Bamford v Albert Shire Council - [1997] QCA 462

IN THE COURT OF APPEAL	[1997] QCA 462
SUPREME COURT OF QUEENSLAND

Appeal No. 5074 of 1996.

Brisbane
[Albert Shire Council v. Bamford & Anor.]

BETWEEN:

ALBERT SHIRE COUNCIL

(Defendant) Appellant

AND:

NEIL RAYMOND BAMFORD and
SANDRA DALE BAMFORD

(Plaintiffs) Respondents

___________________________________________________________________________

McPherson J.A.
Pincus J.A.
Thomas J.

___________________________________________________________________________

Judgment delivered 19 December 1997

Joint reasons for judgment of Pincus J.A. and Thomas J., separate concurring reasons of
McPherson J.A.

___________________________________________________________________________

APPEAL DISMISSED WITH COSTS. CROSS-APPEAL ALLOWED WITH COSTS AND
THE AMOUNT FOR WHICH JUDGMENT WAS GIVEN BELOW ($375,659) REPLACED
BY A SUM OF $391,079.

____________________________________________________________________________

CATCHWORDS: TOWN PLANNING - subdivision - whether subdivisional approval was

negligent - duty of Council in determining whether land suitable for
residential subdivision.
DAMAGES - assessment of damages - whether exception to general rule governing awards of damages in tort - whether correct allowance for interest on purchase price made.
The Council of the Shire of Sutherland v. Heyman (1985) 157 C.L.R. 424
Rentokil Pty Ltd v. Channon (1990) 19 N.S.W.L.R. 417.
Local Government Act 1936 s. 34(12)

Counsel:	Mr P A Keane Q.C. with him Mr K N Wilson for the appellant. Mr S S W Couper Q.C. for the respondents.
Solicitors:	King & Company for the appellant. Barker Gosling for the respondents.
Hearing date:	13 November 1997.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5074 of 1997

Brisbane

Before

McPherson J.A.
Pincus J.A.
Thomas J.

[Albert Shire Council v. Bamford and Anor]

BETWEEN:

ALBERT SHIRE COUNCIL

(Defendant) Appellant

AND:

NEIL RAYMOND BAMFORD
and SANDRA DALE BAMFORD

(Plaintiffs) Respondents

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 19 December 1997

I agree that, for the reasons given by Pincus J.A., this appeal should be dismissed with costs. I also agree with his Honour’s reasons for concluding that the cross-appeal should be allowed with costs by increasing to the extent proposed the amount for which judgment was given in the court below.

There are only two matters on which I wish to add comments of my own to what Pincus J.A. has already said. The first is that I agree that it takes too narrow a view of the defendant Council’s function under s.34(12)(g) of the Local Government Act 1936 to consider it as confined to examining the documentary form of application submitted by the developer to the Council for approval to subdivide. In imposing that function on the Council, s.34(12)(g) provides that:

“In respect of any application for approval of a subdivision of land ... the Local
Authority shall take into consideration:
...
(g) whether the land or any part thereof ... is not fit to be used for residential purposes ...”.

It has been said of the words “in respect of”with which s.34(12) is introduced that “they have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which they refer”. See State Government Insurance Office (Qld.) v. Crittenden (1966) 117 C.L.R. 412, 416,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] QCA 462
Decision Date: 19/12/1997

CaseChat Overview and Summary

The case of Bamford v Albert Shire Council [1997] QCA 462 involved an appeal by the Albert Shire Council against a Supreme Court judgment that awarded damages to Neil Raymond Bamford and Sandra Dale Bamford. The respondents, who had purchased a subdivided lot, claimed that the Council negligently approved the subdivision and building works, resulting in their house becoming uninhabitable due to landslip. The Council argued that it was not required to actively investigate the suitability of the land for residential subdivision and that it had acted reasonably in approving the subdivision. The primary issues were whether the Council owed a duty of care to the respondents in approving the subdivision and whether the Council negligently breached that duty. The Court of Appeal held that the Council did owe a duty of care and had breached it by negligently approving the subdivision. The Court also held that the award of damages was correct, except for the interest on the purchase price, which should be increased. The appeal was dismissed, and the cross-appeal was allowed with an increased award of damages.

Orders