25.
CASE
QUEENSLAND
Compensation for Injurious
Affection - difference between
character and purpose or use of
a building
Brisbane City Council v Douglas
(Court of Appeal, Fitzgerald P,
McPherson JA and Derrington J,
unreported decision dated 26
November 1992)
This was an appeal from a decision of the
Planning and Environment Court (Douglas v
Brisbane City Council) which, on 17 July 1992,
ordered the Appellant, Brisbane City Council,
to pay the Respondents $167,000.00 for
injurious affection relating to the Respondents'
land at 26 & 30 Ellis Street, Kangaroo Point.
The Respondents' claim to compensation was
based on Section 13 (1) (a) (ii) of the City of
Brisbane Town Planning Act of 1964. The
Appellant accepts the Respondents'
entitlement to compensation unless it is
excluded by Section 14 (1) (c) of that Act. The
question of law raised by this appeal is
whether the Respondents were denied a right to
compensation by that subsection. At all
material times, the land was in a Residential B
Zone under the Town Plan for the City of
Brisbane.
Under the 1978 Town Plan, the land was in a
Residential Development Area which was
"undeclared" or "undesignated". An Apartment
Building was a development which might be
carried out with the consent of the Appellant.
By definition, "development" meant the use of
any land or erection or use of any building or
other structure and was related to the purpose
for which the land or building was used. Thus,
under the 1978 Town Plan, a building might
have been erected and used for the purpose of
an Apartment Building with the consent of the
Appellant. Under the 1987 Town Plan, the
land was subject to a Residential Development
Area designation of R3. The development of
Apartment Building on land in the Residential
B Zone with a Residential Development Area
designation of R3 was prohibited by the Town
Plan. Although differently expressed,
NOTES
"development" was defined to substantially the
same effect as in the 1978 Town Plan. A
building may no longer be erected or used for
the purpose of an Apartment Building on the
subject land.
Section 131 (a) (ii) of the City of Brisbane
Town Planning Act, upon which the
Respondents' claim to compensation was
based, provided:
"13. Claims for compensation
(1) Subject to this Act any person (a) who has an estate or interest in land in
the City of Brisbane and such estate
or interest is injuriously affected...
(ii) by any prohibition or restriction
imposed by or under the Plan;
shall, if he makes a claim therefore within
the time prescribed, be entitled to obtain
from the Council compensation in respect
of such injurious
affection...."
Section 14 (1) (c) of the City of Brisbane Town
Planning Act 1964, upon which the Appellant
relies, and the following subsection (d) which is
also material, provided:
"14. Compensation not payable in certain
cases.
(1) Compensation shall not be payable in
the following cases:(c) Where an estate or interest in land is
affected by any provision of the Plan ...
which prescribed the space about buildings
or other structures or limits the size of
allotments or the number of buildings or
other structures to be erected or prescribes
the height, floor space, design, external
appearance of character of buildings or
other structures,...;
(d) Where an estate or interest in land is
affected by any provision of the Plan which
prohibits or restricts the use of land or the
erection of use of a building or other
structure thereon for a particular purpose,
unless the applicant establishes that he had
a legal right immediately before the
provision in question of the Plan came into
force to use the land or erect or use a
building or other structure thereon for the
26.
CASE
particular purpose which is prohibited or
restricted as aforesaid..."
The Appellant’s submission is that the
prohibition upon the development of an
apartment building is a "provision of the Plan
... which describes the... character of buildings
...." within the meaning of Section 14(1) (c). It
was argued for the Appellant that a provision
which prohibits the erection of use of a building
for a particular purpose prescribes, presumably
by exclusion, the character of a building which
may be erected and used.
The Appellant sought to support its contention
by judgments by Courts in other States on
comparable but different legislation - such as
Baker v Cumberland County Council (1956) 1
LGRA 321 - and by reference to views which
have been expressed in a variety of contexts by
learned textwriters. However, as the
Appellant acknowledged, its research
indicated that the Queensland legislative
provisions which are presently material have
not been considered by any Appellate Court.
In the circumstances, there is only limited
assistance available from existing judgments
and texts, and it is substantially necessary for
this Court to construe the material provisions
of the City of Brisbane Town Planning Act for
itself in the context of the wider legislative
scheme of which they form part.
It is convenient to start with Section 14 (1) (d),
which plainly - as the Appellant concedes operated in respect of the Respondents'
compensation claim. The material provision of
the 1987 Town Plan prohibits the erection or
use of a building for the purpose of an
apartment building and, by virtue of Section 14
(1) (d), compensation would not be payable to
the Respondents except for the circumstance
that they are able to bring themselves within
the proviso commencing "unless", subject to
one qualification based on a very strained and
artificial construction of Section 14 (1) (c)
which does not merit discussion, the Appellant
acknowledged that the interpretation of Section
14 (1) (c), for which it contends leaves no
operation for Section 14 (1) (d), and indeed in
cases where the proviso to Section 14 (1) (d) is
applicable that the two subsections produce
conflicting results.
This somewhat unattractive result is not one
which would readily attribute to the legislature.
NOTES
It is therefore necessary to turn to Section 14
(1) (c) to see if the language, or discernible
purpose, of that provision warrants such a
conclusion.
Two features of Section 14 (1) (c) are
immediately obvious. Relevantly, the
subsection is concerned with provisions which
prescribe, not prohibit; put broadly, with
provisions which lay down requirements which
are to be met, not with prohibitions on what
may be done except in the limited sense that
every positive requirement carries within it a
negative obligation not to act differently.
Secondly, the reference to "character" in Section
14(1) (c) appears in the context of a series of
descriptive features of buildings which are
unrelated to a building’s use; thus, the
prescriptions referred to concern a building's
"height, floor space, design, external
appearance or character", irrespective of its
use. While it is not easy to substitute a
synonym for "character" in the context perhaps "distinctive style" will suffice - and
there may well be overlap between "design",
"external appearance" and "character", the
material portion of Section 14 (1) (c) is not
directed to the purpose or use of a building but
to features associated with the form and
manner of its construction. By contrast,
Section 14 (1) (d) is, as has been stated,
unequivocally concerned with the purpose for
which a building is used, and it is to that topic
that the prohibition in the Town Plan which is
presently material related. It follows that the
Respondents’ entitlement to compensation
under Section 13, which is preserved by the
proviso to Section 14 (1) (d), is not excluded
by Section 14 (1) (c), which is not directed to a
prohibition upon the erection or use of a
building for a particular purpose on the
Respondents’ land.
The appeal was dismissed.
It is to be noted that Section 3.5 of the Local
Government (Planning and Environment) Act
1990 used the same language as the now
repealed City of Brisbane Town Planning Act.
John Haydon,
Barrister
Qld, NSW and Vic