Chang & Anor v Laidley Shire Council [2007] HCATrans 121 (22 March 2007)

Last Updated: 26 March 2007

[2007] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B46 of 2006

B e t w e e n -

SHU-LING CHANG and TAI-HSING CHEN

Appellants

and

LAIDLEY SHIRE COUNCIL

Respondent

KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 22 MARCH 2007, AT 10.09 AM

Copyright in the High Court of Australia

MR D.R. GORE, QC: I appear with my learned friend, MR T.N. TROTTER, for the appellants. (instructed by Robert Milne Legal)

MR M.D. HINSON, SC: If your Honours please, I appear for the respondent. (instructed by Connor O’Meara)

KIRBY J: Yes, Mr Gore.

MR GORE: Your Honours, may we be permitted to introduce this appeal by borrowing and adapting the introductory words of your Honour the presiding judge, Justice Kirby, in one of our cases of Dossett v TKJ Nominees by saying that this is another dispute about statutory interpretation. It presents the type of problem about which judges of all courts not infrequently differ. With that in mind we seek to persuade your Honours to differ from the courts below. The issues have been identified in the - - -

KIRBY J: So far you have not collected one on the road, have you?

MR GORE: I have not collected one on the road, your Honour.

KIRBY J: However, you got special leave.

MR GORE: Might we reduce the issues raised to one question and that question is: did the draft regulatory provisions which came into effect on 27 October 2004 pursuant to amendments made to the Integrated Planning Act on 17 September 2004 apply to the appellant’s development application (superseded planning scheme) which was referable to a change to the planning scheme affecting the appellant’s land when that change occurred on 28 March 2003, that is prior to both the amendments made to the Integrated Planning Act in 2004 and the taking effect of the draft regulatory provisions in 2004?

CALLINAN J: Mr Gore, you have got a chronology?

MR GORE: Yes, your Honour.

HAYNE J: That statement of the question differs markedly from the issue as it was presented to the Court of Appeal by the notice of appeal appearing at page 71 of the appeal book, does it not?

MR GORE: I will just check that, your Honour, if I may.

HAYNE J: The notice of appeal to the Court of Appeal which gives rise ultimately to the matter in this Court turned upon whether the development application (superseded planning scheme) made by the appellants was a “properly made application” for the purposes of section 3.2.1 of the Integrated Planning Act 1997, is that right?

MR GORE: That is so, your Honour, and might I respectfully submit that the way in which we have rephrased the question today does not involve any departure from that issue at all. What I am conscious of is that in our submissions we framed two issues which were broadly accepted by the respondent - perhaps if your Honours would look at those issues as framed – and to the respondent’s response in their submissions. I just invite the Court to read our paragraph 1 and the Council’s paragraph 1.

HAYNE J: Again, the way in which the issue is framed departs, does it not, from the way in which the matter was put to the Court of Appeal and the way in which the matter was put to the Court of Appeal more closely approximates the questions that are presented by the legislation.

MR GORE: Your Honour, the grounds before the Court of Appeal at page 71 of the appeal book referred to four matters. The first matter was not pursued in the Court of Appeal. It was an issue before the primary judge as to whether the appellants’ land got the benefit of a specific exception in the draft regulatory provisions. I will be taking the Court to that provision later. Ground 1(d) was not pursued in the Court of Appeal either. That was whether what I will call an excusatory power given to the Planning and Environment Court could avail the appellants here. It was (b) and (c), your Honour, that were live grounds before the Court of Appeal and they are another way of putting the issue as I put it earlier this morning and as it was put in the submissions.

The fundamental question, as your Honour, with respect, quite correctly points out, is whether or not this application is to be regarded as a properly made application for the purposes of section 3.2.1(7) of the Integrated Planning Act. The ground upon which the judges below have held that it was not a properly made application related to paragraph (f) of that subsection. That is the paragraph which was introduced by the 2004 amendments and, in effect, provided that an application was not a properly made application if it was contrary to the draft regulatory provisions or what I will call the final regulatory provisions. The contention that we made both before the learned primary judge and before the Court of Appeal was that that particular provision which was the central fatal provision for us did not apply to our development application (superseded planning scheme), even though it had been made after that provision came into force. It did not apply because our application was referable to a planning scheme change which occurred in 2003 before those amendments were made.

So, your Honour, with great respect, there is no departure at all from the question which has been raised before the courts below. There will always be differences in emphasis and differences in style and some differences in argument but there is no difference to the question, your Honour, with respect.

HAYNE J: But the critical proposition you make is, is it, that in considering the operation of 3.2.1(7) of the Integrated Planning Act, paragraph (f) is what? Not applicable?

MR GORE: Not applicable. What is at the heart of this case, your Honour, is the presumption against retrospectivity. That is what this case is all about. However it is described, however it is argued, that is fundamentally what lies at the heart of this case.

KIRBY J: Well, as in many cases it perhaps depends on where one starts, but it might be best if you develop your argument and then, if Mr Hinson suggests that you have shifted your ground, we will have to take that into account.

MR GORE: Yes. I will do the best I can not to shift ground, your Honour.

KIRBY J: Could you explain to me – it does not seem to be touched on except very lightly by Justice Keane – how the IPOLA Act, which came into force on 17 September 2004, came to be enacted? Was it the result of some inquiry or was there some overall planning policy that led to the introduction of this major new Act?

MR GORE: Your Honour, the appeal book is silent about that and I think the material below was silent about that also.

KIRBY J: We do not seem to have any ministerial statements in support of that Act indicating the - - -

MR GORE: But we do have the explanatory notes, your Honour, and I will take your Honours to that. One can infer from the provisions themselves what generated its production and could I perhaps - - -

KIRBY J: You come to that in due time, but Justice Keane in his reasons rather suggested that the scheme of the new Act incorporating 3.2.1(7)(f) and 3.2.1(10)(b) was designed to meet important new developments and to make clear that the previous scheme protective of the rights of cases of injurious affection was to be changed, and that is the sort of anchor of the view that was taken by the Court of Appeal that as far as I am concerned you have to disturb.

MR GORE: Yes. Your Honour, I would probably put it slightly differently and I am very conscious of the passages from Justice Keane’s judgment that you have in mind. What we will be submitting to this Court is that Justice Keane took a literal interpretation of the provisions to which your Honour has just referred and he referred to an earlier decision of this Court in which he successfully appeared as counsel – one tends to remember some of those cases – in which - - -

KIRBY J: I notice he also referred to the Wik decision where he appeared unsuccessfully.

MR GORE: Unsuccessful.

KIRBY J: So he was perfectly even in his citations.

MR GORE: That is true, your Honour. He referred to the Australian Industrial Relations Commission Case which involved a transitional provision and where this Court had held that the transitional provision was exhaustive, as it were, of the treatment of applications pending before the Commission, and what Justice Keane said was that section 3.2.1(f) really should be viewed in the same light, that it is intended to apply to all applications which are made after it came into force, not some and not to others. He is right, with respect, in saying that it is the appellant’s contention that 3.2.1(f) does not apply to all applications made afterwards because it is the appellant’s contention based fundamentally on the presumption against retrospectivity that that provision does not apply to a development application (superseded planning scheme) which arises out of a change which occurred to the planning scheme affecting the appellants’ land before the 2004 amendments or different process came into effect.

KIRBY J: You did not get your application in until after the IPOLA Act came into force, did you?

MR GORE: That is correct, your Honour.

CRENNAN J: About 18 months, was it not, after the change about which you complain?

MR GORE: That is correct, your Honour, but we had two years under the legislation and, indeed, as we point out in our submissions, it is, as we perceive the respondent’s argument, common ground that if we had lodged that application between the September 2004 amendments and the October 2004 draft regulatory provisions, which would itself be a period of some 15 or 16 months, if we had lodged the application before the draft regulatory provisions came into effect, we would have been protected by section 6 of the draft regulatory provisions that I will take you to later. They say we were too late because we have put it in after the draft regulatory provisions came into effect, we are not protected by section 6 and we are not protected by anything else.

What we say is that section 6 of the draft regulatory provisions is not an exhaustive statement of the development applications which are protected from the operation of the draft regulatory provisions. The other category on which all of this legislation and regulations were silent is the category into which the appellants’ application falls, namely one that is referable back to a change which occurred before this new regime was introduced.

CALLINAN J: Mr Gore, there is something I wanted to ask you. Section 5.4.2 of the IPA, the compensation provision, the first condition is in order to qualify for compensation that there is a change that reduces the value of the interest, which is something I will come back to. Then it says –

(b) a development application (superseded planning scheme) for a development permit relating to the land has been made –

just pausing there, do you have to concede or accept that a development application under 5.4.2 is necessarily the same as a properly made application under 3.2.1 of the Act?

MR GORE: If I am understanding your Honour’s question correctly, under section 3.2.1 - - -

CALLINAN J: It defines a properly made application, is that not right?

MR GORE: Yes, your Honour.

CALLINAN J: Is a development application under 5.4.2 one and the same thing necessarily and inevitably as a properly made application?

MR GORE: Your Honour, twice in the judgment of Justice Keane he records that it was common ground between the parties before the Court of Appeal.

CALLINAN J: You did concede that then?

MR GORE: But it works in my favour.

CALLINAN J: Does it?

MR GORE: It works in my favour, your Honour. Your Honour will have noted from the Council’s submissions that they say that we have not lost the right to make an application. So they say as far as paragraph (b) of 5.4.2 is concerned that we have not lost that right but, because they say that for the process to continue it has to be a properly made application for the purposes of section 3.2.1 and because they agreed before the Court of Appeal that that is the way in which to interpret paragraph (b), it involves a concession that the whole process is forestalled at that (b) step.

KIRBY J: Yes, but that may not be an unrealistic concession because you have the right to make the application but that then enlivens the question, is it a “properly made application”, and the Council has to decide. So up to that point you made your application and then there is a decision that has to be made and you might dispute that it is properly made or not. So there are two steps: you make the application and then it has to be characterised.

MR GORE: Yes.

CALLINAN J: You do not even put the matter in the alternative upon the basis that I suggested. That might affect the value. It might be that the change may produce a lesser reduction in value than might otherwise be the case if you have your full rights under the superseded one but, arguably, it might entitle you to something. I am just wondering whether there may have been an alternative argument there, Mr Gore. But, in any event, you seem to have conceded it. You say development application under 5.4.2 is one and the same as a properly made application.

MR GORE: Your Honour, I do find it difficult to argue otherwise but I am content - - -

CALLINAN J: No, I am just putting something to you.

MR GORE: I am grateful for the invitation, as it were.

CALLINAN J: No, it may not lead anywhere, Mr Gore, it is just something that occurs to me as a possibility, that is all. Say that were so, there is no doubt that the change would satisfy 5.4.2(a) and then (c) – they are all conjunctive – but (c), if you make the application “having regard to the planning scheme” and everything you miss out, but that does not mean that an assessment has not been made. The assessment being made is that it is not an application that the Council can deal with because it is contrary to the changes.

KIRBY J: Anyway, perhaps you might put that into your subconscious and think about it whilst we – you are already on notice from Justice Hayne’s questions that you are not necessarily going to get away with restructuring your case, but for the moment I think you should develop the case that you have come to argue. For the moment we will assume that you are adhering to the concessions that you made below that are recorded in the Court of Appeal decision.

MR GORE: That is so, your Honour.

KIRBY J: If you decide to change that we will have to consider where we take that, especially as it has not been considered below and has not been advanced and was conceded below. That might create problems for your raising it before us.

MR GORE: Yes.

KIRBY J: You just press on I think with the argument you have come to argue and we will see whether you are shifting ground or not. If you are you may not get away with it.

MR GORE: I will get further into the argument and hopefully your Honours will then see that there is not any departure from the grounds below.

KIRBY J: I do not think there is any alternative but to plunge into the legislation.

MR GORE: I will come to that shortly. I foreshadow, your Honours, that is going to be something of a laborious task and we will be seeking the Court’s indulgence.

KIRBY J: We are aware of that.

MR GORE: It is not going to be the most pleasurable part of the morning but it is a fundamental step that I have to go through to acquaint your Honours with the statutory regime that we have to deal with. Can I just continue, though, with some introductory submissions. I said earlier that the fundamental principle in this appeal is the presumption against retrospectivity and in that regard we submit that it is important to recognise that a development application (superseded planning scheme) is, as the specific name of the application would suggest, a special kind of development application which can itself have a retrospective operation if the assessment manager, here the respondent Council, elects to assess the application under the superseded planning scheme, here the planning scheme which applied to the appellants’ land from 6 December 1996 to 28 March 2003.

It was, we submit, also the means by which the appellants could secure an entitlement to statutory compensation, under the provision that Justice Callinan has referred to, arising out of a reduction in the value of the appellants’ land caused by the 2003 planning scheme. To understand that statutory regime it is necessary to speak briefly about the old regime which applied in Queensland modelled on interstate and indeed on the United Kingdom for decades before dealing with the Integrated Planning Act regime.

HAYNE J: Why have we got to go back? What is the point that you are making?

MR GORE: A couple of reasons, your Honour. One of the critical decisions relied upon by the appellants before the Court of Appeal was an earlier decision of the Court of Appeal in Resort Management Services v Noosa Shire Council which was based upon the old scheme and the Court of Appeal below distinguished Resort Management Services. We submit that it is still a very relevant case to the Integrated Planning Act that it is based correctly in principle, decisions of this Court and of other courts, and if we are right in saying that the Court of Appeal below incorrectly distinguished Resort Management Services, we win on the first point. It is as simple as that, your Honour.

KIRBY J: Well, it was an important part of Justice Keane’s reasoning that under the old scheme you got protection for injurious affection, whereas his view was that under the current law you only got protection in respect of a matter that could be the subject of a proper application and therefore that the two schemes were different. Ultimately, you are going to have to grapple with the interpretation of the current legislation.

MR GORE: Absolutely.

KIRBY J: That is not going to be solved by going to judicial dicta about the previous scheme.

MR GORE: Your Honour, obviously, with respect, I accept that.

KIRBY J: Anyway, you want to lay the ground as to the history of the legislation before you come to analyse it.

MR GORE: I do, your Honour. I will try to keep it as short and as simple as I can, but we do submit that it is important to an understanding of the new scheme.

KIRBY J: The trouble is that there was a 1936 Act apparently in Queensland - - -

MR GORE: Which was exactly the same.

KIRBY J: - - - and then there was a 1990 Act. Is that correct?

MR GORE: Correct, your Honour. The schemes in those two Acts were relevantly the same and they find reflection in paragraph 5.4.2(a) of the Integrated Planning Act, so that the old scheme has been continued but with differences, and the question is whether the differences, properly interpreting the new legislation, are such as to make the decision of the Court of Appeal below correct or incorrect. So under the old scheme there was, as your Honour Justice Kirby points out, only compensation for injurious affection. That was taken to be a reduction in the value of land that was not expressed in the old statutes but it was accepted by the courts, including this Court in Kettering’s Case. That concept is now expressed in the Integrated Planning Act and compensation was assessed by reference to what for convenience can be called the before and after values; what was the value of the land before the reduction, before the adverse change in the planning scheme, and what was the value of the land after that adverse change. Prima facie the compensation was assessed at the difference between the before and after values.

So that to come closely to the facts of this case, as your Honours are aware, value is always assessed on the basis of highest and best use - not some lower order use, but the highest and best use. So, if in a particular case land in a rural environment had as its highest and best use further subdivision for rural residential purposes and that right to subdivide was lost by the introduction of a new planning scheme, the compensation would be assessed at the difference in value between the value of the land for rural residential purposes and the value of the land for its new highest and best use which we will assume is just rural grazing.

KIRBY J: When did compensation for injurious affection as a result of supervening planning law first come in in Queensland?

MR GORE: It came in as part of the 1936 Local Government Act. I have not recently double checked whether it was there from the very beginning.

KIRBY J: I do not think so.

MR GORE: There was a City of Mackay Act, your Honour, which was the genesis of the compensation network and my broad recollection is that it was not until about something like 1940 that that Act effected an amendment to the 1936 Act.

CALLINAN J: It was the first town plan, I think, for Queensland, was it not, in Mackay?

MR GORE: I think that is right, your Honour, yes. But certainly that injurious affection compensation scheme had been operative in Queensland for decades, as I am acknowledging, probably not from 1936, but before the Second World War, I would think. To go then to a brief summary of the new scheme under the Integrated Planning Act, under the Integrated Planning Act - - -

KIRBY J: This is from 1990?

MR GORE: No, from 1998. The old scheme, your Honour, applied to both the 1936 - - -

KIRBY J: I am sorry, yes. It was enacted in 1997 and came into force in 1998.

MR GORE: That is so, your Honour. Under the 1998 regime, if I could use that term, the landowner may be compensated by two alternative means. In the example that I just gave involving land which in the before case had a highest and best use for rural residential purposes, what the landowner would do is make a development application (superseded planning scheme) to subdivide the land for rural residential purposes within the requisite two-year period.

Assuming that it is a properly made application, the Council then had a choice. It could choose to assess the application under the old scheme, in which case the subdivision would almost certainly be approved, because on the example I am giving we are assuming that that is its highest and best use, therefore we are assuming that it is lawful and likely to be approved. On that scenario the landowner has lost nothing as a result of the new scheme coming into effect because the landowner has been restored retrospectively to its old rights and given a development approval which is no longer possible save for the development application (superseded planning scheme) mechanism.

Alternatively, the Council could choose to assess the development application (superseded planning scheme) under the new or, as the legislation calls it, the existing planning scheme. In that event, on the facts of this case the application would necessarily be refused because, with the subdivision application the subject of this case, it proposes minimum lot sizes which are well less than the minimum lot size which is permissible, albeit subject to the Council’s discretion, under the new scheme, so it would necessarily be refused and that would then trigger the entitlement to compensation under section 5.4.2(d).

KIRBY J: Would you remind me, from the beginning did the 1997 Act provide that it was a necessity that there be a properly made application in accordance with the Act? Was that a statutory requirement from the beginning?

MR GORE: It was, your Honour, but the feature of it which is central to this case was not added until 2004.

KIRBY J: I realise that, but what Justice Keane said was that the addition of that was part of a statutory scheme designed to prevent councils giving approval as you have just indicated could be done under the 1997 Act and that this was part of a large statutory change which was effected by latching on this added condition into subparagraph (f) into the requirement of the application which had originally been there but to which was added this provision as well as the provision to 3.2.1(10)(b) and that this is part of a scheme using that mechanism to stop councils having the facility of overriding this important new regional planning scheme which was introduced. That makes this a very simple case if that is a correct analysis.

MR GORE: Your Honour, might I say that the approach that Justice Keane took involved, as I have already submitted, a very literal approach. He simply looked at the words in 3.2.1(f). They are what I would suggest are really non-speaking words. They might on one view have the capacity to catch an application of this kind but when questions of retrospectivity arise, you do need to stand back from the single provision which is said to be fatal to a particular outcome and look for the real intention underlying that provision. Now, his Honour did not do that. Your Honour asked earlier whether there was some commission which led to these amendments. His Honour does not suggest there was. No one suggests there was.

KIRBY J: No, but his Honour derives from the statutory provisions, which we will ultimately have to analyse, a purpose which was designed to stop the very facility that you mention was there in the 1997 Act by which you could go back with the superseded scheme and get the Council to approve it. His Honour said that the purpose of the added provisions was to stop that happening, and that would fit in with an important new regional scheme designed to introduce new standards for development in this part of Queensland.

MR GORE: Your Honour, can I respond to that with a new point. It is not a new point in the case, but I have not mentioned it orally today. The real consequence of that view is that it gives this respondent Council a windfall. It gives it a windfall because it puts it in precisely the same position that it would have been in if it had not introduced the 2003 planning scheme. If the 1996 planning scheme had remained in force up until 2004 when these other amendments took place and the appellants had made an application after the regulatory provisions came into effect, there is no doubt that they would have been stopped at the point by the draft regulatory provisions, because that is an ordinary, orthodox subdivision application which this new regime, introduced by the Draft South-East Queensland Regional Plan, was designed to protect.

What the reasoning of Justice Keane overlooks it that there was this critical extra fact; the 2003 planning scheme had already done that in this local authority area. It had already made subdivision of our clients’ land into smaller lots not legally possible unless we made a development application (superseded planning scheme) and the Council elected to restore the rights that we had under the 1996 scheme.

KIRBY J: I am simply responding to your submission that Justice Keane engaged himself in nothing more than a strictly literalist approach. What I am saying to you is that that is not fair to his Honour. His Honour in his reasons said that this interpretation fits in with a view that this was an important new regional planning scheme and that a policy decision is evident in the amendment which is the effect that in the future councils will not be able to override this regional scheme. It may have the consequences you say, but so be it. That is the policy that Justice Keane saw in the statute.

CALLINAN J: The scheme need not necessarily be overridden, because compensation can be paid, and the scheme can be given full effect that the persons affected by it, assuming that your argument is right, are still entitled to compensation. I mean, the scheme is not in jeopardy - - -

MR GORE: Correct.

CALLINAN J: The Council just says, “We won’t give it to you” or “We can’t give it to you”, but compensation is an entirely different question.

MR GORE: With respect, your Honour, that is so and that is the point that I tried to get across with the last answer and perhaps I should put it differently. If the 2003 scheme had not come into effect when the draft regulatory provisions came into effect, they would then override the 1996 scheme and protect that land, inclusive of the appellants’ land, from further subdivision, that being the policy of the new draft regulatory provisions, and that would the end of the matter because there would be no entitlement to compensation under section 5.4.2 because there has been no new planning scheme and there was no entitlement to compensation under the 2004 amendments because they did not provide for compensation.

This was, some might say, a fairly heavy-handed approach, but there it was. It was stopping further subdivision and other development rights without rights to compensation. But the difference in this case is that the land in the Laidley Shire was already protected from closer subdivision by the 2003 scheme. They had got in early. They foresaw the type of change that the draft regulatory provision later introduced for the south-east Queensland region. They should pay compensation for that but they will get a windfall if the decision of the Court of Appeal is upheld because that involves saying, “Well, it’s irrelevant that as at the time the 2003 scheme came into force there was a potential right to compensation”.

KIRBY J: When was your land rezoned as rural landscape?

MR GORE: In 2003, yes, your Honour.

KIRBY J: What does rural landscape connote? Previously you were rural residential A.

MR GORE: Correct, your Honour.

KIRBY J: Presumably, that meant that you could develop it along the lines that you ultimately put in your application for.

MR GORE: That is correct.

KIRBY J: But what was rural landscape? What was that designed to do?

MR GORE: We have not troubled the Court with all of the provisions that - - -

KIRBY J: I am sure there will not be an objection if you tell us roughly what rural landscape was intended.

MR GORE: As far as subdivision goes, your Honour, the minimum lot size was 60 hectares. The appellants’ land was just over 16 hectares, so it is clear that it fell well short of the new minimum. The minimum under the 1996 scheme was 4,000 square metres, so there is a very big change there and the proposal the subject of the development application (superseded planning scheme) obviously contemplated lots which were above the 4,000 square metres. They were an average of around the 6,000 square metre mark. So the rural landscape area, your Honour, was not intended for rural residential purposes but was intended for, in effect, grazing and part of the natural landscape. There were still development rights but more restricted. What I have said is reflected in the judgment of Justice Keane and I can take your Honours to those passages later.

Your Honours, we have spoken about the choice that the Council has, ignoring for the moment the 2004 amendments, when a development application (superseded planning scheme) is made. It is the Council’s choice. The respondent is correct in submitting that an applicant has no right to compel the Council to make the choice one way or the other and there is no provision in the Act as to the range of considerations which it is intended the Council should take into account in making the choice but it is readily apparent that the underlying choice is between, on the one hand, avoiding a liability to pay monetary compensation by choosing to assess the application under the superseded planning scheme, in this case electing to approve, in effect, the application for rural residential subdivision with, on the other hand, maintaining the integrity of the new planning scheme by electing to assess the application under the new planning scheme which in this case would, as I have already submitted, inevitably lead to a refusal because it is simply legally not possible to subdivide below 60 hectares under the new scheme. So the underlying choice for councils is between paying compensation or avoiding it, preserving the integrity of the new scheme or putting it at risk.

CRENNAN J: So for two years your client has the ability to apply to the Council for compensation with what? A hope?

MR GORE: It is more than a hope, your Honour, because no one can apply or make a development application (superseded planning scheme) unless that person is a landowner whose land was affected by an adverse change at the time the new planning scheme came into force. So it is a relatively narrow category of people. There is no provision for transferring that right, as it were. You have to be the landowner at the time of – as far as the statute goes. We do not need to trouble ourselves with what could theoretically happen in an alienation case, but the statute specifically contemplates the landowner at the time of the change.

CRENNAN J: I suppose you would say whichever way the discretionary decision of the Council went, that inures to the benefit of the landowner?

MR GORE: Absolutely. If you look at all of the options, it is to the benefit of the landowner, your Honour. If the Council elects to assess under the new scheme, then there is compensation. The argument here, the respondent fairly concedes, must assume that there has been the initial reduction in the value of the land, so under the new scheme we would get compensation. If the Council were to elect to assess under the old scheme, that is in itself a very valuable right because it is no longer legally possible. It is a superseded scheme. So that is in itself a valuable right to have that assessment under the old scheme even though in some cases it might lead to a refusal. In a case like this it would not because this is a traditional run-of-the-mill subdivision application for which there is no apparent reason that one would refuse, so we would get development rights pursuant to a further subdivision of the land.

KIRBY J: I think the strength of your argument is not that you could expect the Council, after the new IPOLA legislation and the new regional planning scheme, to approve it, but that as at the moment the change was made in March 2003, you had then an entitlement to expect that you would at least have the compensation for the alteration that reduced the value of your land. You did not put your application in immediately, but you put it in within the two years which then applied. So that the question becomes whether the IPOLA legislation intervened to take away not only your right to have the old planning scheme applied to your land - that is Justice Keane’s concern - but it also took away your right to compensation.

MR GORE: Yes.

KIRBY J: You say you would look very closely at IPOLA before you would infer that it was designed to take away that valuable right to compensation which you had at the moment that IPOLA came into force.

MR GORE: That is so, your Honour.

HAYNE J: That is cast at a level of abstraction divorced from the Act which represents the departure to which I was earlier pointing. The relief you sought in the Full Court was a declaration that the development application is a properly made application for the purpose of an identified piece of legislation. That is the central question in this appeal, is it not?

MR GORE: Yes.

HAYNE J: That central question is to be resolved according to consideration of the Act rather than a priori assumptions about what would be fair or appropriate planning policies.

MR GORE: Your Honour, in substance I accept that and I think at last the penny has dropped for me as to where your Honour and I might be differing. That is still - - -

HAYNE J: I am glad you can see it because at the moment I am just trying to find out what the case is about.

MR GORE: I will do the best I can, your Honour. That relief is still the form of relief that would be appropriate if the appellant succeeds here on the footing that this Court rules that section 3.2.1 applies to the appellants’ application in its pre-IPOLA 2004 form. So that relief assumes success on the very argument that I have been mounting today and that was mounted in the two courts below.

KIRBY J: As I understand your submission - it is at a level of abstraction - you are, as it were, softening us up to looking at the particular provisions in the legislation so that we can see whether by, for example, applying those particular requirements for approved applications to a different class of case, cases without a “vested entitlement to compensation”, you could narrow its application and thereby allow you to continue with your entitlement. Now, that might be a heroic effort in the face of the legislation. All of the judges below felt you could not do that but, as I understand it, your argument to date has been to lay the ground for the pretty orthodox principle that you would look very closely at this legislation before you take away an entitlement to compensation which existed at the time the legislation came into force. Is that all that is involved?

MR GORE: That is all that is involved, your Honour.

KIRBY J: All right. I think we have got to the point where you can take us to the legislation, pleasurable a task as that is going to be.

MR GORE: Yes, your Honour. This will take a little while. Your Honours have in two volumes an annexure to the appellants’ submissions and it is volume 1 that is all I need to take your Honours to. I am conscious that your Honours will be familiar with some of these provisions already, but - - -

KIRBY J: Do not assume we are too familiar.

MR GORE: To put everything into context I will take your Honours to as much as we think is necessary to set the scene for the argument. I will start with the Integrated Planning Act which is behind tab 7 in that volume.

KIRBY J: Now, this is as at when?

MR GORE: If your Honour looks at page 31, using the pagination in the bottom right-hand corner, your Honour can see that that is as at 17 October 2004.

KIRBY J: Is that therefore the provision of the Act which applies in this case and, if so, why?

MR GORE: That is, your Honour, because the IPOLA 2004 provisions came into force in September 2004. The precise date is in the chronology - - -

KIRBY J: The 17^th, I think, in the record.

MR GORE: Yes, thank you, your Honour. So your Honours will see from page 31 that this is described as reprint No 6. That is the practice in Queensland these days, to give the reprints a number.

HAYNE J: This is the form of legislation that was in force when your clients made their application?

MR GORE: Yes, your Honour.

HAYNE J: Your proposition in part is that this form of legislation, though in force at that time, does not accurately record the law that governed the application?

MR GORE: That is a fair summary, your Honour, yes.

KIRBY J: Is there in the folder the pre-existing law, that is to say the law at the time that the land was rezoned rural landscape?

MR GORE: Not directly, and I was just about to comment on that, your Honour. It perhaps might have been useful to include it but your Honours will see that you will not be disadvantaged by its not being included because, firstly, we have included in the bundle all of the IPOLA 2004 amendments and the Court can see by going through those amendments what changes were made. Secondly, they are fairly discreet changes insofar as the changes are relevant to the issues in this appeal and it is easy to distinguish the new from the old in going through reprint No 6, so the Court will not - - -

KIRBY J: Yes, very well. We will press on. If we have a problem we will let you know.

MR GORE: Thank you, your Honour. If I could be permitted from time to time to use the acronym IPOLA 2004 or IPA for the sake of convenience. Can I deal firstly with the compensation regime. Would your Honours prefer the pagination in the bottom right-hand corner or the top?

KIRBY J: You take whichever one, as long as it is consistent.

MR GORE: I will take it from the top. That is what I used.

KIRBY J: The bottom one?

MR GORE: I took it from the top, your Honour, if that is easier.

KIRBY J: Very well.

MR GORE: So if we go to page 262 behind tab 7, section 5.4.2 is there. Your Honours have read that provision several times already, so I will not go through its terms at the moment. Section 5.4.1 is important because of its definition of “change” and “owner”.

HAYNE J: Is it the law in this form, as at page 262, that governed any question of compensation for your clients?

MR GORE: It is, your Honour. One of the important points - we submit it is important - that we make is that IPOLA 2004 did not effect any change to these provisions. This was the form that the compensation provisions took when the 2003 scheme came into force and triggered the initial entitlement and it was equally the form in which those provisions stood when our clients made their development application (superseded planning scheme).

If your Honours would go forward to page 265 in section 5.4.6 the primary provision is paragraph (a). I am taking your Honours to it because it is more than just a time provision. It reflects the fact that the six month period begins to run on the day the development application (superseded planning scheme) mentioned in section 5.4.2(b) is either “refused”, as this one would be, “or approved in part”, in other words, the landowner did not get everything that it wanted with the application, “or subject to conditions or approved both in part and subject to conditions”, the same observation can be made. Then to section 5.4.9 at page 266 just to pick up some key aspects, subsection (1) says:

For compensation payable because of a change, reasonable compensation is the difference between the market values, appropriately adjusted having regard to the following matters –

Can I pause then to submit that that is a before and after analysis of the kind that I was dealing with generally in respect of the old scheme earlier.

If your Honours go to the next page, two provisions that are relevant are subsection (3) which gives a definition of “difference between the market values” and above that subsection (1)(e) which I invite your Honours to read. It is one of the matters for adjustment. It is contemplating that under this new regime, if the Council does elect to assess under the new scheme, which is the path to compensation, that it may not be an all-out refusal which would maximise, as it were, the landowner’s compensation; it may be a partial approval which reduces the amount of compensation because it increases the after value of the land. There is still compensation payable; it is just at a smaller amount.

KIRBY J: But is this not against you because it postulates that the Council has in its power to approve, approve in part, the planning that you want, whereas the postulate that Justice Keane has propounded that the new legislation has introduced is that the Council has not got that power and therefore has lost an essential aspect of the scheme that pre-existed.

MR GORE: Your Honour, in a general sense that is true. Specifically in relation to this case it is not because specifically in relation to this case, as I have said more than once, there has to be a refusal. There is no scope for any other outcome. Whilst theoretically there may be some cases where there is a partial refusal, they are going to be rare, your Honour, because - - -

KIRBY J: That may be so, but even if they exist but rarely, they are part of the scheme. The suggestion that you put that you can divorce the permission to have the planning that was pre-existing before the supersession is removed if you cannot approve it and that therefore that is an argument against the continuation of the old scheme, which was an integrated “Approve”, “Approve in part”, “Not approve”.

MR GORE: I understand that, your Honour. But we would submit it is a small indicator the other way. It is to be remembered that the provision that we are concerned with was concerned only with subdivision. With subdivision, if you comply with the minimum allotment size, the scope for refusal is so much more limited. They are not as contentious as major development applications involving large material changes of use such as quarries or shopping centres, things of that kind.

Back at page 263 I draw your Honours’ attention to section 5.4.4(1)(a) that the respondent has referred to in its submissions. This assumes that you have got a properly made application, that it is being assessed, that you have been through the 5.4.2 process right to the end, but it is saying that compensation is not payable in certain circumstances and the Council points to this circumstance. That is largely for reply in our case, although I am happy to deal with the arguments up front. The definition of “development application (superseded planning scheme)” is at page 402, which is, using the pagination in the bottom right-hand corner, 138. It is quite a lengthy definition and might I respectfully submit that it is not a particular user-friendly definition, if I could use the contemporary jargon - - -

KIRBY J: What page is this? I am sorry.

MR GORE: Page 402 using the pagination at the top, your Honour. I invite the Court to just peruse it and then I will try to give it some additional meaning. Your Honours will see that it is divided into two parts. In part (a) it is:

for development that would not have required a development permit under a superseded planning scheme but requires a development permit under the planning scheme in force at the time the application is made -

That kind of case involves a case where under the superseded scheme the development would have been, from a town planning perspective, as of right, to use the old language. It did not require a development permit under the new scheme, only, say, a building approval, but under the new scheme does require a development permit. So what this option (a) is providing for is in a case where an as of right use has been converted into a use that requires a development approval, what the applicant does – and now I read from (a)(i):

the applicant advises that the applicant proposes to carry out development under the superseded planning scheme -

A bit of a challenge, if you like, to the Council. It says, “I propose to build this as of right development. It might be prohibited now but it was as of right under the superseded scheme”. It is:

(ii) made only to a local government as assessment manager; and

(iii) made within 2 years after the day the planning scheme . . . was adopted –

the (b) case is:

for any other development –

that is, development that would have required a development permit under the superseded scheme. The language that the definition uses in this case in (i) is that:

the applicant asks the assessment manager to assess the application under a superseded planning scheme –

Now, that is this case. Subdivision was not as of right under the superseded scheme so the applicants in their application ask the Council as assessment manager to assess the application under the superseded scheme. Then the next two requirements, (ii) and (iii), are the same as for the (a) case.

Your Honours should note that on the same page at about point 2 there is a separate definition of “development application”. It:

means an application for a development approval.

And your Honours should also note that that term “development approval” is defined at the bottom of the page. It:

means a decision notice or a negotiated decision notice that –

in effect approves development. So, it is very important to our argument to appreciate that, although a development application (superseded planning scheme) is, as his Honour Justice Keane ruled, comprehended by the term “development application”, it is nevertheless a specific type of development application which gets specific treatment under the Integrated Planning Act and it does not necessarily lead to a development approval. There is a little bit of tension between the definitions and the way in which the Act is structured because the application could lead to a refusal and so to compensation or to a partial approval and compensation or in the (a) case it does not lead to any approval at all.

In the (a) case if you have an as of right development in which you challenge the local authority you say, “I propose to build my as of right development under the superseded scheme”, if the Council elects to accept that, then you can just do it. You do not get an approval, in effect.

KIRBY J: That would not be available after the IPOLA Act.

MR GORE: Your Honour, it would be available. It will depend on the particular scheme.

KIRBY J: It would not be available in your clients’ case.

MR GORE: Our case is a (b) case and that is what the case is all about, your Honour, whether we were entitled, notwithstanding IPOLA 2004, to proceed with the (b) case, to proceed with the (b) application.

CRENNAN J: Is not your problem that (b)(i) contemplates an assessment, so it contemplates a process which is now no longer possible with the IPOLA and really with the regulations that went with it. It really precludes any assessment taking place now. I mean, the right is always a statutory right and what you have just shown us contemplates a process to be gone through which I think you conceded before is no longer possible. A refusal is the only possible outcome.

MR GORE: Your Honour, we might be a little at cross-purposes. The view taken by the Court of Appeal is that that process in (i) is no longer possible because of the draft regulatory provisions. The submission that we make to this Court is that the draft regulatory provisions do not apply to this particular development application (superseded planning scheme) because of the presumption against retrospectivity. So that the assessment is possible under the old regime. The new regime does not apply to it, as happens with any case where the presumption against retrospectivity is upheld.

HAYNE J: “Retrospectivity” is a word that is sometimes subject to a number of misunderstandings, is it not?

MR GORE: I agree.

HAYNE J: The Court looked at it most recently in Forge v ASIC [2006] HCA 44; 80 ALJR 1606, particularly at 1633, paragraph [114] with reference particularly to Chief Justice Jordan in Coleman v Shell Co of Australia Ltd [1943] NSWStRp 41; 45 SR (NSW) 27 at 30. What is the species of retrospectivity that you say is the subject of the present case?

MR GORE: Your Honour, it is what I will call the old Maxwell v Murphy species where the appellants’ rights are referable to past facts and circumstances. The appellants’ right to make a development application (superseded planing scheme) is referable to an event which occurred in March 2003 when there was a change in the planning scheme which reduced the value of the land and which constituted the first condition precedent in section 5.4.2 so that when one gets to paragraph (b) of section 5.4.2 you are already linked to that fact and intervening legislation – in this case, IPOLA 2004 – which adversely affects those rights does not apply because it involves applying legislation which is prospective only in its operation relative to a fact which has already occurred back in March 2003.

HAYNE J: It becomes necessary again to focus on the application, but we shall come to that, no doubt.

MR GORE: Yes, your Honour.

KIRBY J: You seem to be taking a bit of time to get us to the key provisions which are 3.2.1(7)(f), 3.2.1(8) and (10). You appear a little reluctant to come to those.

MR GORE: Not at all, your Honour. I am reluctant to take your Honours through so much but I am not reluctant to look at any particular provision.

KIRBY J: You press on very quickly to give us the sections that you say are relevant to your case.

MR GORE: 3.2.1, your Honours, was the next provision I was going to go to. It is at page 94 using still the pagination at the top. Note the heading “Applying for development approval”. We have just looked at that definition. Subsection (1) and, if your Honours go to the next page, subsection (7). Your Honours are now well aware that it is paragraph (f) which was introduced by IPOLA 2004. The other provisions, we accept, apply to our application but they do not cause a problem.

HAYNE J: What is retrospective about that? It does not, does it, provide that as at a past date – that is, a date earlier than the date of application – the law is to be taken to have been that which it was not. It is not that species of retrospectivity, is it?

MR GORE: No.

HAYNE J: Why is it the creation by statute of further particular rights or liabilities with respect to past matters or transactions. (f) is simply identifying what at the date of the application is a properly made application.

MR GORE: Correct, your Honour, but in the case of a development application (superseded planning scheme), because it can only be made under 5.4.2 following a paragraph (a) change, to determine whether or not it is a properly made application, it ought to be determined by reference to the date at which that change occurred, and if it occurred before the new legislation came into force, then (f) should not apply because it is then having a retrospective operation.

HAYNE J: Why? It is simply identifying what at the date of application is to be regarded as a properly made application.

CRENNAN J: The date of application is December 2004, is it not?

MR GORE: Yes. Your Honour, I will need to come back to that after I have gone through more of the provisions for your Honour to see why there is not, with respect, an intention revealed to deal with this special kind of application which is referable back to an earlier change. Your Honours should note subsections (8), (9) and (10).

KIRBY J: Now, (10)(b) was definitely added by IPOLA. Were (8) and (9) and (10)(a) there before IPOLA?

MR GORE: Yes, your Honour. (10) was replaced by IPOLA 2004 but the real effect of the new provision was (b), your Honour.

KIRBY J: That was added by the 2004 Act?

MR GORE: Yes.

KIRBY J: They are the two key provisions, are they not, that affected Justice Keane in the Court of Appeal?

MR GORE: Yes, your Honour.

CALLINAN J: Mr Gore, the effect of subsection (8), which appears to confer a discretion, seems to be completely nullified, as it were, by subsection (10). Subsection (8) appears to confer a discretion to receive and presumably to deal with in some way an application that is not a properly made one. If the manager receives it and accepts it, then it is taken to be a properly made application. Then subsection (10) says:

Subsection (9) does not apply . . .

(b) if the development would be contrary to the regulatory provisions or the draft regulatory provisions.

It seems to me that you do not need (8). I mean, (8) and (10), in effect, cancel each other out.

MR GORE: That is correct, your Honour.

CALLINAN J: Subsections (8), (9) and (10) are really totally otiose.

MR GORE: For this sort of case that is correct, your Honour. (8) and (9) still have a field of operation for a case that does not involve the draft or final regulatory provisions. So, if an application was not made in the approved form, for example, that is the (b) requirement - - -

CALLINAN J: Then it would not be something to which (7)(f) applied, would it? At any rate, it does not matter. It just seems to me to be curious drafting, that is all.

MR GORE: I know what your Honour is saying. Perhaps this fact will assist your Honour. The draft regulatory provisions do not cover all development. They only cover two particular species of development: subdivision at less than, in effect, 100 hectares and development for what is called urban purposes outside of what is called the urban footprint.

CALLINAN J: That answers the question. Thank you, Mr Gore.

MR GORE: Your Honours, continuing with the statutory regime, 3.2.3 at the bottom of page 96 your Honours will note from subsection (1)(a) and (b) that a different time is given for a development application (superseded planning scheme), 30 days for the acknowledgment notice in that case rather than 10, which is designed to give the assessment manager time to consider that choice that I spoke about earlier. Your Honours will note from subsection (1A) on the same page that an acknowledgment notice does not have to be given if three conditions are satisfied.

KIRBY J: Could I just go back to that differentiation of 10 days and 30 days. If there is really nothing much to do in the case of a superseded planning scheme, one would have thought the time would be shorter on them than on others where there are real decisions to be made. I do not quite understand the differential.

MR GORE: I will explain it, your Honour. The acknowledgment notice for an ordinary development application does not follow any assessment of the merits of the application. It is simply what it purports to be, a notice acknowledging that the application has been received, that it is, in effect, a properly made application. The requirements of the acknowledgment notice are then stated in subsection (2). If your Honour just peruses subsection (2) on that page, the Council is identifying what process the applicant then has to go through. So the Council will specify, “This is a code assessable application, you’ve got to comply - - -

KIRBY J: All right, I understand the scheme now.

MR GORE: Yes, thank you, your Honour. The next page, 98 at the bottom of the page, 3.2.5 is an important provision. It is specific to this kind of application and it is responsive to the two categories in the definition of “development application (superseded planning scheme)” that we have looked at. The (a) category is covered by subsections (1) and (2) and the (b) category is covered by subsection (3). Subsection (4) is a reference back to the (a) category that I mentioned earlier:

If the applicant is given a notice under subsection (1)(a), the applicant may start the development for which the application was made as if the development were started under the superseded planning scheme.

So I said earlier you do not need a development approval for the (a) case if you get an election from the Council under the superseded planning scheme. There is no assessment involved. It is just the Council saying, “All right, you can proceed under the old scheme. Your application doesn’t need to be assessed because it didn’t need to be assessed under the old scheme”.

KIRBY J: I will not repeat it but that seems to me to be against you because that is a facility that is not now available in your case and therefore when one is looking at how this is intended to operate. You see, it is not unknown for legislative parliamentary counsel to attach consequences to procedural steps. It is not unknown at all. That is what the Court of Appeal has concluded here, that the way they did it when they decided to cut this off was to attach it to the application process and if they do that and it is clear and valid, well, that is it. So when one is looking at that possibility and your theory of the legislation, there is some support for that theory of the legislation in the fact that after IPOLA in your case you could not go to the Council and get approval for your development. That is stopped, and therefore the inference that then arises is that this integrated scheme of election which was available to Council in the old system is not available in this case and therefore that the old system is not intended to operate now.

MR GORE: Yes. Could I respectfully remind your Honour of some of what you said in Dossett’s Case where your Honour emphasised - and I will refer your Honour to the paragraph in due course - the requirement that legislation having the propounded effect of abolishing individual rights must be clear and unambiguous, that that is a longstanding and important one and - - -

KIRBY J: Justice Keane acknowledged that. There is no question about that. The question is, looking amongst the entrails, which is what we have to do and analyse this legislation, there are important indications, I think, in the integrated way it operated before that are not now available, that this was the purpose of the draftsman.

MR GORE: Your Honour, we would - - -

KIRBY J: Anyway, you proceed to lay your ground and we will come back to discuss that after you finish. I assume you are getting close to the finish of the legislation, pleasurable though this task is.

MR GORE: There is still a little way to go but I will try to speed it up, your Honour.

CRENNAN J: Are you going to take us to transitional arrangements for development applications affected by the draft regulatory provisions?

MR GORE: Yes, I will be coming to that, your Honour. There are transitional arrangements in the draft regulatory provisions.

CRENNAN J: Yes, very well.

MR GORE: Your Honours, the next provision is at page 104.

KIRBY J: I would be grateful if you would speed it up. I mean, if our colleagues in the Supreme Court of the United States or the House of Lords could see us now, they would not believe that this is the way we have to operate.

MR GORE: I am sorry, your Honour.

KIRBY J: I know it is complicated. We just have to do it but let us do it as quickly as we can.

MR GORE: Yes, your Honour. At 3.2.15 your Honours should just note that that is the end of the application stage. There are four stages under IDAS and that is the end of the first stage. The next stage is then dealt with, your Honours, through to the notification stage which begins at page 118. I will not trouble your Honours with any of those provisions.

The decision stage is at page 124. There are a couple of provisions here which are directly relevant. At page 125 for “Code assessment”, section 3.5.4. If your Honours go to subsection (4) on the next page the special treatment given in subsection (4) to a DA(SPS) and a similar provision for impact assessment in 3.5.5 at page 128 in subsection (4).

At page 129, 3.5.6(1) special treatment again to a DA(SPS). At page 188, or 116 using the numbers in the bottom right-hand corner, section 4.1.52(3)(b) makes similar provision. If there is an appeal, the court must disregard the new scheme. Your Honours, just some other general background provisions that you need to be aware of. I can be quick about these. Commencing at page 30, section 1.3.2, the five kinds of development, with (d) and (e) being the most common. They are defined themselves in section 1.3.5. Your Honours need not worry about the definitions themselves. Section 3.4.2 at page 118 and subsection (1)(a) provides the notification stage applies to impact-assessable development.

If I could now take your Honours to the amendments inserted by IPOLA 2004 starting at page 62. This is the primary purpose of the amendment, Part 5A dealing with regional planning in the south-east Queensland region. If your Honours would note, I will just use the last two numbers since the 2 was always there, 5A.1, 5A.2, at page 64, 5A.10, the key elements in 5A.11. 5A.12 we need to pause to look at. It deals with what I will call the final regulatory provisions. Subsection (2) is the most important with paragraphs (d) and (e) being the more important of those. They may “regulate development by, for example, stating aspects of development that may not occur”, which is a form of prohibition and is relevant to the section in the DRP that we are concerned with.

KIRBY J: I am sorry, which subsection is that?

MR GORE: Subsection (2)(d), your Honour. That is different from the scheme of the legislation generally where planning schemes cannot prohibit development. That is section 2.1.23, which is not in that bundle but I will provide your Honours with copies later. Then 5A.13 deals with the preparation of the draft regional plan which was the step involved here. Section 5A.14(1)(a) with its publication in the Gazette and I will skip a few provisions and take your Honours to 5A.24 which deals specifically with the draft regulatory provisions. Under subsection (1) they have effect when the draft regional plan notice is given. The next page, subsection (5)(b), they may include their own transitional arrangements. Other amendments made by IPOLA 2004 in the Chapter 3 part of the Act that your Honours should be familiar with, in addition to those that we have looked at, are at page 125.

KIRBY J: Just before you go there, go back to 95 and 96 now that we have got this very unusual and new provision in 2.5A.12(2)(d) saying that certain development may not occur. Does that not make (7)(f) and (10)(b) clearer as part of a scheme that was to operate thereafter following IPOLA 2004 to carry into effect, where relevant, the kind of prohibition which was intended and indicated in 2.5A.12(2)(d) which you correctly pointed out is something new and different?

MR GORE: Your Honour, that is so, but with the major qualification that all of these provisions have as their purpose controlling development, not denying a right to compensation, so that it is the silence of all of these various provisions on the special cases, like those of the appellants involving a potential right to compensation, that is at the heart of this appeal. These provisions are concerned with prohibiting certain kinds of development and that objective can be achieved consistently with maintaining the appellants’ entitlement to compensation. It was not the intention of the provisions to by a side wind, as it were, abolish a right to compensation.

HAYNE J: Well, Mr Gore, it comes to this, does it not. You acknowledge that 5.4.2 is the form of the Act that governed your clients’ right to compensation. True?

MR GORE: True, your Honour.

HAYNE J: You conceded below and have not yet departed from the concession that an essential element of your right to compensation is that there should have been a properly made application. Is that right?

MR GORE: Yes, with the qualification.

HAYNE J: You say that a properly made application is one that satisfies conditions 3.2.1(7)(a) to (e) and it is not necessary to satisfy paragraph (f)?

MR GORE: In a case where the application arises out of a change which occurred before (f) became the law, your Honour.

HAYNE J: And you have yet to explain, at least in a way that has made an impact on me, why (f) was not engaged. That is the central point in the case. That was the central point in the case in the Court of Appeal. Can we come to it in some point in your argument.

MR GORE: Your Honour, could I hand up copies of Maxwell v Murphy. I did not include Maxwell v Murphy in the list of authorities.

KIRBY J: Yes. What are you taking us to in this familiar case?

MR GORE: Sir Owen Dixon’s judgment, your Honours, at page 267. I am seeking to respond to the questions of your Honour Justice Hayne. In a passage which is often cited by this Court:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty

and I emphasise those words, “with reasonable certainty” –

to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

That is how it is relevant, your Honour. This is a substantive right. A potential right to either compensation or to an assessment under a superseded planning scheme is a substantive right. No one would describe it as a mere matter of procedure and it has been - - -

HAYNE J: Be it so, the intermediate step in your argument which I had understood to be the central point of the litigation in the courts below was the proposition that this application made by your clients was to be treated as a properly made application. Why and on what basis do you ignore a provision of the law that was in force at the time the application was made? Is the only answer you make to that Maxwell v Murphy?

MR GORE: No, your Honour. Even in Dossett’s Case it is accepted – and I will come to Dossett’s Case in due course – that once the presumption against retrospectivity is held to be applicable to a statutory provision otherwise in force, what must be applied is the legislation in force before that new amendment or repeal occurred. You disregard it as if it was not there in the statute books. That is how it operates here, your Honour.

KIRBY J: The problem though is that the addition of (f) and (10)(b) are arguably the carrying into effect of a new scheme designed exceptionally for a regional plan for a particular part of Queensland that needed particular attention. Therefore, you are either asking us to read those subparagraphs out of the Act or you are asking us, as I think Justice Keane pointed out, to read into it words such as “except in the case where there is an already properly made application”, or in some other circumstance. The words are not there, that is the problem. Add to that the problem that compensation that was formerly provided was in part in the power of the Council to protect its coffers because it could in an appropriate case give whole or partial agreement to the planning that you wanted to go ahead with and now it cannot, so that the whole scheme does not seem to work on your hypothesis.

MR GORE: Your Honour, perhaps another dimension that will assist your Honour in understanding where the injustice in this outcome for the appellants lies is this. Your Honours have seen the terms of section 4 in the draft regulations which is at the heart of the case. It, in effect, says that subdivision at less than 100 hectares shall not occur, but then it creates an exception. It says that subdivision can occur at less than 100 hectares if the land was zoned or designated for rural residential purposes at the time the regulatory provisions took effect and the application for subdivision is made within two years of the date that the provisions took effect. In other words, the prohibition against subdivision in rural areas was not a blanket prohibition as the Court of Appeal below tended to assume. It was a prohibition which had that important exception that if you were already in the rural residential zone and had the right to subdivide, then you had another two years within which to make that application.

KIRBY J: This was before IPOLA?

MR GORE: No, this follows IPOLA. This is part of the regulatory provisions introduced by IPOLA. That can be compared to what is involved with the development application (superseded planning scheme) which involves exactly the same time period of two years. If the Council had elected to assess the application under the old scheme, it would be assessing the application as if the land was contained in its old rural residential zone just as the draft regulatory provisions accepted could occur and creating those lots within that two-year period.

KIRBY J: But in circumstances where the hypothesis that previously existed, namely that it could give planning approval in part or in whole to the development, is removed by IPOLA 2004.

MR GORE: But restored by this exception.

KIRBY J: That is the question. In the face of the provisions that you have taken us to, is it permissible because of the presumption against some degree of retrospective operation for the Court to read into the legislation provisions which effectively change or undermine what appears to be the scheme of the legislation, which is to say this is a special part of Queensland that is going ahead at a great rate, we are not going to allow these developments and therefore the hypothesis of the compensation of the scheme is abolished.

MR GORE: It is that last step that you would have expected the legislature to have spelt out.

KIRBY J: That is the essence of your argument. You say if the legislature of Queensland was going to take away a citizen’s entitlements to compensation which had existed for some time, it would have been done in clear and express language and there is a degree of ambiguity in this language. That is what you have to say.

MR GORE: It is what we say, your Honour.

KIRBY J: The question is whether there is that degree of ambiguity, given what at least arguably is the large scheme of IPOLA 2004.

MR GORE: I agree, your Honour. That is a fair summary of what the case is all about.

KIRBY J: Are there any other provisions of the Act that you need to take us to before you develop any arguments you want to address to those provisions?

MR GORE: Just one, your Honour, section 6.4.1 which is the only transitional provision – this is at page 341. Using the pagination of the annexure in the bottom right-hand corner it is page 125. It has been put in out of place.

KIRBY J: Yes, we have that.

MR GORE: It is subsections (2) and (3) which add the regional plan as something to be considered for what is called a transitional application. If anything, it is against me, your Honour, in the sense that it is reinforcing the importance of the regional plan but the part about it that is positive is that there is nothing in that transitional provision which deals with compensation which says anything about compensation. It is another provision where you would expect to find something said and it is the silence that works in the appellants’ favour.

KIRBY J: Of course, all of this is written against a background which was explored in Durham Holdings in New South Wales that in the case of the States there is no constitutional provision that protects people from the acquisition of choses in action or property so that we come at the problem without any constitutional protection for your clients.

MR GORE: That is correct, but against the background of two well-established principles of this Court. On the one hand, a provision of a statute which is going to materially change valuable property rights without making any provision for compensation needs to do so in clear terms and, secondly, and it is the converse of the first, a provision which is going to deny an existing entitlement to compensation must do so in clear terms. We have both of those circumstances here. It is almost as if there is a logarithmic - - -

HAYNE J: An existing right to compensation?

MR GORE: An existing right or potential right to compensation, yes, your Honour. It is still a valuable property right. Even though it is only a potential right, it is a valuable property right.

CALLINAN J: The potential goes to value. The fact that is potential and not certain may go to value, is that not right?

MR GORE: The ultimate value in a sense is unimportant, your Honour.

CALLINAN J: I know that but the fact that it is only potential does not deny it value, it just may reduce its value. Something that has potential has not got the same value as something which is certain.

MR GORE: Of course, your Honour. Of course.

KIRBY J: You can get valuers to value it.

CALLINAN J: Yes.

MR GORE: Yes, and I use the word “potential” to recognise that there are other conditions to be satisfied before the right is fully crystallised, but it remains a valuable potential right.

CALLINAN J: Somebody would pay more for the land because it has that potential than a purchaser would pay if it had no potential.

MR GORE: Absolutely, your Honour.

KIRBY J: If you press on with the structure of your argument beyond what you have already said in your written submissions. Do you wish to develop, for example, reference to the Acts Interpretation Act or to the common law principle? I think we are pretty familiar with the common law principle.

MR GORE: I accept that.

KIRBY J: And it is an important protection. It has to be given more than lip service.

CRENNAN J: Just before you do, were you wanting to rely on draft regulation No 4?

MR GORE: I was going to take the Court to that.

CRENNAN J: I would be interested to know how you say it applies to your clients’ situation.

MR GORE: Not directly, your Honour. I am not suggesting that.

CRENNAN J: What use do you want to make of it?

MR GORE: It is the analogy, your Honour. It is the analogy that can be drawn between the case that is specifically provided for in 4(3)(c) and which we unsuccessfully argued before the learned primary judge applied to us, and that is not being reopened here. But it us the analogy I drew earlier, your Honour. There is no blanket prohibition to rural residential subdivision. So that the concern about the policy that Justice Keane may have referred to has to keep in mind that, as you would expect, when something so dramatic as these new provisions are introduced, there are not only transitional provisions but there are some exceptions to severe prohibitions on development rights. Your Honours, can I say about section 6, if you are looking behind tab 10 at the draft regulatory provisions, they are Part G at page 74 - the pagination is at the bottom - to section 6 which is in the right hand column of page 75 - - -

CALLINAN J: Sorry, Mr Gore, I missed you. Whereabouts was this?

MR GORE: Your Honour, at pages 74 and 75 of the document behind tab 10.

CALLINAN J: Yes, thank you.

KIRBY J: Yes. It is page 75 in this booklet.

MR GORE: Right-hand column, section 6. Again Justice Keane relied fairly heavily on this. We say that the situation is a bit like Dossett’s Case where section 6 is not an exhaustive statement of the range of development applications to which the draft regulatory provisions do not apply. It certainly expressly excludes the development application made before the day the provisions came into effect, but it leaves scope for operation of the general presumption against retrospectivity for a case like ours. If it wanted to exclude all development applications, it could have used the word “only” – “Only a development application made before the day these provisions took effect is excluded from the effect of them”, something to that effect.

Your Honours, in our submissions in paragraph 1 we did identify as the first issue whether there was a potential right that is preserved by section 20 of the Acts Interpretation Act. On one view it is not strictly necessary for the appellants to come within section 20 if the presumption against retrospectivity applies, but it still remains important to consider that first issue because it is important to a proper understanding of the nature and quality of the rights which the appellants contend they had.

HAYNE J: To what provision of what Act do you seek to apply section 20 of the Acts Interpretation Act?

MR GORE: We seek to apply section 20 to section 3.2.1(7)(f) and 3.2.1(10)(b).

HAYNE J: No, that will not do. Section 20 is concerned with repeal or amendment, is it not?

MR GORE: Yes.

HAYNE J: Neither of those is a repeal or an amendment.

MR GORE: It is an amendment, your Honour.

HAYNE J: To what Act are you seeking to apply section 20? Surely it is the amending Act.

MR GORE: Your Honour, just so we are not cross-purposes, section 20 applies when an Act is amended. The two provisions in IPA which I referred to were amended by the insertion of those provisions in IPOLA 2004. Therefore, if section 20 applies it means that those amendments made to the Integrated Planning Act do not apply to the right which had been acquired by the appellants before those amendments were made.

HAYNE J: So is it section 20(2)(c) that you say is engaged?

MR GORE: Yes, your Honour.

HAYNE J: And the right that had been acquired, accrued or incurred under the Act before amendment was what?

MR GORE: It is described in paragraph 35 of our submissions on page 9, your Honour, which I should probably slightly amend so that there is no confusion, to have the processes appropriate to a DA(SPS) that were in force before IPOLA 2004 amended the Integrated Planning Act.

HAYNE J: Does it capture the submission to say to have the processes appropriate to a DA(SPS) in force at a time before the appellants’ application being the time before the amendment?

MR GORE: That covers it, your Honour, yes, because the right that we are talking about is a right that arose back in 2003.

HAYNE J: And is a right that arose before the application was made.

MR GORE: Yes, your Honour, necessarily. In every case under 5.4.2 you cannot go to paragraph (b) unless your right has arisen under (a), so it is a necessary consequence of the statutory structure.

KIRBY J: If you had got your application in immediately after the change in the zoning of the land, would that have altered the entitlement that you would have had, in your submission, under the legislation?

MR GORE: It is common ground that it would have given the appellants the right to proceed down the 5.4.2 path without interruption by the draft regulatory provisions or IPOLA 2004, and indeed the - - -

KIRBY J: And that because at that time there would be no question that you had a properly made application?

MR GORE: Correct.

KIRBY J: And that you had lodged it and it was under way at the time of the IPOLA legislation?

MR GORE: Yes, and, your Honour, it is also, as I understand it, common ground that that right continued beyond IPOLA 2004, beyond September 2004 up to the date in October 2004 when the DRP came into force, because that new provision, 3.2.1.(7)(f), spoke about something which did not exist at the time. It spoke about the draft regulatory provisions which did not exist at the time, and this is another one of our points that a reader would pick up the Act as amended and say, “Well, this is interesting but what does it mean?” You will not know until the draft regulatory provisions come into effect. It is not as if the amendment said, “Be warned landowners, these draft regulatory provisions may disentitle you to compensation arising out of a change to a planning scheme back in 2003”.

KIRBY J: I think it is too late, especially in this area or the tax area, for us to introduce a “be warned” principle.

HAYNE J: You cast the relevant right as a right under 5.4.2, do you?

MR GORE: I do, your Honour, yes.

HAYNE J: Not as a right under 3.2.1?

MR GORE: Under both. I am indebted to your Honour - - -

HAYNE J: Let me focus on 3.2.1. Do you say that there was a right to have an application determined under 3.2.1 without regard to (f)?

MR GORE: Yes.

HAYNE J: That must be so in the case of every amendment that is ever made to any provision, and it engages the proposition which Chief Justice Jordan referred to in Coleman v Shell [1943] NSWStRp 41; 45 SR (NSW) 27, particularly at 30 to 31, that an Act - his Honour says:

It is not retrospective because it interferes with existing rights. Most Acts do.

That seems to be the proposition for which you contend.

MR GORE: Absolutely not, your Honour. This is not a case where it is being contended that there is a preservation of a range of general rights, notwithstanding the repeal or significant amendment of a statute. On the contrary, it is a case where a narrow range of people are affected, only landowners whose potential entitlements under 5.4.2 have been triggered and only in respect of continuing down the 5.4.2 path. It is not saving some general provision, your Honour, of that kind.

KIRBY J: I think we understand that now. You got to paragraph 1 of written submissions and I hope you are not going to proceed through it paragraph by paragraph. You can assume we have read the written submissions and will read them again.

MR GORE: I wanted to take your Honours to the decision in Temwood Holdings which is the first case on our list.

KIRBY J: What is this case cited to establish?

MR GORE: To establish that the appellants did have a right within the meaning of section 20(2)(c) of the Acts Interpretation Act when IPOLA 2004 came into force.

KIRBY J: Was this the Western Australian case?

MR GORE: It was, your Honour.

KIRBY J: Does not Justice Keane make a point that in that case, as in the former Queensland legislation, there was an accrued right to compensation for injurious affection as distinct from, as he puts it, a right to make a properly made application to set the process in train?

MR GORE: I do not believe so, your Honour. Indeed, as we have said in our outline, the features of this case that we rely upon here were overlooked by us and by everybody else at the level of the Court of Appeal. This case was referred to but on a different point.

KIRBY J: Yes, very well. You take us to the point you want to establish.

MR GORE: Your Honours, if we could first go to the judgment of Justice Gummow and your Honour Justice Hayne which commences at page 61. I am sorry, the relevant part that I wanted to take you to is at 61. Before I go to the passages can I just give a very brief overview of the case. The case arose out of the reservation of foreshore land in Western Australia for public purposes back in 1963 at a time when there was an entitlement to compensation for injurious affection of the kind that we are still concerned with in this case. The issue for this Court was whether a condition which had been imposed by the Planning Commission on applications made many years later after the land ownership had changed and which required the new landowner, Temwood Holdings, to in effect dedicate the foreshore reserve free of compensation to the commission or the Crown was a valid planning condition or whether it was outside proper planning purposes.

This Court by majority held that the condition was valid and in dealing with that central question the majority looked at an anterior question whether Temwood, the applicant, had a statutory right to compensation under the compensation provisions arising out of the initial injurious affection. The majority held for slightly different reasons, but the differences do not matter to our argument, that Temwood had no subsisting right to compensation but in doing so the majority expressed the view that the original landowner back in 1963 could well have had a right which was protected by the Western Australian equivalent of our section 20, and that is the part that we want to rely upon. We want to rely upon it - - -

KIRBY J: It seems a little dangerous to go into this case, given that the legislation is different and that the answer to this case has ultimately to be found in the four corners of the Queensland legislation applicable. Is there some general proposition which is stated in the joint reasons of Justices Gummow and Hayne which you say is helpful to you in this case?

MR GORE: I do and I can quickly take the Court to it in a moment, but can I just foreshadow, your Honour, that one of the significant features of this case is that to the extent that the majority thought that the original landowner would have had a protected right or privilege, this case is a stronger one, because what their Honours were saying in Temwood Holdings was that if the entire compensation right had been repealed, then the right would have survived that repeal. We submit that this case is stronger because the compensation right was left untouched by IPOLA 2004 and it has only been denied by the combined effect of 3.2.1(f) and section 4 of the regulatory provisions. It is a heavily disguised way of affecting somebody’s rights. The key passages in the judgment that I have taken your Honours to are 79 and 80. Then in 81 section 11 of the Town Planning Act (WA) is set out and your Honours will see that it provides for much the same as section 3.5 of the 1990 Queensland Act or the earlier 1936 Act or section 5.4.2(a) of IPA.

Then in paragraph 82 your Honours will see that that section needed to be read with section 36 of a different Act, the Metropolitan Region Act, which included extra conditions on the entitlement to obtain compensation. If your Honours would look at subsection (3) which is substantively set out at the top of page 63, your Honours will see that paragraph (b) provided for a very similar situation to what is provided for in section 5.4.2(d) because it contemplates that the entitlement to compensation in that case does not crystallise unless there is either a refusal of a development application or an approval “subject to conditions that are unacceptable to the applicant”, so there is a good analogy with 5.4.2(d). Subsection (5) which is then set out next is similar to section 5.4.6 of the Queensland Act.

Then at page 67, towards the bottom of that page, under the heading “Right to compensation?”, their Honours dealt with what was called a threshold issue as to whether Temwood did or did not have a right to compensation. The key passage for my purposes, your Honours, is in paragraph 96 which I invite the Court to read. Your Honours should note from footnotes (135) and (136) that your Honours Justice Hayne and Justice Gummow thought that Dossett’s Case, Mathieson v Burton and Esber were relevant and we respectfully submit they are relevant here as well. Your Honour and Justice Gummow went on to ultimately hold that Temwood Holdings did not have a right to compensation. I do not need to trouble this Court with the reasons for that, but the conclusion is at paragraph 109 at page 72.

In the judgment of Justice McHugh a similar view about the Acts Interpretation Act is expressed in paragraph 31. If the Court could start at page 45 with paragraph 30, his Honour spoke in that paragraph from the fourth line about:

“Liberty” or “expectation” rather than “right” is the description that best fits the entitlement of such an owner.

But ultimately his Honour thought enough for the Western Australian equivalent of section 20 perhaps. His Honour pointed out in paragraph 31 that the:

reservation of the foreshore Reserve conferred no right in a Hohfeldian sense on the owner of the Land at the time of reservation.

We have given your Honours two other cases where the courts have distinguished rights in a Hohfeldian sense in this context. The judgment of Justice Windeyer in Mathieson v Burton and of Justice Cook, as he then was, in a 1974 New Zealand case. So it is a well-accepted notion for these purposes.

KIRBY J: His Honour goes on to refer to section 11 of the Interpretation Act (WA). Is that the provision equivalent to section 20?

MR GORE: Yes, your Honour.

KIRBY J: I am looking at line 6 on page 46.

MR GORE: Section 11 is the Town Planning Act provision that - - -

KIRBY J: I am sorry. What is the provision of the Interpretation Act (WA)? Where do we see that?

MR GORE: I think it is referred to in the other judgment, your Honour. I am indebted to Mr Hinson. It is paragraph 96, your Honour, on page 68. Yes, it is referred to in the other - - -

KIRBY J: Section 37(1)(c)?

MR GORE: Section 37(1)(c), yes.

KIRBY J: Yes, but I think Justice McHugh was referring to that section.

MR GORE: As the section that would create the privilege, absolutely, your Honour, but what he is saying when he refers to section 11 on page 46, he is saying if the fundamental right to statutory compensation was lost with the repeal of section 11, the original owner had a sufficient right perhaps to continue with the process and an assessment of an entitlement to compensation because of the value of the right. I repeat, your Honour, if you repeal the compensation provision and such a right survives, surely the case is stronger if the compensation provision is untouched by the amending Act that is indirectly negating or abolishing that compensation right. In Dossett’s Case, which is case No 3, this case is - - -

KIRBY J: What do you refer to this case to establish - the same point?

MR GORE: The same point insofar as the judgment of Justice McHugh is concerned but also as an example of the case where this Court regarded transitional provisions which one might say, with all respect, on their face appeared to cover the field, as not covering the field. It has to be recognised that the Acts Interpretation Act (WA) had a special provision which is not in the Queensland Act, section 32(7), which is set out in the headnote from the fourth line – sorry, that is the wrong one, section 37 of the Acts Interpretation Act is what I need to take the Court to. At page 5 in paragraph 7 there was that special provision in Western Australia which did feature in the judgments but 37(1) your Honours can see in paragraph 6. What had happened here was there had been an application for leave to commence personal injuries proceedings which had not been determined by the time a 1999 amendment Act came into force.

The amendment Act spoke of proceedings which had been commenced or for which leave had been granted and the argument was that that covered the field and that therefore Mr Dossett could not proceed with his application for leave, but this Court held otherwise, and Justice McHugh on page 6 in paragraph 11 said about five lines in that the amendment provision:

It has nothing to say about whether the right to apply for leave may continue.

So he has in mind section 37(1) when his Honour makes that statement. He then does at the top of page 7 go on to deal in any event with 37(2), but 37(1) was attracted, his Honour thought. Then at page 8 - - -

KIRBY J: I notice that in my reasons in that case, I listed some factors that favoured the submission of the appellant and some factors that favoured the other conclusion, and then reached a view. Is that not what we will ultimately have to do in this case?

MR GORE: Yes, your Honour.

KIRBY J: Unless there is some statement of general principle here that is useful, how does it help for us to go to a series of cases where the Court was dealing with different legislation?

MR GORE: For statements of principle could I just direct the Court’s attention to page 8, paragraph 21, just the first four lines, and in your Honour’s judgment to page 24, paragraphs 79 and 80.

KIRBY J: Yes. We will have a look at those.

MR GORE: Yes, and at 25 to 26, paragraphs 84 to 86. Can I respectfully submit that what your Honour said at the concluding part of paragraph 86 is relevant to this case where your Honour spoke of:

It lessens the risk of the abolition of the rights of individuals by oversight, accident or mistake . . . In many areas of the law, not least in amendments to and repeal of legislation, it is easy to abolish established rights without intending to do so.

That is what we submit this case is all about.

KIRBY J: I think Justice Keane referred to some old cases that said that and he had that in his mind when he was looking at this; is this oversight, is this a mistake? He concluded not, but I do not think it is a new principle.

MR GORE: It is not and to focus then on Justice Keane’s judgment it is our submission, your Honours, that he did not look at all of the indications that there was no intention to abolish the special right which we had already acquired. We have sought to set out those indications in the submissions at page 15 in paragraph 52 and following.

KIRBY J: Yes, we have those. There is no need for you to repeat them.

MR GORE: No, your Honour.

KIRBY J: Is there anything else that you have to deal with orally?

MR GORE: I do not think so, your Honour. I wanted to supplement the authorities with the decision of the House of Lords in Plewa.

KIRBY J: Is there any general principle that you would derive from the series of cases that have recently in this Court looked at this issue? Is there anything that, as it were, you get out of an aggregate of the cases different from the particular passages you have referred us to?

MR GORE: Your Honour’s own judgment in Dossett has a summary that answers that question, your Honour. It talks about “the Court’s increasing insistence” or words to that effect “on clear and unambiguous terms”. So the principle is becoming stronger rather than weaker.

KIRBY J: I think I saw in Dossett that I suggested that that was a way of making sure that Parliament is rendered accountable insofar as it does take away established entitlements but it has to do it clearly so that it is answerable in the democratic way that Parliaments are intended to be.

MR GORE: That is so, your Honour.

KIRBY J: One might say that in a case of property development that is not the sort of matter that would agitate a lot of enthusiasm at the hustings but the point of principle remains.

MR GORE: Yes.

KIRBY J: What are you taking us to this House of Lords decision for? The case is Plewa v Chief Adjudication Officer [1995] 1 AC 249.

MR GORE: Yes, your Honour. It had some complicated amendment provisions which in the end the House of Lords resolved in favour of Mr Plewa’s widow by applying the presumption against retrospectivity and by applying the English counterpart to the Queensland section 20 partly because of the unfairness of a contrary result. The old provision, section 119, was more favourable than the new provision and the House of Lords specifically acknowledged that it would be unfair to adopt - - -

KIRBY J: We will have a look at that, unless there is some particular passage you want to take us to. Is there a particular paragraph?

MR GORE: I will just mention 258C, and 259H to 260A.

KIRBY J: Yes, very well, we will look at that. Anything else?

MR GORE: One final thing, your Honour. If your Honours would go to page 15 of our submissions, just so it is clear, would your Honours insert in subparagraph (c) at the top of that page, after the reference to “DA (SPS)” in the third line, that is, in the expression “that a DA (SPS) was not intended”, would your Honours insert before the word “was” the following: “which was referable to a change that occurred before the DRP took effect”.

KIRBY J: Yes.

MR GORE: I can see my bell is ringing, your Honour, so I will take my seat.

KIRBY J: Yes, thank you for your assistance, Mr Gore. Yes, Mr Hinson.

MR HINSON: Can I trouble your Honours firstly to take up Maxwell v Murphy again, to the page to which my learned friends referred your Honours, page 267.

KIRBY J: The passage that was read to us?

MR HINSON: Yes, the passage commencing on the first paragraph on that page, “The general rule of the common law”. It was the second sentence that I wanted to direct your Honours’ attention to, the one that says:

But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption.

Here one could accept that there was a right to make a development application (superseded planning scheme) in respect of the past event, the change in 2003 to the planning scheme. That right is unimpaired by any of the amendments. In fact that - - -

KIRBY J: You are saying this with a straight face. It is unimpaired but it is worthless.

MR HINSON: It was a right which was in fact exercised. What occurred by virtue of the amendments relates to the law regulating the manner in which the enjoyment of that right is to be secured, and it effected that by, in a particular case involving development contrary to the DRP, prohibiting the assessment and decision of such an application.

KIRBY J: It is a very elliptical and roundabout way of taking away a very substantial entitlement which the appellants would have been entitled to assume they had before that provision was inserted.

MR HINSON: Yes, and like all statutory rights it was subject to change at any time, and they could have no confidence that it would continue.

KIRBY J: That is true, but when you take away substantive rights or to have a compensation entitlement considered, you would normally expect that a Parliament would do that with a fair degree of clarity.

MR HINSON: And my submission is that it has been done here by striking at the requirements for a properly made application by the amendment to section 3.2.1(7) and the consequences that flow from that in terms of inability to assess and decide the application. In short, it has simply chosen one part of an existing statutory scheme at which to attach an additional consequence knowing that that consequence will flow through into other parts of the statutory scheme.

KIRBY J: Can you say anything from your position as representing the Council about the overall scheme of the new regional plan and how it was intended to introduce a new and exceptional scheme within the 1996 Act?

MR HINSON: There is only what appears, for example, in the explanatory notes which I do not think my learned friends took you to but they are relevantly brief, I think.

KIRBY J: Is there anything in that coloured brochure that - - -

MR HINSON: They are, and they are found behind tab 9.

KIRBY J: Was this part of the record below or is this simply put before us for what appears on page 75? Was this in the record below or not?

MR HINSON: No, it was not, your Honour.

KIRBY J: It was not. Well, I do not want to go into new evidence.

MR HINSON: The explanatory notes are in the material annexed TO the appellants’ submissions in this Court.

KIRBY J: Yes, but this coloured brochure - - -

MR HINSON: I am sorry, no, your Honour. I am looking at tab 9 which are the explanatory notes for the IPOLA Bill 2004.

KIRBY J: Yes, are there anything in those that - - -

HEYDON J: It is not a question of new evidence, it is a question of travaux preparatoire presumably permitted under the Interpretation Act (Qld).

MR HINSON: Yes, I am sorry. I did not realise that your Honour the presiding Judge was talking about - - -

KIRBY J: I think we are at cross-purposes. I thought there might be some grand scheme that was explained and proclaimed in the colourful brochure which is the sort of thing governments tend to put out and that might not have been in evidence below. That is behind tab 10.

MR HINSON: That is the draft plan, yes.

KIRBY J: But the document behind tab 9 is simply the ordinary old explanatory notes.

MR HINSON: Yes.

KIRBY J: What is there in that that helps - - -

MR HINSON: Nothing of any great moment, your Honour. All I was doing was responding to your Honour’s question as to where one might gather some impression about the overall scheme of things. There is some brief but really not helpful reference on the first three pages of the explanatory notes, and I do not ask your Honours to look at them now. Your Honours can peruse those at your leisure. But otherwise one sees from the provisions discussed this morning, for example, 2.5A.12(d), the provision that says that the draft regulatory provisions may prohibit development, paragraph (e) in the same provision that says the transitional provisions may be made.

CALLINAN J: Mr Hinson, do the explanatory notes say anything at all about compensation?

MR HINSON: No, they do not.

KIRBY J: So the position is that neither the statute was clear about it, nor the explanatory notes were clear about it, nor are we provided with any ministerial speech which informed Parliament that the purpose of the legislation by this annexure to an application form, or a right to make a properly made application, was taking away citizen’s entitlements that pre-existed to compensation or expectation that they would have that processed in the normal way?

MR HINSON: No express mention of compensation, but the amendments are made against a background where the legislation requires a development application (superseded planning scheme) to be made as an element in the right to claim compensation and the legislation imposes a new qualification or condition upon a development application in terms of requiring it to be not contrary to the DRP, to be properly made and therefore capable of being assessed and decided.

KIRBY J: You could take out your magnifying glass and look at that over and over again and you still would not, as an ordinary reader of the legislation if that is the test, assume that this was altering substantially compensation expectations that pre-existed.

MR HINSON: Perhaps not, but the ordinary reader might have difficulty, in any event, with reading this Act. It is not the easiest Act to read. In one of the cases I have referred to it was remarked upon very critically by Justices Davies and Moynihan in the Court of Appeal as representing a depth of drafting incompetence which was often only found in the stamp duties legislation. But be that as it may, it is a technical complicated piece of legislation. Those familiar with it would, I submit, readily understand that by making it a new condition of the making of a development application that compensation rights were being affected because making a development application was a necessary component of the statutory scheme allowing for compensation. That was obvious. Everybody can read 5.4.2 and see that an application of that kind has to be made as one of the elements of making a claim for compensation.

Your Honours, having listened to the oral argument this morning, I did not intend to say anything other than what I have said about Maxwell v Murphy and to respond to your Honours’ questions but otherwise to rely upon the written submissions unless there was some further question which your Honours have upon which I might - - -

KIRBY J: What is your answer to Mr Gore’s series of cases in this Court in recent times? He has given us three cases where the Court has been fairly strong in its view of provisions such as section 20 of the Interpretation Act and effectively said to the Parliaments of Australia, “If you’re going to take away established entitlements or expectations, you’ve got to do that clearly or otherwise we won’t assume that you’re doing it”, because if it is going to be done elliptically by reference to an application form and right to make a properly made application, then it is just possible that that will not really work the accountability that is at the heart of the democratic assumptions of the Parliaments of the country.

MR HINSON: Two things, your Honour. First, it is my submission that the provisions here are clear in both their meaning and operation or effect and, secondly, that one cannot stretch the principles so far that one requires an express provision identifying the operation of the legislation with respect to section 20 of the Acts Interpretation Act. That would be requiring too much. The effect really of the appellants’ submissions is that there is no express provision here and therefore, one must and can only infer something in particular, an intention to preserve rights. With respect, that does not give all of the usual principles of statutory construction their full scope and operation. From an absence of an express statement it compels a conclusion that the exact opposite of the express statement is intended and that is not the way in which courts have proceeded in dealing with questions of statutory interpretation. The intention need not be - - -

KIRBY J: Do you want to say anything about Temwood or about Dossett?

MR HINSON: In terms of Temwood, your Honours will have seen in my written submissions that I proceed on the basis that there was relevantly a right to make an application, that that right was unimpaired. I then go on to make the submission insofar as one might say that there is a right to have a particular process or the law enforced at a particular time applied. That right can only be acquired or accrued for section 20 purposes when the application is made. That did not occur here until December 2004 at which time 3.2.1(7)(f) and the draft regulatory provisions were in force. So that, on the assumption that that was capable of being right, it had not been applied or incurred prior to the amendment taking place. The amendment therefore operated upon it and applied to it.

KIRBY J: Do I understand Justice Keane correctly to say that he accepted the principle in Temwood, of course, but that the point of distinction was that the legislation in Queensland was one step removed from a right. It required a procedural process that put in train a consideration by the Council wherein they had entitlements to institute entirely or in part acceptance of the variation from the planning scheme, which is now gone in this case, or to pay compensation and that therefore the legislative background against which Temwood was expressed was different from the legislation in Queensland.

MR HINSON: Yes. When his Honour, for example, spoke about the only possibility of a liability in the Council to pay compensation accruing when they made a particular decision upon an application, that is to decide it under the existing scheme, his Honour was in one sense saying that until that point in time one could not have a right to compensation because the correlative liability to pay it had not accrued and it lay within the Council’s power to determine whether the liability would accrue or not, depending on which choice it made when it received the - - -

KIRBY J: But is it fair to say, as Mr Gore suggested, that his Honour was only partly right in saying that the purpose of this legislation was to take away the entitlement of local councils to vary the planning scheme established by the new regional scheme but his Honour then fell into silence about the other purpose which was to take away councils’ obligations to pay compensation which was an equal part of the pre-existing provisions of the 1996 Act.

MR HINSON: One necessarily follows from the other. If councils do not have the power to assess and decide these applications, steps (b), (c) and (d) in section 5.4.2 can never be satisfied. So, by taking away the power in a council to assess and decide the application in looking at the four steps under 5.4.2 that lead to a fully accrued right to claim compensation, (a) and (b) still continue, the planning scheme makes a change, (b) an application is made, but (c) and (d) are prevented from arising.

It would be erroneous to attribute to the Parliament ignorance of that existing schema within the Integrated Planning Act when the IPOLA 2004 amendments were enacted. One would ordinarily assume that they were familiar with the existing scheme of the legislation which was being amended.

CALLINAN J: Mr Hinson, I do not think Mr Gore was interested in this, but I am still a little interested in it because it may indirectly affect the question before the Court. Why should we necessarily say that a development application within 5.4.2 means a properly made application as defined by 3.2.1(7)?

MR HINSON: There is no reason why it must be, and if it is not - - -

HAYNE J: Why does not (c) and (d) inevitably require that conclusion?

MR HINSON: It does, your Honour.

HAYNE J: (c) assessment and (d) refusal, steps which could only take place if there is a valid application, assessment having regard to planning scheme and planning scheme policies, in effect, not assessment at large, but assessment having regard to.

MR HINSON: Your Honour is quite right.

CALLINAN J: No, but you could do that by saying the planning scheme and planning scheme policies, in effect, prohibit this application. I mean, arguably that might be an assessment. An assessment, whether it is prohibited or not, might equally be a form of assessment in the same way as an assessment having regard to the merits of the application.

MR HINSON: The assessment that is referred to in 5.4.2(c) is assessment “having regard to”.

CALLINAN J: Yes, “to the planning scheme and planning scheme policies” and they prohibit – as soon as you look at them you see that they prohibit this sort of development, but why is not that an assessment looking at them and seeing the prohibition?

MR HINSON: The assessment referred to is that described in Chapter 3, Part 5 of the Act, I would submit, that the word “assessed” in this context is a reference back to the assessment process described in Chapter 3, Part 5 of the Act and the - - -

CALLINAN J: What page was that, Mr Hinson?

MR HINSON: Page 125 behind tab 7, that is, 125 of the legislation, 100 using the pagination in the bottom right-hand corner, and your Honours will see there a heading “Division 2” to Part 5 of Chapter 3 of the Act, “Assessment process”. Going back one page, one will see the commencement of “Part 5 – Decision stage”. It is broken down into “Division 2 – Assessment process” which continues through to section 3.5.6 at page 104, using the pagination in the bottom right hand corner, and then Division 3 is headed “Decision” and this deals with - - -

CALLINAN J: I suppose you would also say that a refusal of an application under 5.4.2 is something different from a refusal “to receive an application”, which is the language of 3.2.1(8), for example?

MR HINSON: Yes, the context in which “refuse” is used in 5.4.2(d) is a reference back to one of the decisional choices open in section 3.5.11 that appears at page 106 using the pagination at the bottom right-hand corner.

CALLINAN J: I understand your submission.

MR HINSON: Yes. It says:

In deciding the application, the assessment manager must –

(a) approve all or part . . . or

(c) refuse the application.

To come back to your Honour Justice Hayne’s point, it is quite correct that (c) and (d), in talking about assessment and decision, do require the application to be properly made. But in terms, that requirement springs from section 3.2.1 rather than from the terms of section 5.4.2 itself.

HAYNE J: I am not sure that is right. It seems implicit in your submissions that 5.4.2 gives a right to compensation that is to be understood as containing two elements at least. There are others, but two presently relevant elements. One, injurious affection - see paragraph (a) - but also the valid engagement of the statutory provisions for application for development approval under the old provisions, that is, under the superseded provisions.

MR HINSON: Yes.

HAYNE J: If that is so, if that is implicit, the question then becomes whether that right so understood is to be regarded as dealt with in a manner contrary to section 20 or common law principles by the alteration of the steps necessary to be satisfied for the valid engagement of the provisions for application.

MR HINSON: Yes, to which I have two responses. Assuming section 20 applies, it is ousted by the indication of a contrary intention, but in any event, section 20 is not engaged because the relevant right which the appellant here asserts to have the application dealt with according to a particular process did not arise or become acquired until the application was made.

Unless your Honours have some further questions of me, they are my submissions.

KIRBY J: Yes, thank you, Mr Hinson. Anything in reply, Mr Gore?

MR GORE: Just a few brief points, your Honour. First, my learned friend referred to one of the cases in his list that referred to the level of drafting incompetence of Queensland planning legislation. That is the case of Ace-Waste [1999] 1 Qd R 233, and the passage that my learned friend had in mind is at 236 at line 15. I would say two things about our learned friend’s reference to that passage. First, it is to be noted that the case was dealing with the 1990 Act, not with the 1997 Act, but perhaps my learned friend is suggesting that the same criticism can be levelled at the 1997 Act. Secondly, in any event, if the submission is being made that there is a level of drafting incompetence to be expected from the Queensland legislature with the planning legislation, that reinforces the submissions that the
appellants make that the proper approach to statutory provisions, making things clear and unambiguous, has not been followed.

The second point I wanted to reply to was our learned friend’s submission that prior to the 5.4.2(b) step there was no correlative right to pay compensation, that that had not accrued. That is accepted by the appellants but the appellants respond by pointing the Court to those authorities which emphasise that section 20 is not concerned with rights in a Hohfeldian sense and Temwood Holdings, I think, particularly in the judgment of Justice McHugh, was careful to point out that even though you cannot point to liabilities that have accrued, such as Hohfeld would have called for, that does not mean that you do not have a right that is acquired – it may not be accrued but it is acquired – for the purposes of section 20.

Thirdly, with respect to the issue that your Honour Justice Callinan raised both with me and my learned friend about section 5.4.2(b) in particular, and your Honour moved on to (c) to question whether there might be some scope for saying that there had in substance been an assessment in respect of the appellants’ application, whilst I still have difficulty embracing that approach, albeit there is an obvious temptation to do so, what I can say in response in favour of the appellants is that the observations that your Honour makes are entirely consistent with the overall submission that the appellants make that the outcome here is unjust vis-à-vis the appellants, whereas the outcome contended for by the appellants would not be unjust vis-à-vis either the Council or, for that matter, the government and its draft regulatory - - -

KIRBY J: Be careful throwing the word “unjust” around because there could be a view – I am not saying it is right or wrong but for the purpose of the better development of this particular part of South Queensland that the greater justice lies in freezing certain developments and if that includes not giving particular people compensation, that is just how the system falls out for the better protection of the environment.

MR GORE: Your Honour, what we say is that there is no risk looking at the practicalities and the realities of the case that an upholding of the appellants’ argument will lead to development not contemplated by the draft regulatory provisions. Indeed, given the stand that the Council has taken to the application, it is crystal clear that if the appellants succeed here it is to be expected that it will elect to assess the application under the new scheme in which case there will be no development on the appellants’ land, the protection sought to be afforded by the regional plan will have been preserved but so too will the appellants’ right to compensation.

KIRBY J: Thank you very much, Mr Gore. The Court will reserve its decision in this case and we will now adjourn until a day to be fixed.

AT 12.46 PM THE MATTER WAS ADJOURNED