may well be addressed by the applicant discontinuing its application. If it does not the respondent may bring such application as it thinks fit.