Barro Group Pty Ltd v Girgenti

[2001] QCA 100

[2001] QCA 100

COURT OF APPEAL

WILLIAMS JA
MOYNIHAN J
BYRNE J

Appeal No 11317 of 2000

BARRO GROUP PTY LTD  Applicant

and

GIUSEPPE ROSARIO GIRGENTI  Respondent

BRISBANE

..DATE 16/03/2001

ORDER

WILLIAMS JA: This is an application pursuant to Section 118 of the District Court Act for leave to appeal from a decision of the Planning and Environment Court in Townsville.

The application before the Planning and Environment Court sought a declaration that in the circumstances of the case, the removal of gravel, its crushing, screening and stockpiling was contrary to the provisions of the Integrated Planning Act 1997 and/or the Environmental Protection Act 1994. The Planning and Environment Court dismissed the application.

The activity in question on the land has now ceased.  The Court admitted as Exhibit 1 a letter from the solicitors for the respondent indicating that in the circumstances they did not propose to appear on the hearing of the application; it is clear, and conceded by counsel for the applicant, that the activity in question has ceased.

The principal point that the applicant would seek to agitate if leave to appeal was granted was that the Planning and Environment Court did not properly apply the decision of this Court in Boral Resources Queensland Pty Ltd v. Cairns City Council (1997) 2 Queensland Reports 31.  The appeal would accept the correctness of that decision.

In my view, particularly since the activity in question has ceased, that question would be a moot point and not one appropriate for the granting of leave.  Cases such as these all depend upon their own particular facts and the material does not establish that there is anything so specific or peculiar about the facts before the Planning and Environment Court in this case to warrant this Court concluding that any decision would be in the nature of a test case.

In all the circumstances, I would refuse leave to appeal.

MOYNIHAN J:  I agree.

BYRNE J:  I agree.

WILLIAMS JA:  The order of the Court is leave to appeal refused.

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