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COUNSEL: C L Hughes for the appellant / M D Hinson SC for the respondent

SOLICITORS: Connor O'Meara for the appellant / Deacons for the respondent

DAVIES JA: I agree with the reasons for judgment of Williams JA and with the orders he proposes.

WILLIAMS JA: This is an appeal from a decision of Quirk DCJ sitting in the Planning & Environment Court on 2 November 2000. The decision upheld the right of the respondent local authority to impose conditions requiring the appellant to pay approximately $273,000 for water and sewerage headworks as a condition of approval of the appellant's application to develop a parcel of land.

It should be noted that by Order in Council of 16 February 1989, made pursuant to the Local Government Act 1936, the name of the Shire of Proserpine was changed to Shire of Whitsunday. In these reasons the designation "respondent" will refer to the local authority by its name at each relevant date.

In about October 1988 the appellant was interested in purchasing 9,564 square metres of land (Lot 1 on RP 747787) from a Mr Newton. The appellant was informed by Newton that the respondent would not require further contribution for sewerage and water headworks if the land was to be developed at no greater intensity than that permitted by its Residential B zoning. The contract of sale entered into by the appellant as purchaser contained a clause in the following terms:

"It is an essential term and condition of this Contract that the Vendor:

(i)Prior to the date for completion shall provide a written acknowledgement from the Proserpine Shire Council that no further water and sewerage headworks contributions are payable other than such contributions which have already been paid in the proposed re ‑ subdivision pursuant to the provisions of the Building Units and Group Titles Act 1980-1988 of the within described land by the Purchaser for the purpose of the erection of home units on any part of the within described land".

Pursuant to the obligation imposed on him by that provision Newton wrote to the respondent on 25 October 1988 in the following terms:

"Further to our recent conversation regarding Lot 1 of Lot 15 RP 741848 off Border Drive in Cannonvale I seek council's confirmation that no headworks would be required to be paid should units be built on this allotment or should it be subdivided".

The response, dated 28 October 1988, was under the hand of the Shire Clerk of the respondent; relevantly it was in these terms:

"In relation to headworks contributions, the following passage from Council's Headworks Policy on a consent application is relevant.

'in respect of zonings approved and gazetted under Council's policies and by-laws applying prior to 14th December, 1981, a contribution of equivalent tenements equal to the equivalent tenements able to be erected on the land in accordance with the policies and by-laws applicable on 25 January, 1985 shall be deemed to have been previously paid unless a specific development application for more intense development has been approved by Council and is still current under current policies and by-laws'.

The area of land mentioned above was gazetted as Residential "B" on the 23rd July, 1981 and therefore under the consideration of the above passage.

The contributions of Water and Sewerage Headworks are deemed to have been paid to the amount equal to the equivalent tenements able to be accommodated on the land pursuant to Council's previous Town Planning Scheme."

That letter accurately stated the factual position under the existing planning policy for the Shire. The appellant in his evidence maintained he was induced by the statements made in that letter to complete the contract to purchase the subject land; that was accepted by Quirk DCJ.

In his reasons for judgment Quirk DCJ dealt with this aspect of the case in paragraphs 12 and 15. Those passages must be considered together in order to ascertain with accuracy what his Honour found to be a fact. The passages in question are as follows:

"(12)While anyone in the position of the appellant might have been satisfied with the contents of the letter, it is equally fair to say that the letter is open to the construction that the writer was, in effect, referring the reader to the relevant passage of the then current policy on the matter stating that the land was included in the Residential B zone and applying the words in the quoted relevant passage to the situation of the land. At first glance the phrase 'deemed to have been paid' is open to a fairly consequential interpretation but, in fairness to the writer, he was doing no more than repeating the specific words of the policy."

"(15)I have considerable sympathy with the appellant in that I am satisfied that he did decide to purchase the land relying on the assurances which he believed the Shire Clerk letter to be giving. However, it has to be accepted that the letter of the Shire Clerk did accurately reflect the planning controls in place at that time and contained no assurance that they were in effect 'set in stone' and could not be changed."

Those passages read together constituted findings that the letter accurately stated the then existing policy and that it did not contain any representation to the effect that such policy would not be changed. Further, there was a finding implicit in those passages that if the appellant believed from the letter that the respondent was giving some assurance that the policy would not be changed, that was not a construction reasonably open on the terms of the letter.

Counsel for the appellant focussed in particular on the last paragraph of the letter of 28 October in developing his submission but the contents of that paragraph are no more than a statement of existing fact. I cannot accept that the statement there amounts to a representation about future conduct which could support an estoppel.

Having completed the purchase of the subject land the appellant took no steps towards developing it until he lodged an application with the respondent on 22 December 1997 seeking development approval for a project involving the construction of 68 units. Such a development was within the limitations imposed by the Residential B zoning as at October 1988.

The relevant town planning provisions in force in 1988 were those adopted in 1985 by the respondent. But those provisions were amended by the respondent in November 1995. In accordance with the town planning provisions relevant after the 1995 amendments the respondent imposed the conditions in question upon the appellant's application made on 22 December 1997.

The contention of the appellant before the Planning & Environment Court, and before this Court, was that the respondent was estopped from imposing such a condition because of the representations contained in the letter of 28 October 1988 and the appellant's reliance on those representations, or alternatively such conditions could not be validly imposed because they were unreasonable under the test derived from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

In broad terms s 6.2(2) of the Local Government (Planning & Environment) Act 1990 empowers a local authority in the exercise of its discretion to require an applicant for approval to develop land to pay to the local authority an amount towards the cost incurred in providing the appropriate water supply and sewerage headworks. It was not disputed that at the time the application in question was made the respondent had in place a planning policy justifying the imposition of the conditions in question.

Counsel for the appellant in a carefully crafted submission did not contend that the respondent was estopped by representations in the letter of 28 October 1988 from altering its planning policy. The submission relied on was that the respondent could not apply (was estopped from applying) any altered planning policy to the appellant without at least giving him notice of its intention to do so. It was submitted that on the facts of this case the respondent should have notified the appellant of its intention to make the changes it did in 1995 so that he had the opportunity of making a development application under the earlier policy. As it did not give him such notice the contention is that the respondent is estopped from determining the application in question under the 1995 policy; on the appellant's submission, his application must be determined in accordance with the 1985 provisions.

Both in the Planning & Environment Court and this Court reference was made to the reasoning of Mason CJ in Attorney-General for New South Wales v Quin (1990) 170 CLR 1, especially at 17 and 18. In the first passage (cited in the judgment below) the Chief Justice said:

"The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power".

That general proposition was qualified on the following page where he said:

"What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion".

If the appellant is to succeed in the light of those statements of principle he must establish that the asserted estoppel would not significantly hinder the exercise of the respondent's discretion under s 6.2(2) in the public interest or that failing to hold the respondent to the representation would cause some grave injustice to the appellant which would occasion a greater harm to the public interest than would arise from holding the respondent to its representation.

There can, to my mind, be no doubting the proposition that it is in the public interest that a local authority vary its planning policy from time to time (as the duly elected authority having legislative power in that regard) to ensure that planning requirements of the locality meet changing circumstances as time goes by. Against that background it is significant that here the changes in 1995 were made after the previous policy had been in place for a period of 10 years. Further, the appellant had at least 7 years after he acquired the subject land to develop it in accordance with his present proposal and in accordance with the policy referred to in the letter of 28 October 1988, without incurring an obligation to make a further contribution for sewerage and water headworks.

It follows that the argument based on estoppel must fail for two reasons:

The letter of 28 October 1988 on its proper construction does not contain a representation that the planning policy would not change at some time in the future so as to make the appellant liable for headworks charges if he sought development approval after the date of that change;

Even if the letter of 28 October 1988 contained a representation that policy would not be changed in the future (or would only be changed after notification to the appellant) that would not create an estoppel because of the principle that a public authority exercising a statutory discretion may not, because of the public interest, bind itself not to perform that duty in a situation where it was not demonstrated that consequent injustice to the individual who acted on the representation would constitute greater harm to the public interest than holding the authority to its representation.

The alternative submission made on behalf of the appellant, unreasonableness in the Wednesbury sense, was based on essentially the same considerations said to give rise to the estoppel. Because the quantum of the headworks charges was determined by the terms of the policy the amount imposed on the appellant in this case was not relied upon as a particular of unreasonableness.

The factors relied on by counsel for the appellant as demonstrating unreasonableness were:

The respondent knew that the giving of the representation in the letter of 28 October 1988 was a condition precedent to the appellant completing the contract of purchase;

That representation was essential to determining the appropriate purchase price of the land at that time;

The representation had a bearing on the decision to purchase the land.

It is said that against that background the decision in 1999 to impose headworks charges was an unreasonable exercise of discretion.

To succeed on this submission the appellant would have to establish that the only conclusion open if it was to be held that the local authority acted reasonably was that it should apply the planning policy as it existed at 28 October 1988 (see Hope v Bathurst City Council (1980) 144 CLR 1 at 9, Vetter v Lake Macquarie City Council (2001) 75 ALJR 578 at 584, and Alberton Investments Pty Ltd and Brisbane City Council v Hymix Industries Pty Ltd and Boral Resources (Qld) Pty Ltd [2001] QCA 334; Appeal No 7206 of 2000, 21 August 2001).

In all the circumstances I am not satisfied that the appellant has discharged that onus.

It follows that the appeal should be dismissed with costs.

WHITE J: I agree with the reasons for judgment of Williams JA and with the orders which he proposes.