Cameron v Noosa SC - [2006] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

Cameron v Noosa SC [2006] QCA 109

PARTIES:

IAN MILNE DIXON CAMERON
(appellant/respondent)
v
COUNCIL OF THE SHIRE OF NOOSA
(respondent/applicant/appellant)

FILE NO/S:

Appeal No 7232 of 2005
P & E Appeal No 84 of 1995

DIVISION:

Court of Appeal

PROCEEDING:

Planning and Environment Appeal
Application for Leave Integrated Planning Act
Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

13 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2006

JUDGES:

McMurdo P, Jerrard JA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.Application for leave to appeal under Integrated Planning Act 1997 (Qld) dismissed as leave is not required

2.Application for extension of time within which to file notice of appeal allowed and time for filing notice of appeal extended to 31 August 2005

3.Appeal allowed and order made by primary judge set aside

4.Application for a declaration refused

5.Respondent to pay appellant's costs of and incidental to the application and appeal to be assessed

CATCHWORDS:

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL - whether appellant has a right of appeal under the now repealed Local Government (Planning and Environment) Act 1990 (Qld) or must seek leave to appeal under current Integrated Planning Act 1997 (Qld)

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - PROCEDURE - NOTICE OF APPEAL - whether the Court should grant an extension of time to allow appellant's appeal

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - GENERAL MATTERS - where respondent wished to develop his freehold land in a "rural preservation zone" as defined in local town planning scheme - where respondent granted approval to develop land as a cabin park - where respondent lodged claims for compensation for injurious affection of his interest in his land caused by amendments to town planning scheme - where respondent appealed to Planning and Environment (P & E) Court from appellant's failure to decide compensation claims - where appeal as to compensation application has not yet been heard - where respondent also applied to P & E Court to decide question of whether s 3.5(4)(c) Local Government (Planning and Environment) Act defeated his claims for compensation - where P & E Court declared that s 3.5(4)(c) does not apply to claims for compensation arising out of amended town planning scheme - where respondent appeals against declaration - whether respondent's claims for compensation for injurious affection to his interest in land are not payable because of s 3.5(4)(c) Local Government (Planning and Environment) Act - whether exception in s 3.5(4)(d) Local Government (Planning and Environment) Act might also apply to respondent's claims for compensation

Integrated Planning…

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: [2006] QCA 109
Decision Date: 13 April 2006

CaseChat Overview and Summary

The case of Cameron v Noosa SC involves a dispute regarding the entitlement of a landowner, the respondent, to compensation for a loss in value to his property, located in a rural preservation zone, due to amendments in the local town planning scheme. The Planning and Environment Court, now known as the Planning and Environment Division of the Queensland Civil and Administrative Tribunal, was tasked with deciding whether the appellant had a right of appeal under the repealed Local Government (Planning and Environment) Act 1990 (Qld) or if the respondent must seek leave to appeal under the Integrated Planning Act 1997 (Qld). The court also had to determine whether an extension of time should be granted to allow the respondent's appeal to proceed and whether the respondent's claims for compensation were barred by section 3.5(4)(c) of the Local Government (Planning and Environment) Act.

The court considered the legal issues surrounding the right of appeal and the statutory provisions governing compensation claims. It assessed the applicability of section 3.5(4)(c) of the Local Government (Planning and Environment) Act to the respondent's claims for compensation and whether any exceptions under section 3.5(4)(d) of the Act might apply. The court needed to determine if the respondent's claims for compensation for injurious affection of his land were precluded by the statutory provisions and whether the exception might still provide relief.

The court concluded that the respondent did not need leave to appeal under the Integrated Planning Act 1997 (Qld) since the appeal was considered a statutory right. The court granted an extension of time for the respondent to file the notice of appeal, setting the deadline for 31 August 2005. The appeal was allowed, and the order made by the primary judge was set aside. The court also refused the respondent's application for a declaration and ordered the respondent to pay the appellant's costs associated with the application and appeal, to be assessed.

In summary, the Planning and Environment Court found that the respondent's claims for compensation were not barred by section 3.5(4)(c) of the Local Government (Planning and Environment) Act. The court allowed the appeal, set aside the previous order, and directed the respondent to pay the appellant's costs.

Orders

Orders of the court

1. Application for leave to appeal under Integrated Planning Act 1997 (Qld) dismissed as leave is not required

2. Application for extension of time within which to file notice of appeal allowed and time for filing notice of appeal extended to 31 August 2005

3. Appeal allowed and order made by primary judge set aside

4. Application for a declaration refused

5.Respondent to pay appellant's costs of and incidental to the application and appeal to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cameron v Noosa SC [2006] QCA 109
PARTIES:	IAN MILNE DIXON CAMERON (appellant/respondent) v COUNCIL OF THE SHIRE OF NOOSA (respondent/applicant/appellant)
FILE NO/S:	Appeal No 7232 of 2005 P & E Appeal No 84 of 1995
DIVISION:	Court of Appeal
PROCEEDING:	Planning and Environment Appeal Application for Leave Integrated Planning Act Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	13 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	1 March 2006
JUDGES:	McMurdo P, Jerrard JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	*1.Application for leave to appeal under Integrated Planning Act* 1997 (Qld) dismissed as leave is not required 2.Application for extension of time within which to file notice of appeal allowed and time for filing notice of appeal extended to 31 August 2005 3.Appeal allowed and order made by primary judge set aside 4.Application for a declaration refused 5.Respondent to pay appellant's costs of and incidental to the application and appeal to be assessed**
CATCHWORDS:	ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL - whether appellant has a right of appeal under the now repealed Local Government (Planning and Environment) Act 1990 (Qld) or must seek leave to appeal under current Integrated Planning Act 1997 (Qld) ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - PROCEDURE - NOTICE OF APPEAL - whether the Court should grant an extension of time to allow appellant's appeal ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - GENERAL MATTERS - where respondent wished to develop his freehold land in a "rural preservation zone" as defined in local town planning scheme - where respondent granted approval to develop land as a cabin park - where respondent lodged claims for compensation for injurious affection of his interest in his land caused by amendments to town planning scheme - where respondent appealed to Planning and Environment (P & E) Court from appellant's failure to decide compensation claims - where appeal as to compensation application has not yet been heard - where respondent also applied to P & E Court to decide question of whether s 3.5(4)(c) Local Government (Planning and Environment) Act defeated his claims for compensation - where P & E Court declared that s 3.5(4)(c) does not apply to claims for compensation arising out of amended town planning scheme - where respondent appeals against declaration - whether respondent's claims for compensation for injurious affection to his interest in land are not payable because of s 3.5(4)(c) Local Government (Planning and Environment) Act - whether exception in s 3.5(4)(d) Local Government (Planning and Environment) Act might also apply to respondent's claims for compensation Integrated Planning…