Ramsgrove P/L v Beaudesert SC & Ors [2005] QCA 434

SUPREME COURT OF QUEENSLAND

CITATION: Ramsgrove P/L v Beaudesert SC & Ors [2005] QCA 434

PARTIES: RAMSGROVE PTY LTD ACN 065 386 745 (appellant/applicant/appellant) v BEAUDESERT SHIRE COUNCIL (respondent/first respondent) LAWRENCE HENRY JOHN KLINGE and PENNY MARIE KLINGE (first co-respondent/second respondent) LACHLAN REIT LIMITED ACN 081 102 534 (second co-respondent/third respondent) THE STATE OF QUEENSLAND (third co-respondent/fourth respondent)

FILE NO/S: Appeal No 8948 of 2005 / P & E Appeal No 2634 of 2003

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Integrated Planning Act

ORIGINATING COURT: Planning and Environment Court at Brisbane

DELIVERED ON: 25 November 2005

DELIVERED AT: Brisbane

HEARING DATE: 9 November 2005

JUDGES: McMurdo P, Williams and Keane JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Application for leave to appeal granted 2. Appeal dismissed 3. Appellant to pay second and third respondents' costs of the application and appeal to be assessed on the standard basis

CATCHWORDS: ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - NOTICE AND ADVERTISING - NOTICE - MANDATORY REQUIREMENTS - where the appellant had sought development approval from the first respondent to use certain land for the purposes of a shopping complex - where the eastern boundary of the relevant land ran along one road - where the western and northern boundaries came together at a corner point next to another road ("the north-western boundary") - where a sign giving notice of the proposed development was placed next to the road running along the eastern boundary but no sign was placed near the road next to the north-western boundary - where it was contended that this amounted to a failure to comply with the requirement to place a notice on each "road frontage" for the land contained in s 11 Integrated Planning Regulation 1998 (Qld) - whether the appellant was only required to place notices where there was some road frontage that could be measured - whether the north-western boundary could be said to be a boundary between the land and a road "adjoining the land" - whether the appellant had complied with the notice requirements contained in s 11 Integrated Planning Regulation 1998 (Qld) / ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - POWERS ON APPEAL - OTHER POWERS - where the first respondent had exercised its power as assessment manager under s 3.4.8 Integrated Planning Act 1997 (Qld) to waive the appellant's noncompliance with the requirement to give notice of a proposed development - where the application was taken on appeal to the Planning and Environment Court ("P & E Court") - where the P & E Court refused to exercise its power under s 4.1.5A Integrated Planning Act 1997 (Qld) to excuse the appellant's noncompliance with the notice requirements - whether the decision by an assessment manager to waive noncompliance and proceed with the assessment process creates an issue estopped that binds the parties or the P & E Court on any appeal from the assessment manager's ultimate decision / Integrated Planning Act 1997 (Qld), s 3.4.1, s 3.4.4, s 3.4.8, s 4.1.5A, s 4.1.52, s 4.1.56 / Integrated Planning Regulation 1998 (Qld), s 11 (since renumbered as s 18) / Buckinghamshire County Council v Trigg [1963] 1 All ER 403, distinguished / Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, cited / Friends of Springbrook Alliance Inc v Gold Coast City Council [2003] QPEC 014; [2003] QPELR 515, doubted / Hare v Brisbane City Council (1978) 37 LGRA 23, distinguished / Mantle v Brisbane City Council (1981) 42 LGRA 29, distinguished / Marsh & Nass v North Sydney City Council [1996] NSWLEC 43; No 10930 of 1995, 29 February 1996, applied

COUNSEL: P J Lyons QC, with B D Job, for the applicant/appellant / N Andreatidis for the first respondent / M D Hinson SC for the second and third respondents / R Hutchings (sol) for the fourth respondent

SOLICITORS: Nicholsons for the applicant/appellant / Corrs Chambers Westgarth for the first respondent / Connor O'Meara for the second and third respondents / C W Lohe, Crown Solicitor for the fourth respondent

McMURDO P: I agree with Keane JA's reasons for granting the application for leave to appeal but dismissing the appeal with costs.

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and agree with all that is said therein, including the orders proposed. However, I would add some brief additional reasons for arriving at that conclusion.

Relevantly for present purposes a boundary is a series of points along the line between two parcels of land. Each point forms part of the boundary. A corner point, where two boundary lines intersect, must form part of the boundary. Logically the only conclusion open on the facts of the present case is that the corner point in question fronts Johanna Street. In consequence the subject site has a road frontage to Johanna Street.

I agree with the comments of Keane JA on the authorities which were referred to the Court on this question.

It follows that the learned judge at first instance was correct in concluding that there had been a failure on the part of the appellant to comply with the notice requirements provided for in s 3.4.4 of the Integrated Planning Act 1997 (Qld) ("the Act") and s 11 of the Integrated Planning Regulation 1998 (Qld).

I turn now to the second submission of counsel for the appellant, namely that the decision of the Beaudesert Shire Council invoking s 3.4.8 of the Act was binding unless and until that decision was formally challenged in the Planning and Environment Court.

In the circumstances some more detailed consideration of the decision made by the Beaudesert Shire Council must be undertaken.

Submitters raised non-compliance with the notice requirements. That resulted in the appellant obtaining legal advice and forwarding that advice to the Council. A report on the appellant's application was prepared for the Planning and Development Committee of the Beaudesert Shire Council. That Committee met to consider that report on 8 and 9 July 2003. A representative of the relevant submitter was present at material times during consideration by the Committee of that Report. The Report contains the following :

"Legal advice provided to Council found that the failure to place a notice on the Johanna Street frontage constituted non-compliance but further advised that Council may waive non-compliance if it is satisfied that the non-compliance does not adversely affect the awareness of the public of the existence or nature of the development application or restrict the opportunity of the public to make a properly made submission. Senior officers, after considering the matter, decided to exercise discretion in this matter and to continue to assess the application."

The clear inference is that the Report was prepared by "senior officers" after exercising the stated discretion.

The relevant Report concluded with "Director's Recommendation"; that was that the appellant's application be refused on the grounds set out. It then appears that there was a resolution by the Committee that the "Director's recommendation be adopted." That then became the decision of the Beaudesert Shire Council.

It was in that context that the learned judge at first instance said in his reasons that: "The full Council may be taken to have invoked s 3.4.8."

Clearly as part of the consideration of the appellant's application Council officers were prepared to waive non-compliance with the notice provisions in order to arrive at a decision on the merits of the application. But one cannot find in the material any discrete decision by the Council invoking s 3.4.8. In the circumstances it is difficult to see how the submitters could have lodged an appeal against such a decision. No formal decision to that effect was communicated to them; the only formal decision was that the application be refused on the stated grounds.

Whilst it is correct in a sense to say that the full Council adopted the approach of the "senior officers", how could a court, for example, consider whether irrelevant considerations had been taken into account in arriving at that decision or that relevant considerations had not been taken into account.

Once the appellant's application was refused it was of no concern to the submitters how, and on what basis, that decision was reached, unless there was an appeal against that refusal. Once there was an appeal against that refusal then the submitters were entitled to rely on any matter raised in their initial objections in order to uphold the decision of the Council. That is in fact what the submitters did in the present case.

I agree with Keane JA that the Planning and Environment Court judge was in no way bound by the decision of the Council to waive non-compliance with the notice provisions.

I agree with the orders proposed.

KEANE JA: In June 2002, Ramsgrove Pty Ltd ("Ramsgrove") sought development approval from the Beaudesert Shire Council ("the Council") for a supermarket-based shopping complex proposed for land at 49 - 87 Brisbane Street, Jimboomba ("the site"). The site is a fan-shaped block, 7.267 hectares in area, with its western and northern boundaries coming to a point at the edge of Johanna Street. Public notification of Ramsgrove's intentions in relation to the development of the site was given by a sign placed in the vicinity of the eastern, or Brisbane Street, boundary of the land. No sign was placed in the vicinity of the western, or Johanna Street, extremity of the site. Persons opposed to the development, including the second respondents, Mr and Mrs Klinge, objected that no sign had been placed at the Johanna Street end of the site. This they contended was contrary to s 3.4.4 of the Integrated Planning Act 1997 (Qld) ("the IPA") and s 11 of the Integrated Planning Regulation 1998 (Qld) ("the IP Regulation").

In April 2003, Ramsgrove was informed that it was likely that the Council would, pursuant to s 3.4.8 of the IPA, waive Ramsgrove's noncompliance with the public notice requirements of the IPA and the IP Regulation in relation to the absence of a sign at the Johanna Street extremity of Ramsgrove's land. The Council proceeded with its assessment of Ramsgrove's application but ultimately refused Ramsgrove's application on 15 July 2003, even though it was, at that time, disposed to waive Ramsgrove's noncompliance with the public notice requirements of the legislation. Ramsgrove appealed against that refusal to the Planning and Environment Court ("the P & E Court").

In the P & E Court, a number of preliminary issues were set down for separate determination in advance of a hearing of the merits of the appeal. The learned primary judge held that there had not been compliance with the provisions of the IPA relating to the giving of public notice of Ramsgrove's application because Ramsgrove had not placed a notice on the Johanna Street road frontage of its land.¹ His Honour also held that this noncompliance by the Council was such that he was not disposed to excuse it under s 4.1.5A(2) of the IPA.² The effect of his decision was that the noncompliance was not effectively excused, so far as his Honour was concerned, by the Council's waiver of the noncompliance under s 3.4.8 of the IPA.³ As a result of these conclusions, his Honour dismissed Ramsgrove's appeal.

Ramsgrove seeks leave to appeal from these determinations, and the consequent dismissal of Ramsgrove's appeal by the P & E Court, to this Court pursuant to s 4.1.56 of the IPA. Ramsgrove does not seek to appeal against the learned primary judge's refusal to excuse Ramsgrove's noncompliance with the public notice provisions of the IPA under s 4.1.5A of the Act. Ramsgrove seeks to contend, first, that it had, in truth, complied with the public notice requirements of the legislation, and, second, that the learned primary judge erred in failing to hold that the decision of the Council to waive any noncompliance precluded the P & E Court reaching the view that Ramsgrove had not complied with the public notice requirements of the legislation. It is convenient to turn directly to a consideration of the legal merits of Ramsgrove's position on these two issues.

The notification issue

Section 3.4.4(1)(b) of the IPA requires an applicant for a development approval to "place a notice on the land in the way prescribed under a regulation".

Section 11 of the IP Regulation provides relevantly as follows:⁴

This section prescribes, for section 3.4.4(1)(b) of the Act, requirements for the placing of a notice on land.

The notice must be -

(a)placed on, or within 1.5m of, the road frontage for the land; and

…

(c) positioned so that it is visible from the road; and

…

If the land has more than 1 road frontage, a notice must be placed on each road frontage for the land.

…

In this section -

road frontage, for land, means -

(a)the boundary between the land and any road adjoining the land; or

(b)if the only access to the land is across other land - the boundary between the other land and any road adjoining the other land at the point of access."

Ramsgrove's contention is that the effect of these provisions is that s 11(2) requires the placing of a notice on the land only if there is "some frontage that can be measured"⁵ between the land and the road, and that there is no requirement to place a notice at a corner point because it does not constitute such a frontage.

The learned primary judge rejected Ramsgrove's contention, holding that the boundary between the site and Johanna Street was a "road frontage" for the site.⁶

In my opinion, the learned primary judge's conclusion is supported, both by the text of s 11 of the IP Regulation, and by a consideration of the purpose of the notification requirements.

As a matter of ordinary language, the boundary between the site and the Johanna Street road reserve is properly described as the boundary between the site and a road "adjoining" the site. It was argued on behalf of Ramsgrove that the point at which the northern and western boundaries met at Johanna Street was not a boundary of the site because a boundary is necessarily a line and cannot be a point.⁷ This argument, in my respectful opinion, fails to accommodate the undeniable facts that on one side of "the point" is the road reserve and on the other side is the site. The point between the two is necessarily the boundary. Further, since boundary lines are no more than a series of points, it can be said here that the northern and western boundaries of the site come together at Johanna Street. It is distinctly odd to suggest that each boundary ceases to be a boundary at the point where it meets the other boundary.

As to whether the boundary is between the land and a road "adjoining the land", in Marsh & Nass v North Sydney City Council,⁸ Bignold J said:

"The Shorter Oxford Dictionary defines the word 'adjoin', in its relevant sense, as meaning 'to be or lie close, contiguous (to, on, with)' or 'to be contiguous to or in contact with'. It is evident then, that even at the level of correct English usage, there are two possible meanings of 'adjoining'; one denoting physical connectedness and the other denoting mere proximity to, another object. This has been recognised in the case law."

In the present case, the site is "contiguous to or in contact with" the Johanna Street road reserve. There is no land owned by a third party or any other obstacle, such as a watercourse, interposing itself between the land subject to the development application and the land set aside for the purposes of the road. It follows that, whichever of the definitions of the word "adjoining" referred to by Bignold J is applied, the site and the Johanna Street road reserve can be said to adjoin one another.

The purpose of the notification requirements in s 3.4.4(1)(b) of the IPA is discernible from s 3.4.1 of the IPA which provides that notification of an application serves the purpose of giving members of the community "the opportunity to make submissions, including objections, that must be taken into account before an application is decided". That purpose would not be well-served by adopting a view of the scope of the expression "road frontage" which excludes the point at which two boundaries meet a road. By way of example, in the present case the learned primary judge held that:

"Whether or not the point where the site's boundaries intersect at Johanna Street is a frontage, a sign could have been placed there which would have been highly visible to users of Johanna Street - in marked contrast to the sign placed in the Brisbane Street road reserve".⁹

To adopt the narrow view supported by Ramsgrove would be to read into the definition of "road frontage" language which the IP Regulation does not use, and would confine the opportunity for public notification of the proposal.

Further, to introduce the adjective "measurable" to qualify the word "boundary", would be to add a distinctly inconvenient level of uncertainty to the identification of a road frontage for the purposes of s 11 of the IP Regulation. These factors make it difficult to accept the construction urged by Ramsgrove on this Court. As Gibbs CJ said in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:¹⁰ "[I]f two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice."

Counsel for Ramsgrove sought to rely upon a number of authorities¹¹ none of which provides direct support for the interpretation which Ramsgrove propounds in relation to the interpretation of the actual language of s 11 of the IP Regulation. These cases, to which I shall refer in more detail, were concerned with the construction of different statutes.

The only case directly on point on which Ramsgrove relies is Friends of Springbrook Alliance Inc v Gold Coast City Council,¹² a decision of the P & E Court which does afford some support for Ramsgrove's interpretation of s 11 of the IP Regulation. The decision of Quirk DCJ in that case was largely determined by the consideration that it was impossible to comply with both subparagraphs (a) and (c) of s 11(2) of the IP Regulation. His Honour held that the requirement that a sign should be placed on or within 1.5 metres of any road frontage should yield to the requirement of visibility from the road. The present case does not give rise to any such tension between subparagraphs (a) and (c) of s 11(2) of the IP Regulation. As has been seen, it was perfectly possible to place the sign at the point of contact between the land and Johanna Street, where it would have been quite visible to the users of Johanna Street. Quirk DCJ went on, however, to remark that:

"Authority in this Court which has stood for some considerable time held that a corner point does not constitute a frontage (Hare v Brisbane City Council (1978) 37 LGRA 23, Mantle v Brisbane City Council (1981) QPLR 27)."¹³

The decisions to which Quirk DCJ referred in support of this remark were not concerned to construe the definition of "road frontage" in s 11 of the IP Regulation. Those cases were concerned with different language used in a different statutory context.

In Hare, the question for the court was whether a parcel of land could be said to be "abutting on" another parcel of land. The apparently obiter remark of the court that, where two parcels of land meet only at a corner point one cannot be said to be "abutting on" the other, is of little assistance in determining the proper construction of s 11 of the IP Regulation.

In Mantle, the word "abuts" was used in the context of an ordinance which required that a lot being created by a subdivision have "practicable means of entry for persons and motor vehicles from constructed road to an allotment which abuts the road". In that context, the word "abuts" was held to envisage contact between the allotment and the road over a measurable distance. One may say that, in the context of a requirement for the provision of physical access for persons or motor vehicles from a road to an allotment abutting it, a reference to an abutment could only be understood as referring to an abutment over a distance apt to afford such access. Such reasoning is not applicable in the present case because s 11(7)(a) of the IP Regulation, in contrast with s 11(7)(b), operates whether or not access to the land is available from the road.

The legislation at issue in Buckinghamshire County Council v Trigg,¹⁴ to which reference was made in Mantle, affords another instructive contrast with the legislation at issue in this case. Trigg's Case was concerned with legislation which provided for the apportionment of the cost of street works carried out by the local authority for the benefit of land which fronted the street which had been improved. Not surprisingly, in such a context the words "fronting", "adjoining" and "abutting" were held, in this context, to refer only to those lands having a measurable frontage to the street. This was the context in which Lord Parker CJ said:¹⁵

"I think that it is beyond doubt that the word 'adjoins' or, indeed, the words 'fronts' or 'abuts', envisage actual contact between part of the premises and the street, not only contact but contact of the sort which will produce some frontage which can be measured."

Only a frontage which could be measured could provide a basis on which the apportionment of costs contemplated by the legislation could be effected. In the present case, the legislation is concerned with the giving of notice to persons who are passing by the land on a road so as to enable those disposed to object to a proposed development to do so.

In my respectful opinion, the learned primary judge was correct to decline to apply the comments of Quirk DCJ in Friends of Springbrook to the determination of this issue.

The Council's decision to waive noncompliance

Section 3.4.8 of the IPA provides relevantly:

"Despite section 3.4.7, the assessment manager may assess and decide an application even if some of the requirements of this division have not been complied with, if the assessment manager is satisfied that any noncompliance has not -

adversely affected the awareness of the public of the existence and nature of the application; or

restricted the opportunity of the public to make properly made submissions."

This issue as to the effect of s 3.4.8, and its relationship to s 4.1.5A of the Act, arose in relation to whether the P & E Court could or should excuse Ramsgrove's noncompliance with the public notification requirements. Section 4.1.5A is relevantly in the following terms:

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

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

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 … Act.

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

As I have mentioned, the P & E Court declined to excuse that noncompliance under s 4.1.5A(2) because the learned primary judge was not satisfied of the condition in s 4.1.5A(1)(b). Ramsgrove sought to rely upon the decision of the Council as the assessment manager under s 3.4.8 of the IPA as obviating the need for an excusatory order under s 4.1.5A(2) of the IPA.

Counsel for Ramsgrove were critical of the reasons given by the learned primary judge for rejecting the arguments advanced by Ramsgrove in reliance upon s 3.4.8 of the IPA. His Honour accepted that the Council did invoke s 3.4.8 of the IPA at its meeting of 15 July 2003 when it resolved to refuse Ramsgrove's application for development approval.¹⁶ His Honour then went on to describe the Council's willingness to exercise the provisions in s 3.4.8 of the IPA as "unreasonable".¹⁷ Counsel for Ramsgrove complained that the learned primary judge's reasons do not demonstrate the basis for his Honour's evident rejection of Ramsgrove's contention that the exercise by the Council of the power under s 3.4.8 made it unnecessary for the P & E Court to consider whether it should excuse noncompliance under s 4.1.5A(2) and, further, that the "reasonableness" of the Council's invocation of s 3.4.8 was never in issue before the P & E Court.

In my view, while there may be some force in the first of these criticisms, the position is that, even though the learned primary judge's reasons were not explicit on this point, it is abundantly clear from his decision that he rejected the proposition that the Council's decision to waive Ramsgrove's noncompliance obviated any need for the P & E Court to excuse that noncompliance to enable Ramsgrove's appeal to proceed to a decision on the merits. In my respectful opinion, the position adopted by the learned primary judge was correct.

The power conferred by s 4.1.5A(2) cannot be read down so as to confine the discretionary power of the P & E Court so that, in a case of noncompliance, the court must concur with the earlier view of the Council. It is to be emphasised that an appeal to the P & E Court is by way of a new hearing in which the P & E Court decides the matter as it if were the original decision-maker.¹⁸ It would be a strong thing to hold that submitters could be precluded, by the exercise by the Council of power under s 3.4.8, from appealing against a decision of the Council on the ground of noncompliance with the public notice requirements of the legislation. No such intention emerges from the language of either s 3.4.8 or s 4.1.5A.

The purpose of s 3.4.8 of the IPA is twofold. First, it permits the processes of assessment by the Council of an application to continue to a decision upon the application despite noncompliance with certain statutory requirements. Secondly, it ensures that a decision of the Council will not be susceptible to collateral challenge in those cases where there has been noncompliance with the public notification requirements. The section helps ensure that any challenge to the decision takes place by way of the appeal processes provided by the IPA.

The exercise of the power conferred by s 3.4.8 serves only to authorise the assessment manager to proceed to make a valid decision upon the application: it has no further legal effect. It certainly does not purport to pre-empt the exercise of the power conferred on the P & E Court by s 4.1.5A(2).

I would reject the argument advanced by Ramsgrove that the decision of the Council to proceed with the assessment process creates, in some way, some form of issue estoppel that binds the parties on appeal to the P & E Court from the Council's ultimate decision. There is simply no support in the language of s 3.4.8, s 4.1.5A or, indeed, any other provision of the IPA for such a view, or for the view that the Council's decision under s 3.4.8 of the IPA has effect as if it were a decision of the P & E Court under s 4.1.5A(2) of the IPA, or that the power of the P & E Court under s 4.1.5A operates as if it were subject to earlier decisions of the Council under s 3.4.8.

Very clear language indeed would be required to produce the result whereby a submitter could be precluded from raising noncompliance with the public notice requirements of the legislation on an appeal to the P & E Court by an earlier decision of the Council in relation to which the submitter had no entitlement to be heard.

Ramsgrove's other criticism of the learned primary judge's reasons focuses upon his Honour's concluding observation that the Council's decision in relation to noncompliance was unreasonable. It may be possible that his Honour's remarks in this regard should be understood as merely indicating his Honour's view that the considerations which led the Council to excuse Ramsgrove's noncompliance with the public notification requirements were not apt to cast doubt upon his decision that s 4.1.5A(1)(b) of the IPA had not been satisfied. However this may be, it is clear that even if this criticism were to be regarded as justified, the learned primary judge went on to consider for himself, as he was required to do, whether or not there had been noncompliance and, if so, whether that noncompliance should be excused under s 4.1.5A. The remarks made by his Honour about the Council's decision may have been unnecessary but they do not suggest, when read in the context of the rest of his judgment, that his Honour was in any way distracted from the task he was required to perform by the Act.

Conclusion and orders

For the reasons which I have given, Ramsgrove's contentions should be rejected.

Because the issues raised by the application are important, and because Ramsgrove's position was reasonably arguable, I would grant the application for leave to appeal, but dismiss the appeal.

I would order that Ramsgrove should pay the costs of the second and third respondents of the application and appeal to be assessed on the standard basis.

Footnotes

1. Ramsgrove Pty Ltd v Beaudesert Shire Council & Ors [2005] QPEC 101; DC No 2634 of 2003, 19 October 2005 at [3], [17] - [18]. ↩

2. Ramsgrove Pty Ltd v Beaudesert Shire Council & Ors [2005] QPEC 101; DC No 2634 of 2003, 19 October 2005 at [19], [24]. ↩

3. Ramsgrove Pty Ltd v Beaudesert Shire Council & Ors [2005] QPEC 101; DC No 2634 of 2003, 19 October 2005 at [20] - [23]. ↩

4. Section 11 of the IP Regulation was renumbered as s 18 from 4 October 2004: Integrated Planning Amendment Regulation (No 2) 2004 (Qld), s 2, s 10. There has been no substantive amendment to the terms of the section. For ease of reference, the relevant provision will continue to be referred to in these reasons as s 11. ↩

5. Cf Buckinghamshire County Council v Trigg [1963] 1 All ER 403 at 406 where Lord Parker CJ said: ↩

6. Ramsgrove Pty Ltd v Beaudesert Shire Council & Ors [2005] QPEC 101; DC No 2634 of 2003, 19 October 2005 at [17]. ↩

7. Cf Butterworths, Halsbury's Laws of England, vol 4(1) (4th ed, 2002) at [901]. ↩

8. [1996] NSWLEC 43; No 10930 of 1995, 29 February 1996 at [7]. The authorities considered by Bignold J included Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276; Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 and Parkes & Spencer v Rastogi & Newcastle City Council [1992] NSWLEC 108; (1992) 78 LGERA 71. Which meaning is applicable in any particular circumstance is to be determined by reference to the context in which the word appears: Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 433, 443. ↩