Regional Land Development Corp No 1 P/L v Banana SC

SUPREME COURT OF QUEENSLAND

CITATION: Regional Land Development Corp No 1 P/L v Banana SC & Ors [2009] QCA 140

PARTIES: REGIONAL LAND DEVELOPMENT CORPORATION NO 1 PTY LTD ACN 114 234 892 (appellant/applicant) v BANANA SHIRE COUNCIL (respondent/first respondent) VELCOURT PROPERTIES PTY LTD ACN 120 556 087 (respondent/second respondent) ENVIRONMENTAL PROTECTION AGENCY (respondent/third respondent) CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS (respondent/fourth respondent)

FILE NO/S: Appeal No 1364 of 2009 / DC No 2924 of 2007

DIVISION: Court of Appeal

PROCEEDING: Planning and Environment Appeal

ORIGINATING COURT: Planning and Environment Court at Brisbane

DELIVERED ON: 26 May 2009

DELIVERED AT: Brisbane

HEARING DATE: 14 May 2009

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

ORDERS: Ex tempore orders of Holmes JA:

CATCHWORDS: ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – SUPREME COURT – ERROR OF LAW – where applicant alleged primary judge misapplied s 3.5.14 of the Integrated Planning Act 1997 (Qld) ("the Act") – whether alleged ground "error or mistake in law" as required by s 4.1.56 of the Act – whether leave to appeal should be granted / Integrated Planning Act 1997 (Qld), s 3.5.14, s 4.1.56, Sch 10 / Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205, cited / City of Springvale v Heda Nominees Pty Ltd (1982) 57 LGRA 298, cited / Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36, cited / Franceschini v Melbourne & Metropolitan Board of Works (1980) 57 LGRA 284, cited / Harrow Trust v Adelaide Hebrew Congregation Inc & City of Burnside [2002] SASC 308, cited / Luke & Ors v Maroochy Shire Council & Watpac Developments Pty Ltd [2003] QPELR 447; [2003] QPEC 5, cited / Randwick Municipal Council v Manousaki (1988) 66 LGRA 330, cited / Read v Duncanson & Brittain (Quarries) Pty Ltd [1988] 2 Qd R 701, cited / Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council & Anor, unreported, Griffin SC DCJ, Planning and Environment Court, Qld, 19 December 2008, cited / Residential Developments Australia Pty Ltd v Brisbane City Council [1990] QPLR 121, cited / Ridgewood Development Pty Ltd v Brisbane City Council [1985] 2 Qd R 48, cited / Sullivan v District Council of Riverton (1997) 95 LGERA 150; (1997) 69 SASR 234, cited / Westfield Management Ltd v Pine Rivers Shire Council & Anor [2005] QPELR 534; [2005] QPEC 15, cited / Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273; [2005] QCA 262, cited / Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306; [1996] QCA 226, applied

COUNSEL: The applicant appeared on its own behalf / S M Ure for the first respondent / D R Gore QC, with J J Haydon, for the second respondent / L G Body (sol) for the third respondent / G B Wilshier (sol) for the fourth respondent

SOLICITORS: The applicant appeared on its own behalf / King & Company for the first respondent / Bain Gasteen for the second respondent / Department of Environment and Resource Management for the third respondent / Crown Law for the fourth respondent

1. KEANE JA: On 8 September 2006 Velcourt Properties Pty Ltd ("Velcourt") applied to the Banana Shire Council ("the Council") under the Integrated Planning Act 1997 (Qld) ("the IPA") for approval for:

(a) a reconfiguration of 18.72 hectares of a parcel of 112.6 hectares of land near Biloela by subdividing it into 208 residential lots, between 800 m2 and 1341 m2 in area;

(b) a material change of use of the 18.72 hectares by the exclusion of the proposed 208 residential allotments from the Town Zone Rural Residential Precinct to the Town Zone Residential Precinct.

2. Regional Land Development Corporation No 1 Pty Ltd ("Regional"), which is the developer of neighbouring land for residential purposes, made a submission to the Council opposing Velcourt's application.

3. Velcourt's development application fell to be assessed by the Council under s 3.5.14 of the IPA. On 11 April 2007 the Council approved Velcourt's application.

4. Regional appealed against the Council's decision to the Planning and Environment Court ("the P & E Court"). On 19 December 2008 the P & E Court dismissed Regional's appeal.

5. The decision of the P & E Court turned upon the resolution of the contest between expert evidence adduced on behalf of Velcourt and Regional. The contest between the expert witnesses concerned a number of issues, but relevantly for present purposes, the experts expressed differing views as to the significance of the change from rural residential to standard residential so far as the 18.72 hectares to be reconfigured are concerned, and upon the considerations of need said to justify this change. The learned judge of the P & E Court weighed the competing views of the expert witnesses who testified before him and resolved this contest in favour of Velcourt.

6. Regional now applies to this Court pursuant to s 4.1.56(1) of the IPA which provides relevantly for an appeal from a decision of the P & E Court on the ground "of error or mistake in law on the part of the court". Section 4.1.56(2) of the IPA provides: "However, the party may appeal only with the leave of the Court of Appeal or a judge of Appeal".

7. In Velcourt's written submissions a threshold question was raised as to whether the proposed appeal by Regional involves an error of law on the part of the P & E Court. Prior to the hearing of the application, but after the parties had filed written outlines of their submissions, the Court informed the parties that it would be assisted by Regional articulating the error of law said to arise for correction on appeal. Unfortunately, Regional ceased to provide its solicitors with instructions so that the Court's request went unanswered.

8. At the hearing, Regional's solicitors sought and were given leave to withdraw. Mr Foreman, Regional's sole director, appeared at the hearing of the application. Mr Foreman was content to rely on the written outlines of submissions provided to the Court by his former solicitors.

9. In the written submissions advanced on behalf of Regional, it was said that the issues of law which were erroneously decided concern the interpretation of s 3.5.14(2) of the IPA, which provides:

"If the application is for development in a planning scheme area, the assessment manager’s decision must not–

(a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or

(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict."

10. Schedule 10 of the IPA defines "grounds" for these purposes to mean "matters of public interest" but not "the personal circumstances of an applicant, owner or interested party".

11. Regional argued that the P & E Court misapplied s 3.5.14(2)(b) by failing to identify the nature and extent of conflict between the proposed development and the planning scheme ("the conflict issue"), and by wrongly identifying grounds which could justify a decision to approve the proposed development despite the conflict ("the grounds issue"). The very terms in which Regional's argument is framed invite attention to the threshold issue raised by Velcourt.

Error of law? General considerations

12. By virtue of s 4.1.56 of the IPA an appeal to this Court is available only by leave and relevantly on the ground of "error or mistake in law" on the part of the P & E Court. The provisions of s 4.1.56 of the IPA serve a two-fold purpose. First, they manifest an intention on the part of the legislature that this Court should not interfere with the expert resolution of planning issues by the specialist P & E Court save to the extent necessary to ensure that that court acts within its jurisdiction and in conformity with the law. It is the evident intention of the legislature that decisions of the P & E Court as the specialist tribunal for planning matters should not be subject to general review on the merits. In Sullivan v District Council of Riverton,¹ Duggan J (with whom Doyle CJ and Lander J concurred) emphasised the specialist role of the planning court and its importance in the resolution of conflicts between expert witnesses:

"The extent, if at all, to which it is appropriate to take account the views of experts in a planning case depends very much on the circumstances of the individual case. …

However it is important once again not to lose sight of the fact that this is a specialist tribunal. In this respect the comments of Debelle J in SA Housing Trust v Lee (1993) 81 LGERA 378 at 385 are appropriate:

'Frequently the tribunal is required to form a value judgment as to the nature of a proposal, the manner in which it is likely to operate, its likely effect on the relevant neighbourhood or locality and, having determined these and all other relevant factors, determine whether planning consent should issue. These are matters which the tribunal with its specialist expertise is usually in as good a position as the expert to form a judgment. The evidence of planners in this case was not unanimous or uncontradicted. Furthermore, the evidence essentially consisted of opinions going to the nature of the facility and its likely impact on the residential amenity, a matter of planning judgment which a specialist tribunal of this kind is well equipped to determine.'"²

13. Secondly, s 4.1.56 of the IPA is apt to achieve the wholesome purpose of conserving this Court's resources. It is often convenient for this Court to reserve its decision on the question of leave until after it has heard argument on the merits of the issues sought to be agitated on appeal. Nevertheless, s 4.1.56 of the IPA clearly contemplates that putative errors of law should be presented by an applicant so as to be recognisable as such by this Court without the need for the Court to descend into the evidence to be reviewed on the proposed appeal in order to determine whether leave should be granted.

14. More than 20 years ago, Connolly J (Vasta J concurring) remarked in Read v Duncanson & Brittain (Quarries) Pty Ltd:³

"At first glance the grounds [of appeal] do not clearly appear to raise questions of law but, as will appear, if they are benignly read, it is possible to extract one. It is I think timely to remind the profession yet again that the Court has from time to time said that the notice of appeal in a case of this sort should clearly identify the question of law which is raised."⁴

15. Regional's notice of appeal ignored this direction. An attempt to conform with it was made in Regional's written outline of submissions where the following was put on its behalf:

"… [t]he primary judge erred in law in exercising the discretionary power to approve or refuse the development application as regulated by s 3.5.14(2)(b). Regional submits that the exercise of discretion miscarried by reason of:-

(a) taking into account irrelevant considerations and failing to take into account relevant considerations;

(b) failing to correctly identify the nature and extent of conflict with the planning scheme;

(c)the consequent inability to properly judge the sufficiency of the grounds relied on by Velcourt to justify a decision in conflict with the planning scheme;

(d)wrongly identifying grounds which could justify a decision which was in conflict with the planning scheme."

16. The threshold question is not answered by these desultory and unfocussed assertions. To assert that there has been an error of law to be found somewhere is not to "identify" it.

17. As to the distinction between errors of law and errors of fact, in Yu Feng Pty Ltd v Maroochy Shire Council,⁵ Fitzgerald P said:

"The broad test which is sometimes expressed is that, while the meaning of an ordinary English word which is used in its ordinary and not some technical, commercial, trade or other special (for example defined) sense in a statute or document having legal effect is a question of fact, the construction of the statute or document (or the material part of the statute or document), i.e., the ascertainment of its legal effect, is a question of law; see, for example, Life Insurance Co. of Australia Ltd v. Phillips (1925) 36 C.L.R. 60 at 78 per Isaacs J.; Australian Gas Light Co. v. Valuer-General (1940) 40 S.R. (N.S.W.) 126 at 137 per Jordan C.J.; Neal v. Secretary, Department of Transport (1980) 29 A.L.R. 350 at 361–362; Collector of Customs v. Pozzolanic Enterprises Pty Ltd (1993) 115 A.L.R. 1. However, the cases show that the distinction for which that test provides cannot always provide a solution and, even when it can, is often difficult to apply in practice. For example, if a statute uses words 'according to their common understanding, the question … whether the facts as found fall within these words', is one of fact, not law: Hope v. Bathurst City Council (1980) 144 C.L.R. 1 at 7, per Mason J., citing Brutus v. Cozens [1973] A.C. 854. Hope also accepts, at 8, citing New South Wales Associated Blue-Metal Quarries Ltd v. F.C.T. (1956) 94 C.L.R. 509 at 512, that the 'common understanding of … words … is a question of fact'. However, it is a question of law when words used in a statute (and, by implication, any other document having legal effect) are used 'in any other sense than that which they have in ordinary speech': Hope at 8, citing Blue-Metal Quarries at 511–512. Importantly, the proposition for which Brutus is cited in Hope only applies if the conclusion that the 'facts fall within [the] words' is available on the evidence; it is a question of law 'whether the material before the court reasonably admits of different conclusions' with respect to whether or not the statutory provision (or other provision having legal effect) is met: Hope, again at 8 citing Associated Blue-Metal Quarries at 512. A conclusion that such a provision is met without evidence which 'reasonably admits of' that conclusion is consequently a mistake or error in law: cf. Azzopardi v. Tasman UEB Industries Ltd (1985) 4 N.S.W.L.R. 139; Harrower v. Craig (1992) 109 F.L.R. 80; Luu v. Renevier (1989) 91 A.L.R. 39 at 47; Minister for Immigration and Ethnic Affairs v. Teo (1995) 57 F.C.R. 194, 199 ff.; Re McIntyre; Ex parte Community and Public Sector Union (1995) 131 A.L.R. 689 at 703 ff, Lim v. Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Full Court, N.G. 919/94, unreported judgment 8 August 1995); cf. [1984] A.C. 808 at 820–821."

18. In the same case, Pincus JA said:⁶

"The question whether facts fully found fall within the provision of a statutory enactment properly construed is not a question of law, where the words to be construed are used according to their common understanding; but whether the material reasonably admits of different conclusions as to whether the facts fall within the ordinary meaning is a question of law."

19. In Randwick Municipal Council v Manousaki,⁷ the New South Wales Court of Appeal heard an appeal from a single judge of the Land and Environment Court determining an appeal from an assessor. At issue was whether the assessor's discretionary refusal of a development application could be properly characterised as involving an error of law to found an appeal. Clarke JA (with whom Hope and McHugh JJA concurred) stated:

"The reasons for decision of the assessor [of the development application] disclosed no misstatement of legal principle nor is it possible to infer from them any failure to abide by the statutory instruction appearing in [the Act]. They reflect, no doubt as a consequence of the manner in which the adversaries joined issue before him, his consideration of those factors mentioned in the subsection which appeared to him to be relevant and important to the development application.

At the highest the grounds of appeal raised assertions of errors of fact and the appeal should have been dismissed."⁸

20. In Harrow Trust v Adelaide Hebrew Congregation Inc & City of Burnside,⁹ Bleby J of the Supreme Court of South Australia reviewed recent High Court authority on the distinction between a question of law and a question of fact in Collector of Customs v Agfa-Gevaert Ltd,¹⁰ and concluded:

"It may be doubted that the provisions of the Development Plan are to be interpreted as if they were a statute. They do no more than they purport to do, namely express objectives and general principles, rather than words of prescription or proscription generally found in a statute. However, for present purposes I am content to assume that they should be so treated. The words used in the extracts I have quoted are ordinary English words with no particular legal or technical meaning. Whether a given set of facts comes within the terms of those words will be a question of fact. The Court rejected [an expert's] opinion based on the evidence of other experts. That evidence demonstrated, in the opinion of the Court, that the surveys relied upon by [the expert] were either not relevant to the intended residents or were otherwise flawed. It was open to the Commissioner comprising the Court to reject [the expert's] evidence for the reasons that he gave. Having rejected that evidence he concluded that there was no material risk to children [as required by the Development Plan]. He applied the ordinary English meaning of the words in the Development Plan. It was reasonably open to him to hold, having rejected that evidence, that the facts of the case fell within the relevant requirements of the Development Plan, and that there was no failure to comply with the plain English requirements of the Plan. All that could only amount to a finding of fact, and does not give rise to a question of law.

[Counsel for the first respondent] also argued that where inferences are to be drawn from primary facts as to the factum probandum, that also gives rise to a question of law. I reject that argument. The fact that an appellate court is free to draw its own inferences of fact (Warren v Coombes (1979) 142 CLR 531) does not convert what is a finding of fact into a question of law. The drawing of inferences from other primary facts will generally only constitute the finding of facts.

The first respondent also argued that the Commissioner misunderstood and misapplied the expert evidence, and sought to elevate that to a question of law. It is not apparent to me that there was any such misunderstanding by the Commissioner, but even if there was, that could only give rise to an error of fact and not a question of law."¹¹

Error of law? In this case

21. In this case the learned judge of the P & E Court noted the "obvious conflict" between the proposal and the scheme involved in converting rural residential land to residential land, but his Honour did not accept that "there is a significant conflict with the scheme in nature, style and extent."¹² (emphasis in original)

22. Regional's argument on the "conflict issue" is that the learned primary judge erred in not concluding that the nature and extent of the conflict was "significant" for the determination of the application. How this is said to involve a question of construction of s 3.5.14(2) of the IPA is not apparent either from Regional's notice of appeal or its submissions.

23. Questions as to whether evidence satisfies an indeterminate test such as "significance" or "substantiality" are generally questions of fact.¹³ While it may be accepted that whether there is a conflict between the decision of the assessment manager and the planning scheme within the meaning of s 3.5.14(2)(b) of the IPA can be a question of law,¹⁴ the question of the "significance" of that conflict appears to be a question of fact. This will usually be so where the determination of the question is informed by reliance by both parties on competing bodies of expert evidence as was the case here. One should be wary of laying down hard and fast rules because much may turn on the terms of the relevant legislation and the circumstances of the case, but in this case I have difficulty seeing how the conclusion of the P & E Court in this regard, even if it is erroneous, can be characterised as an error of law rather than an error of fact.

24. It is not said, for example, that the judge in the P & E Court misinterpreted the word "conflict" or any other expression used in s 3.5.14(2). Regional does not articulate an argument to the effect that the word "conflict" in s 3.5.14(2)(b) has some connotation which eluded the learned judge of the P & E Court. Regional does not articulate an argument that the judge in the P & E Court misinterpreted any provision of the planning scheme.

25. One possible basis for viewing the findings in this case as conclusions of law would involve accepting that the "extent" or "significance" of a conflict is irrelevant to the enquiry whether there is a conflict at all on the basis that an assessment of "extent" or "significance" is extraneous to the exercise required by s 3.5.14(2)(b) of the IPA. I am unable to accept such a view. The exercise contemplated by s 3.5.14(2)(b) necessarily involves an evaluation of "conflict" as against "grounds" to determine whether the latter are "sufficient … to justify the decision" despite the former.

Conclusion and orders

33. In the end I am not persuaded that the arguments which Regional seeks to agitate in respect of the decision of the P & E Court assert errors of law with sufficient clarity to warrant the grant of leave to appeal.

34. I would refuse the application for leave to appeal.

35. I would order that Regional pay the costs of the other parties to the application to be assessed on the standard basis.

36. HOLMES JA: I agree with the reasons of Keane JA and with the orders his Honour proposes.

37. FRASER JA: I agree with the orders proposed by Keane JA and his Honour's reasons for those orders.

esp at [103].

Footnotes

1. (1997) 95 LGERA 150. ↩

2. (1997) 95 LGERA 150 at 158. ↩

3. [1988] 2 Qd R 701. ↩

4. [1988] 2 Qd R 701 at 703. ↩

5. [2000] 1 Qd R 306 at 335 – 336. ↩

6. [2000] 1 Qd R 306 at 343. ↩

7. (1988) 66 LGRA 330. ↩

8. (1988) 66 LGRA 330 at 334. ↩

9. [2002] SASC 308. ↩

10. (1996) 186 CLR 389. ↩

11. [2002] SASC 308 at [15] – [17]. ↩

12. Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council & Anor, unreported, Griffin SC DCJ, Planning and Environment Court, Qld, 19 December 2008 at [41]. ↩

13. Cf Ridgewood Development Pty Ltd v Brisbane City Council [1985] 2 Qd R 48 at 52. ↩

14. Cf Luke & Ors v Maroochy Shire Council & Watpac Developments Pty Ltd [2003] QPELR 447