Insights

High Court states important principles for construing statutory approvals

The High Court’s recent decision in Sunland Group Limited v Gold Coast City Council [2021] HCA 35 (Sunland), delivered on 10 November 2021, has important implications for the interpretation of statutory approvals under a wide range of legislation, including approvals under planning laws.

In Sunland, Stewart J (with whom Kiefel CJ, Keane and Gleeson JJ agreed) held , at [58], that conditions of an approval granted under Queensland’s previous planning laws:

are not to be construed like any other contract, but rather in accordance with the rules of construction governing the interpretation of Acts of Parliament and subordinate instruments.

Gordon J concurred with this approach in a separate judgment (at [21]).

Interpreting ambiguous statutory approvals

The High Court’s unanimous approach to construing statutory approvals overturns a principle that had bedeviled enforcement of ambiguous approvals for decades: that ambiguity was to be resolved in favour of the person subject to the conditions. That approach has now been resoundingly rejected.

The change is already being felt in enforcement of Queensland planning approvals. In Noosa Council v Cordwell Resources Pty Ltd & Ors [2021] QPEC 67  (Cordwell), delivered on 25 November 2021, Long SC DCJ rejected (at [24]) principles relied on by a quarry company for construing the conditions of a planning approval that:

(a) any ambiguity in the approved condition should be construed in a manner that places the least burden on the landowner, and ambiguity in a development condition should be construed against the imposing authority; and

(b) any lack of certainty “is the responsibility of the applicant who formulated the conditions and, as such, the applicant should bear the consequences”.

Long SC DCJ gave these principles short shrift, stating (at [25]) by reference to the High Court’s decision in Sunland (footnotes omitted):

It is unnecessary to dwell upon the decisions which are relied upon for these broadly stated propositions or to consider the extent to which any of those decisions represent any more than conclusions which sought to find and provide a sense of certainty of application of the provisions in issue. This is because the High Court has, very recently, determined that the conditions of a development approval are not to be construed by reference to principles applicable to the construction of contracts “but rather in accordance with the rules of construction governing the interpretation of Acts of Parliament and subordinate instruments”. In another judgment, there is also an indication that an approach to construction upon the premise that “ambiguity should be resolved against the Council, as the drafter of the [approval], is contrary to principle and precedent”.

Considering application documents when construing approvals

A second area where the High Court’s decision in Sunland has important implications is the extent to which application documents can be considered when construing statutory approvals. That too has been an important issue that has bedeviled enforcement of ambigious approvals, with courts reluctant to consider application documents unless expressly incorporated into approvals. For instance, in Brisville v Brisbane City Council [2007] QPEC 63, Rackemann DCJ stated (at [8], footnotes omitted):

the construction of a development permit is undertaken having regard primarily to the terms of the approval, as it appears on its face, together with other material, such as approved plans, where they are incorporated expressly or by necessarily implication.

That approach also now appears to be superseded by the principles in Sunland, as the application documents for a statutory approval should be able to be referred to when interpreting the approval as extrinsic material.

The correct approach now appears to be that taken by Robertson DCJ in Swan v Santos GLNG Pty Ltd & Ors [2017] QPEC 2 (Swan) at [138]-[139] when construing conditions of an environmental authority under the Environmental Protection Act 1994 (Qld):

[138] In dealing with what are essentially civil proceedings, with significant potential detriment to Santos e.g. the finding of criminal conduct albeit in a civil proceeding; it is essential that the Court construe those conditions said to be contravened in accordance with established principles of statutory construction.

[139] Environmental Authorities (EAs) are statutory instruments, pursuant to the Statutory Instruments Act 1992 (ss 6, 7(2)(c), 7(3)); and by s 14 and Sch 1 of that act, s 14A(1), s 14B(1) and s 35C of the Acts Interpretation Act 1954 applies so that:

(a) the interpretation is to be preferred that best achieves the purposes of the EA;

(b) regard may be had to extrinsic material, provided certain circumstances exist; and

(c) any heading to a provision of the EA forms part of that provision.

The approach in Swan is entirely consistent with Sunland.

Application documents are, logically, extrinsic material that may be considered where there is ambiguity in a statutory approval, particularly in relation to the extent of approval granted. Reference to application documents should not be limited to cases where they are incorporated expressly or by necessary implication. It is sufficient that ambiguity exists in interpreting the nature of the approval granted.

The principles stated in Sunland are, therefore, important to consider in construing statutory approvals in the future.

 

Dr Chris McGrath

Higgins Chambers

29 December 2021