Cameron v Noosa Shire Council - [2005] QPEC 55

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Cameron v Noosa Shire Council [2005] QPEC 055

PARTIES:

IAN MILNE DIXON CAMERON

Appellant

NOOSA SHIRE COUNCIL

Respondent

FILE NO:

84 of 1995

PROCEEDING:

Application

DELIVERED ON:

22 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2005

JUDGE:

Judge Brabazon QC

ORDER:

Declare that section 3.5(4)(c) of the Local Government (Planning and Environment) Act 1990 does not apply to any claim for compensation arising out of the amendment of the Town Planning Scheme for the Shire of Noosa, dated 14 November 1991.

CATCHWORDS:

Valuation of land – injurious affection – compensation – Rezoning – Whether claim for compensation precluded - Local Government (Planning and Environment) Act 1990 ss3.5(4)(c); 3.5(4)(d)

Baker v Cumberland Country Council (1956) 1 LGRA 321

Jones v Gosford Shire Council (1975) 33 LGRA 368

Kettering Pty Ltd v Noosa Shire Council (2004) 134 LGERA 99

Leisuremark Australia Pty Ltd v Council of the Shire of Noosa (No.1) [1994] QPLR 263

TM Burke Estates Pty Ltd v Noosa Shire Council [1998] 2 Qd R 448

COUNSEL:

Mr R Litster (Applicant)

Mr T Trotter (Respondent)

SOLICITORS:

Hopgood Ganim Lawyers for the Applicant

Wakefield Sykes for the Respondent

The Application

This is a case about compensation for injurious affection to land.

This claim has been on foot for years. It is getting close to a hearing. On 3 February 2005 Judge Rackemann allowed it to proceed, and made directions, with the aim of having the claim heard over 10 days in August.

The Council says that Mr Cameron will never recover compensation, in any event, because of the terms of the former Local Government (Planning and Environment) Act 1990. As its solicitor’s letter of 3 March 2005 puts it:

“Further, or in the alternative, if it is found that (Mr Cameron’s) interest in land, giving rise to the claim, was injuriously affected by clause 65A then compensation is not payable pursuant to section 3.5(4)(c) of the Local Government (Planning and Environment) Act 1990 because the provision in question was a provision which by its operation ‘prescribes…the number of buildings…the density…or character of buildings or other structures’.”

Mr Cameron’s solicitors responded this way:

“Our client is keen to contain costs and does not see any sense in preparing for a 10 day hearing in August, including the preparation of evidence on the `build-ability’ issues recently raised, the result of which might be determined in your client’s favour by a one day hearing as to the availability of the statutory defence your client has raised, based upon Division 7, clause 65A of the relevant planning scheme, and section 3.5(4)(c) of the repealed Act.
Do you agree that it is sensible to approach the court now to have this point set down for preliminary determination prior to preparation continuing for the merits hearing?...”

The Council resisted any preliminary hearing, on the basis that all factual issues would have to be investigated, in any event.

The question about s3.5(4)(c) is one of law. This court 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.

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Details

Case: [2005] QPEC 55
Decision Date: 22 July 2005

CaseChat Overview and Summary

Cameron brought an action against Noosa Shire Council over claims related to the rezoning of a parcel of land in 1991. The plaintiff alleged that the rezoning led to injurious affection of his property, reducing its value and thereby entitling him to compensation. The case was heard and determined in the Queensland Supreme Court.

The primary legal issue before the court was whether the statutory provisions of the Local Government (Planning and Environment) Act 1990 precluded the plaintiff's claim for compensation. Specifically, the court had to consider sections 3.5(4)(c) and 3.5(4)(d) of the Act, which set out exceptions to the general rule that a person who benefits from a planning scheme amendment is not entitled to compensation. The court needed to interpret these sections to determine their applicability to the plaintiff's claim.

The court found that the statutory provisions did not apply to the plaintiff's claim for compensation. It held that section 3.5(4)(c) was inapplicable because it related to the preservation of the character of the area, which was not relevant to the plaintiff's situation. The court further found that section 3.5(4)(d) was also inapplicable as it dealt with the avoidance of significant adverse impact on a person, which was not the case here. The court emphasised that the statutory provisions were exceptions to the general rule and should be narrowly construed. As a result, the plaintiff's claim for compensation was not precluded by the statutory provisions.

The court declared that section 3.5(4)(c) of the Local Government (Planning and Environment) Act 1990 did not apply to the plaintiff's claim for compensation arising from the amendment of the Town Planning Scheme for the Shire of Noosa, dated 14 November 1991. This declaration allowed the plaintiff to proceed with his claim for compensation in the court.

Orders

Orders of the court

Declare that section 3.5(4)(c) of the Local Government (Planning and Environment) Act 1990 does not apply to any claim for compensation arising out of the amendment of the Town Planning Scheme for the Shire of Noosa, dated 14 November 1991.

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 Shire Council [2005] QPEC 055
PARTIES:	IAN MILNE DIXON CAMERON Appellant NOOSA SHIRE COUNCIL Respondent
FILE NO:	84 of 1995
PROCEEDING:	Application
DELIVERED ON:	22 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	15 July 2005
JUDGE:	Judge Brabazon QC
ORDER:	Declare that section 3.5(4)(c) of the Local Government (Planning and Environment) Act 1990 does not apply to any claim for compensation arising out of the amendment of the Town Planning Scheme for the Shire of Noosa, dated 14 November 1991.
CATCHWORDS:	Valuation of land – injurious affection – compensation – Rezoning – Whether claim for compensation precluded - Local Government (Planning and Environment) Act 1990 ss3.5(4)(c); 3.5(4)(d) Baker v Cumberland Country Council (1956) 1 LGRA 321 Jones v Gosford Shire Council (1975) 33 LGRA 368 Kettering Pty Ltd v Noosa Shire Council (2004) 134 LGERA 99 Leisuremark Australia Pty Ltd v Council of the Shire of Noosa (No.1) [1994] QPLR 263 TM Burke Estates Pty Ltd v Noosa Shire Council [1998] 2 Qd R 448
COUNSEL:	Mr R Litster (Applicant) Mr T Trotter (Respondent)
SOLICITORS:	Hopgood Ganim Lawyers for the Applicant Wakefield Sykes for the Respondent