Chang v Laidley Shire Council

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kirby J.,Hayne,Heydon,Crennan JJ.,Callinan J.
• Judgment Date: 29 August 2007
• Neutral Citation: [2007] HCA 37,2007-0829 HCA C
• Docket Number: B46/2006
• Date: 29 August 2007

[2007] HCA 37

HIGH COURT OF AUSTRALIA

Kirby, Hayne, Callinan, Heydon and Crennan JJ

B46/2006

Shu-Ling Chang & Anor

Appellants

and

Laidley Shire Council

Respondent

Representation

D R Gore QC with T N Trotter for the appellants (instructed by Robert Milne Legal)

M D Hinson SC for the respondent (instructed by Connor O'Meara)

Acts Interpretation Act 1954 (Q), s 20.

Integrated Planning Act 1997 (Q), Pts 2, 5A, ss 3.2.1, 5.4.2.

Local Government Act 1936 (Q), ss 33(10).

Integrated Planning and Other Legislation Amendment Act 2004 (Q).

Shu-Ling Chang v Laidley Shire Council

Local government — Subdivision of land — Section 5.4.2 of the Integrated Planning Act 1977 (Q) (‘the Act’) afforded a statutory entitlement to compensation to those affected by a change in planning scheme — Appellants applied to respondent Council for approval for reconfiguration of land — Planning provisions did not permit proposed reconfiguration — Earlier provisions would have permitted reconfiguration — Whether appellants entitled to compensation on account of diminution in value of land brought about by inability to reconfigure — Whether appellants had ‘accrued right’ or ‘accrued entitlement’ to compensation.

Statutes — Interpretation — Meaning and effect of s 3.2.1 of the Act — Section 3.2.1 prescribed the method for applying for development approval — Proposed development was refused on the basis that it was contrary to the draft regulatory provisions — Whether development application that was contrary to the draft regulatory provisions was a ‘properly made application’ — Whether s 3.2.1 should be read down in conformity with the rule that statutes are not to be construed as interfering with vested interests unless that purpose is manifest — Whether a clear indication of the legislative purpose to abolish the right to compensation was required and was manifest.

Words and phrases — ‘accrued interest’, ‘accrued right’, ‘acquired right’, ‘development application (superseded planning scheme)’, ‘injurious affection’, ‘properly made application’, ‘retrospectivity’.

ORDER

Appeal dismissed with costs.

1 Kirby J. This appeal comes from the Court of Appeal of the Supreme Court of Queensland 1. That Court refused leave to appeal from a decision of the Planning and Environment Court of Queensland 2. The appeal concerns the interpretation of successive provisions of Queensland planning law affecting a parcel of land at Blenheim in South- East Queensland.

2 Under earlier provisions of the planning law, the land in question could, with the requisite approval of a development application, have been reconfigured (in the old language ‘subdivided’ 3) into lots of a modest size. After supervening changes to the planning law, reconfiguration as sought was prohibited. In these proceedings, the owners of the land have been seeking to recover what they claim is their entitlement to statutory compensation, accrued before that change took effect.

3 The owners' claim has been rejected (so far successfully) on the basis that, although the compensation sought was available for a time, it was removed by an amendment to the planning law which rendered the development application invalid. A valid development application was necessary to enliven the statutory entitlement to compensation. The owners argue that the supervening law, containing this amendment, did not apply to their case because, immediately before it came into operation, they had a vested entitlement to recover compensation for the loss of value of their interest occasioned by earlier changes to the planning law. They contend that the new procedural requirement for such applications did not clearly and explicitly govern their case. Conformably with statutory provisions 4 and common law principles 5, defensive of accrued entitlements (and protective against their extinguishment by amending laws not clearly stated as having that effect), the supervening law should be read so as not to apply.

4 In their reasons (‘the joint reasons’), Hayne, Heydon and Crennan JJ have concluded that the appeal must be dismissed. They have done so by reference to the language of the planning law as in force at the time the relevant application was made 6. Upon their Honours' approach, no question of retrospective

operation of the legislation truly arises 7. Nor was there any accrued ‘right’ in the owners that could attract either the statutory or common law principles protective of the continuance of vested rights 8. Callinan J, too, agrees in this conclusion, although with misgivings which he has expressed 9.

5 Ultimately, I reach the same result. But I do not regard this as an ‘open and shut case’ 10. Cases of this kind (at least when they reach this Court) rarely are. In part, this is because this Court ‘has rejected a narrow view of the survival of accrued rights in the context of repealing [or amending] legislation’ 11. In particular, it has not confined the protection of the law to ‘rights’ narrowly understood 12. In part, this has been so because of the reasons of legal and constitutional principle that lie behind the general protection of accrued legal entitlements 13.

6 This appeal fails, in the end, because of the terms of the legislation governing the matter 14. However, for me, this means the whole of the legislation, yielding from its detail the applicable purpose and policy of Parliament. The solution is not confined to what is meant by a supervening change to the requirements for ‘a properly made application’ for the proposed development 15. That consideration is but one factor in the analysis that leads to the stated outcome.

The facts and legislation

7 The appellants' interest in the land: Many of the background facts are set out in the joint reasons 16. However, to understand fully the complaint made by

the owners, Shu-Ling Chang and Tai-Hsing Chen (‘the appellants’), it is helpful to explain the way they presented their case.

8 The appellants' land, the subject of the proceedings, was within the local government area of the Laidley Shire Council (‘the Council’). The Council is the respondent to this appeal. Under a previous (1977) planning scheme applicable to it, the land was included in a zone designated for development purposes ‘Rural A’. In July 1992, an application was successfully made by the then owners for the land to be rezoned as ‘Rural Residential Zone’. That rezoning was gazetted in December 1992. When, in 1996, the Laidley Shire Council Town Plan (the ‘1996 Plan’) was adopted and given effect, the land was included in an area designated ‘Rural Residential A Zone’ 17. That was the relevant zoning of the land when the Integrated Planning Act 1997 (Q) (‘the 1997 Act’) was enacted and came into force.

9 Injurious affection in 2003: On 28 March 2003, in accordance with the 1997 Act, a new planning scheme for the Council's local government area was adopted. It replaced the 1996 Plan. Under the 1996 Plan, an application to reconfigure the appellants' single lot of land into 25 lots, which is the subject of these proceedings, was legally permissible. When, however, the 2003 planning scheme was adopted, it required that, for approval for the development which the appellants desired, lots should be larger than the minimum size which they were proposing. On the face of things, this meant that the land could not be reconfigured. To that extent, the introduction of the new planning scheme resulted in injurious affection to the appellants' interest in the land. The value of the appellants' interest was thereby reduced.

10 Yet when the new planning scheme was adopted in 2003, all was not lost for the owners. The 1997 Act, s 5.4.2, afforded owners of land, so affected, a special entitlement (a ‘privilege’ or ‘liberty’ 18) to seek redress from the Council. They were entitled to do so within two years of the adoption of such a planning scheme 19. Within that period, owners, such as the appellants, could make a ‘development application (superseded planning scheme)’ (‘DA(SPS)’). Such a DA(SPS) gave the ‘assessment manager’ (relevantly, the local government authority 20 and here the Council) an option on how to proceed 21. As the law then

stood, the Council could consent, in whole or in part, to the development sought, and thereby avoid any obligation to pay compensation to the land owner whose land was affected by the supervening scheme 22. Or it could pay compensation to the owner, being ‘reasonable compensation’, calculated as ‘the difference between the market values, appropriately adjusted having regard to [specified] matters’ 23.

11 Passage of IPOLA 2004: The position reached was then further complicated by yet another supervening change affecting planning law in Queensland, namely the enactment, and commencement, of the Integrated Planning and Other Legislation Amendment Act 2004 (Q) (‘IPOLA 2004’) 24. That Act came into force on 17 September 2004. The commencement date fell within the two year period that was available to the appellants, as owners of the subject land, to make a DA(SPS).

12 In the interval between March 2003 and September 2004, the appellants had lodged no DA(SPS) with the Council under the 1997 Act. In fact, the appellants did not make a DA(SPS) application until 3 December 2004. Then, for the first time, they applied for approval from the Council for the reconfiguration of their land from one lot into 25 lots.

13 IPOLA 2004 had amended the 1997 Act by introducing into Ch 2 of the 1997 Act a new Pt 5A. That Part provided for a completely different scheme of regional planning for the South- East Queensland (‘SEQ’) Region of the State. Specifically, IPOLA 2004 amended the 1997 Act to provide for a SEQ Regional Plan (‘SEQRP’), a draft SEQRP and regulatory provisions for both 25.

14 Commencement of DRP in 2004: On 27 October 2004, Draft...