Brisbane Land Pty Ltd v Pine Rivers Shire Council [see also CA98.366]

[1998] QCA 427

IN THE COURT OF APPEAL	[1998] QCA 427
SUPREME COURT OF QUEENSLAND
Brisbane

Appeal No. 5684 of 1998. Appeal No. 5685 of 1998.

[Brisbane Land P/L v. Pine Rivers S.C.]

BETWEEN:

BRISBANE LAND PTY LTD

ACN 053 884 021

(Appellant) Appellant

AND:

PINE RIVERS SHIRE COUNCIL

(Respondent) Respondent

Appeal No. 5686 of 1998.

[Brisbane Land P/L v. Qld]

BETWEEN:

BRISBANE LAND PTY LTD

ACN 053 884 021

(Appellant) Appellant

AND:

STATE OF QUEENSLAND

(Respondent)	Respondent
McMurdo P. Pincus J.A. Jones J.

Judgment delivered 13 November 1998

Further Order delivered 18 December 1998

Further Order of the Court

2.          APPEAL ALLOWED.

3.          ORDER MADE BELOW SET ASIDE.

4.          THE APPELLANT’S SUBDIVISION PROPOSAL APPLICATION FOR STAGE P 12, DATED 18 SEPTEMBER 1997, IS APPROVED, SUBJECT ONLY TO THE CONDITIONS SET OUT IN EXHIBIT 2 IN THE PROCEEDINGS IN THE PLANNING AND ENVIRONMENT COURT.

5.          NO ORDER AS TO COSTS.

APPEAL NO. 5685 OF 1998

1.          SO FAR AS NECESSARY, LEAVE TO APPEAL IS GIVEN.

2.          APPEAL ALLOWED.

3.          ORDER MADE BELOW SET ASIDE.

4.          THE APPELLANT’S SUBDIVISION PROPOSAL APPLICATION FOR STAGE P 11, DATED 18 SEPTEMBER 1997, IS APPROVED, SUBJECT ONLY TO THE CONDITIONS SET OUT IN EXHIBIT 2 IN THE PROCEEDINGS IN THE PLANNING AND ENVIRONMENT COURT.

5.          NO ORDER AS TO COSTS.

APPEAL NO. 5686 OF 1998

1.          SO FAR AS NECESSARY, LEAVE TO APPEAL IS GIVEN.

2.          APPEAL ALLOWED.

3.          ORDER MADE BELOW SET ASIDE.

4. WITH RESPECT TO A DECISION OF THE CHIEF EXECUTIVE WITHIN THE MEANING OF S. 40 OF THE TRANSPORT INFRASTRUCTURE ACT 1994, COMMUNICATED BY LETTER DATED 22 OCTOBER 1997, REFUSING AN APPLICATION FOR APPROVAL OF SUBDIVISIONS REFERRED TO IN THE SAID LETTER AS STAGES P 11 AND P 12, WHICH DECISION WAS THE SUBJECT OF APPEAL NO. 774 OF 1998 IN THE PLANNING AND ENVIRONMENT COURT, THAT APPEAL AGAINST THAT DECISION IS ALLOWED AND THE APPLICATION RELATING TO THE SUBDIVISIONS IDENTIFIED AS STAGES P 11 AND P 12 IS APPROVED.

5.          THE RESPONDENT STATE OF QUEENSLAND IS ORDERED TO PAY THE COSTS OF THE APPELLANT IN THIS COURT.

CATCHWORDS:	ORDERS - costs - whether respondent State of Queensland should pay costs in all three appeals.
Counsel:	Mr P Lyons Q.C., with him Mr T Trotter, for the appellant. Mr K Dorney Q.C., with him Mr W Cochrane, for the respondent State of Queensland. Mr A Skoien for the respondent Pine Rivers Shire Council.
Solicitors:	Mullins & Mullins for the appellant. Mr B T Dunphy, Crown Solicitor for the respondent State of Queensland. Pine Rivers Shire Solicitor for the respondent Pine Rivers Shire Council.
Hearing Date:	23 October 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before McMurdo P
Pincus J.A.
Jones J.

Appeal No. 5684 of 1998. Appeal No. 5685 of 1998.

[Brisbane Land P/L v. Pine Rivers S.C.]

BETWEEN:

BRISBANE LAND PTY LTD

ACN 053 884 021

(Appellant) Appellant

AND:

PINE RIVERS SHIRE COUNCIL

(Respondent) Respondent

Appeal No. 5686 of 1998.

[Brisbane Land P/L v. Qld]

BETWEEN:

BRISBANE LAND PTY LTD

ACN 053 884 021

(Appellant) Appellant

AND:

STATE OF QUEENSLAND

(Respondent) Respondent

REASONS FOR FURTHER ORDER - THE COURT

Judgment delivered 13 November 1998
Further Order delivered 18 December 1998

1. The Court gave judgment in these three appeals on 13 November 1998 and invited the parties to file written submissions with respect to the orders to be made to give effect to the Court’s reasons. The appellant’s submission invites the Court to impose conditions in accordance with an

   annexure marked "A". The respondent Pine Rivers Shire Council proposes an order which it says

   differs from that put forward by the appellant in three respects, one of which is that the Council

   submits that the conditions attached should be those in Exhibit 2 tendered below. However, Exhibit

   2 is identical with annexure "A" to the appellant’s submission.

2. There remains the question of costs. The appellant seeks an order for costs against the

   respondent State of Queensland only, in all three appeals. Although there is substance in the

   appellant’s contention, it does not appear to us that it would be appropriate, in the present

   circumstances, to take the unusual course of making a respondent pay the cost of appeals to which

   it was not a party.

3. The orders will therefore be as follows.

   Appeal No. 5684 of 1998

   1.          So far as necessary, leave to appeal is given.

   2.          Appeal allowed.

   3.          Order made below set aside.

   4.          The appellant’s subdivision proposal application for stage P 12, dated

   18 September 1997, is approved, subject only to the conditions set out in Exhibit

   2 in the proceedings in the Planning and Environment Court.

   5.          No order as to costs.

   Appeal No. 5685 of 1998

   1.          So far as necessary, leave to appeal is given.

   2.          Appeal allowed.

   3.          Order made below set aside.

   4.          The appellant’s subdivision proposal application for stage P 11, dated

   18 September 1997, is approved, subject only to the conditions set out in Exhibit

   2 in the proceedings in the Planning and Environment Court.

   5.          No order as to costs.

   Appeal No. 5686 of 1998

   1.          So far as necessary, leave to appeal is given.

   2.          Appeal allowed.

   3.          Order made below set aside.

   4. With respect to a decision of the chief executive within the meaning of s. 40 of the

   Transport Infrastructure Act 1994, communicated by letter dated 22 October

   1997, refusing an application for approval of subdivisions referred to in the said

   letter as stages P 11 and P 12, which decision was the subject of Appeal No. 774

   of 1998 in the Planning and Environment Court, that appeal against that decision

   is allowed and the application relating to the subdivisions identified as stages P 11

   and P 12 is approved.

   5.          The respondent State of Queensland is ordered to pay the costs of the appellant

   in this Court.