One of the fundamental assumptions underpinning the interpretation of development approvals is that ambiguity in an approval should be construed in favour of the approval holder. A recent
The Status Quo
In the 1970
'I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.'2
The principle that a development approval is interpreted in favour of the approval holder was adopted in the
'Planning decisions are apt to have considerable effects on the value of property and in my judgement it would accord with principle, where planning approvals are ambiguous, to construe them in the way which places the least burden on the land owner.'
The idea that in a case of ambiguity development approvals are construed in the way most favourable to (or placing the least burden on) the landowner is a principle that has 'been applied many times'4including as recently as July of this year in the Planning and Environment Court5and applied, or at least not challenged, by the
Indeed, the principle is taken as given in textbooks.7
On
It is a paragraph from her
'Before turning to the proper construction of s 6.1.31(2)(c) of the IPA, it is necessary to notice but reject the approach to construction contended for by Sunland. Sunland's contention that the existence of ambiguity in the instrument does not itself result in invalidity and that, where possible, ambiguity should be resolved against the Council as the drafter of the Preliminary Approval is contrary to principle and precedent. The instrument is to be construed and its validity assessed in accordance with the principles in
Her Honour's reasoning appears to construe the Ryde and Matijesevic principle as an application of the contra proferentem rule (that ambiguity in contract be construed against the drafter), rather than a principle of planning law in its own right. Her Honour rejects that approach in favour of the general principles of interpretation and construction, as propounded by Dixon J in King Gee and Cann's.9
While not as direct, it is notable that Steward J in his judgment also opined that 'In that respect, and contrary to the submissions of the appellants, Conditions 13 to 16 are not to be construed like any other contract, but rather in accordance with the rules of construction governing the interpretation of Acts of
Adoption?
Despite being less than a month old, her Honour's comments have gained traction in the Planning and Environment Court. In the reasons in
'It is further contended [by the Respondent] that in the construction of conditions of planning approvals:
(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".
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
The approach of the Applicant, in argument, was to correctly seek to engage relevant principles of statutory interpretation as they have been particularly applied to the construction of planning schemes, such as is set out in
Watch this space
This new approach to the interpretation of development approvals would, at first blush, seem to benefit local governments and other issuers of approvals who are no longer handicapped by a presumption that approvals are construed to have the least burden on the land owner. However a question remains, that if heavier reliance is placed upon administrative law authorities like King Gee,12 Cann's
In a jurisdiction awash with new authority and principles stemming from the introduction of the Planning Act 2016(Qld), a change in arguably one of the most stable and enduring principles of the jurisdiction was certainly not expected. How trial judges grapple with the new approach is certainly something to watch.
Footnotes
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3 Matijesevic v
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6 Bucknell & Anor v
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13 Cann's
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
Level 11, Central
QLD
4000
E-mail: yjordin@mccullough.com.au
URL: www.mccullough.com.au
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