Court of Appeal

Yolla Holdings Pty Ltd v Aion Corporation Pty Ltd & Anor [2014] QCA 137 (13/8047) Chief Justice and Fraser and Gotterson JJA 6 June 2014

Full-text: QCA14-137.pdf

Catchwords

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where an approved scheme under the Integrated Resort Development Act 1987 identified a strip of land, including the lot now owned by the appellant, as primary thoroughfare – where that lot was not transferred to the primary thoroughfare body corporate upon the scheme’s approval and was not sub-divided by the initial plan of subdivision, in contravention of the Act – where the local government and registrar of titles approved that plan – where no subsequent plan designated the lot as primary thoroughfare – where the appellant subsequently purchased the lot as a third party for commercial value – where the primary judge declared the lot to be “primary thoroughfare” and the appellant its “registered proprietor” within the meaning of s 33 of the Act – whether the primary judge erred in that interpretation – whether the lot was ever “shown on the plan as primary thoroughfare” within the meaning of s 33 of the Act

Summary Notes

General Civil Appeal – Environment and Planning – where an approved scheme under the Integrated Resort Development Act 1987 identified a strip of land, including the lot now owned by the appellant, as primary thoroughfare – where that lot was not transferred to the primary thoroughfare body corporate upon the scheme’s approval and was not sub-divided by the initial plan of subdivision, in contravention of the Act – where the local government and registrar of titles approved that plan – where no subsequent plan designated the lot as primary thoroughfare – where the appellant subsequently purchased the lot as a third party for commercial value – where the primary judge declared the lot to be “primary thoroughfare” and the appellant its “registered proprietor” within the meaning of s 33 of the Act – whether the primary judge erred in that interpretation – whether the lot was ever “shown on the plan as primary thoroughfare” within the meaning of s 33 of the Act – where the appeal concerns only the proper construction of s 33 of the Act – where s 33(1) refers to a lot “shown on the plan as primary thoroughfare” and the definition of “primary thoroughfare” similarly refers to “primary thoroughfare as shown … on the initial plan…” – where whatever construction is given to the word “shown”, the obligation to transfer a lot which is created by s 33(1) does not arise unless the lot is shown “on the plan as primary thoroughfare” – where the requirements of that expression are not met without at least some indication on the registered plan that the lot is primary thoroughfare – where the requirement that the lot be shown on the registered plan as primary thoroughfare was not met in this case, whether or not s 33(1) allows reference only to an initial plan of subdivision and whether or not the obligation in s 33(1) is imposed only upon the person who was the registered proprietor of the lot when it was created – where the initial plan of subdivision indicated that the subject land was not primary thoroughfare by including it as an undifferentiated part of the balance land rather than within land designated as primary thoroughfare, no subsequent plan designated the subject land as primary thoroughfare, and the designation on SP 197707 of land other than the subject land as primary thoroughfare also indicated that the subject land was not primary thoroughfare – where the problem here arose only because, as the Court must assume for the purposes of this appeal, the original proprietor failed to lodge a plan showing the subject land as primary thoroughfare in conformity with s 30 of the Act, the local government approved that plan in contravention of s 31, and the registrar of titles registered that plan in contravention of s 32 – where acknowledging that views might reasonably differ upon this issue the construction preferred by the primary judge involves an unjustified departure from the literal and natural meaning of that text and did not accord sufficient weight to the principle that “where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights”. Appeal allowed. Set aside the orders made in the Trial Division. Instead order that the application be dismissed with costs.