Bennett v Fitzroy SC

SUPREME COURT OF QUEENSLAND

CITATION:

Bennett v Fitzroy SC [2003] QCA 444

PARTIES:

JOHN CAMPBELL BENNETT
(appellant/appellant)
v
FITZROY SHIRE COUNCIL
(respondent/respondent)

FILE NO/S:

Appeal No 1616 of 2003
P&E Appeal No 1315 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Planning and Environment Appeal

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

17 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2003

JUDGES:

Davies JA and Jones and Holmes JJ
Judgment of the Court

ORDER:

1.    Appeal dismissed
2.    Appellant to pay the respondent's costs of the appeal

CATCHWORDS:

ENVIRONMENT AND PLANNING - PLANNING SCHEMES AND INSTRUMENTS - QUEENSLAND - DEVELOPMENT CONTROL PLANS - where appellant owner of property west of Rockhampton - where new Development Control Plan came into effect - where Development Control Plan discouraged use of subject land for rural home sites - where appellant sought compensation for injurious affection relating to lots affected by the scheme - where primary judge held that valuation of the subject land as rural home sites would have been less than value of sale of lots together for grazing purposes - whether primary judge adopted incorrect basis of valuation of the lots affected by the scheme

Local Government (Planning and Environment) Act 1990 (Qld), s 3.5(8)(a)

Australasian Jam Company Pty Ltd v Federal Commissioner of Taxation (1953) 88 CLR 23, distinguished

BSC Footwear Ltd v Ridgway (Inspector of Taxes) [1971] Ch 427, distinguished

CMB No 1 Pty Ltd v Cairns City Council [1999] 1 QdR 1, cited

Spencer v Cth (1907) 5 CLR 418, applied

COUNSEL:

D R Gore QC for the appellant
G J Gibson QC, with S M Ure, for the respondent

SOLICITORS:

Connor O'Meara for the appellant
King & Company for the respondent

1. :THE COURT  This is an appeal and an application for leave to appeal from a decision of the Planning and Environment Court on 30 January 2003.  That decision arose out of applications for compensation for injurious affection lodged by the appellant with the respondent following the coming into effect of a new town planning scheme for the Fitzroy Shire on 13 December 1996.

1. On 20 December 1997 the appellant lodged with the respondent applications for compensation relating to 34 of 49 lots affected by Development Control Plan No 2‑Alton Downs which was part of the planning scheme.  On 26 March 1998 the appellant appealed to the Planning and Environment Court against deemed refusals of those applications.  Five only of those appeals proceeded to trial and on 7 July 1999 the court awarded compensation in respect of four of those.

1. Then on 1 December 1999 the appellant lodged with the respondent applications for compensation in respect of the remaining 15 lots and appeals were instituted out of time on 6 June 2000.  However on 31 August 2001 the Planning and Environment Court extended the time for appeal to that date.

1. All of the outstanding appeals, 44 involving 44 lots (all of those referred to above except the five which had…