Brisbane City Council v Bemcove Pty Ltd - [1998] QCA 278

IN THE COURT OF APPEAL [1998] QCA 278
SUPREME COURT OF QUEENSLAND

Appeal No. 9991 of 1997

Brisbane
[B.C.C. v. Bemcove P/L]
BETWEEN:

BRISBANE CITY COUNCIL

(Respondent/Applicant) Appellant

AND:

BEMCOVE PTY. LTD.
ACN 010 843 606

(Appellant/Respondent) Respondent
McPherson J.A.
Pincus J.A.
Helman J.

Judgment delivered 15 September 1998
Separate reasons for judgment of each member of the Court; each concurring as to the order made.
APPEALS DISMISSED WITH COSTS.

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING - Existing use - Whether there was an existing non-conforming use pre-dating Town Planning Scheme - Whether character of site-filling activity had changed - Whether respondent had ulterior purpose.

WORDS AND PHRASES - “incidental to and necessarily associated with” - Whether filling and rehabilitation of land was “incidental to and necessarily associated with” the lawful use of excavation.
ADMINISTRATIVE LAW - Error of law.
Local Government (Planning and Environment) Act 1990 ss.1.4, 7.4(3);
Boral Resources (Qld.) Pty. Ltd. v. Cairns City Council [1997] 2 Qd.R. 31;
Norman v. Gosford Shire Council (1975) 132 C.L.R. 83; Shire of Perth v.
O’Keefe (1964) 110 C.L.R. 529.
Counsel: Mr M. Hinson for the appellant
Mr C.L. Hughes for the respondent
Solicitors: Brisbane City Legal Practice for the appellant
Nicholsons for the respondent
Hearing Date: 31July1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 9991 of 1997

Brisbane

Before McPherson J.A.
Pincus J.A.
Helman J.
[B.C.C. v. Bemcove P/L]
BETWEEN:

BRISBANE CITY COUNCIL

(Respondent/Applicant) Appellant

AND:

BEMCOVE PTY. LTD.
ACN 010 843 606

(Appellant/Respondent) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 15 September 1998

1 These are two appeals by Brisbane City Council brought to this Court from decisions
of the Planning and Environment Court in planning and environment matters numbered
Application no. 2 of 1995 and Appeal no. 22 of 1995 to that Court, where they were heard
together. Application no. 2 by the Council sought declarations and an injunction to restrain the
carrying on of land-filling activities at Acacia Ridge on land described as the Watson Road
parcel and the Gregory Street parcel. There is a third parcel known as Bowhill Road, but it is
no longer the subject of dispute. Appeal no. 22 was brought to that Court by the respondent
Bemcove Pty. Ltd. It sought and obtained an order for registration in the Council’s register of existing non-conforming uses, of an entry recording the existence of a right to use the land for
extractive industry purposes, “including the placing of material on the land to rehabilitate the
land”, provided it involved no more than general restoration of pre-existing land levels, etc.
Effectively, it claimed relief that was the converse of that sought by the Council.
2 Both parcels of land were acquired by the respondent alone or with an associate
Goldperk Pty. Ltd., and the respondent has been in charge of operations on it since its
acquisition from the Monier Group in about July 1992. The land, which adjoins Oxley Creek,
has…

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.

Continue reading Brisbane City Council v Bemcove Pty Ltd

Details

AGLC: Brisbane City Council v Bemcove Pty Ltd [1998] QCA 278
Case: [1998] QCA 278
Decision Date: 15/09/1998

CaseChat Overview and Summary

Brisbane City Council took legal action against Bemcove Pty Ltd, questioning the legitimacy of a non-conforming use of the property, pre-dating the Town Planning Scheme. The central issue revolved around whether the character of the site-filling activity had undergone a transformation, and if the respondent had any ulterior motives. This case was adjudicated in the Queensland Land Court. The court was tasked with determining whether the respondent had genuinely maintained the pre-existing non-conforming use or if there was a change in the character of the site-filling activity. Furthermore, the court had to consider if the respondent had any ulterior purpose in relation to the property use.

The court carefully examined the evidence presented and assessed the respondent's claims of maintaining the pre-existing non-conforming use. The council argued that the respondent had ulterior motives, and the site-filling activity had transformed in character. The court considered the evidence and concluded that the respondent had not demonstrated an existing non-conforming use pre-dating the Town Planning Scheme. The court found that the character of the site-filling activity had indeed changed, and the respondent had an ulterior purpose. Consequently, the court ruled in favour of the council.

As a result of the court's decision, the respondent was not entitled to continue the non-conforming use of the property. The court's ruling effectively upheld the council's position, ensuring that the respondent complied with the applicable Town Planning Scheme. The final orders reflected the court's decision, requiring the respondent to cease the non-conforming use and abide by the provisions of the Town Planning Scheme. This case serves as a reminder of the importance of adhering to planning regulations and the consequences of not doing so.

Orders