Clark v Cook Shire Council - [2006] QPEC 123

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Clark & Ors v Cook Shire Council [2006] QPEC 123

PARTIES:

BARRY JAMES CLARK and MARILYN TERESA CLARK

First Applicants

And

PATRICK HAGARTY AND MARGARET JOAN HAGARTY

Second Applicants

And

FOREVER ENDEAVOUR 796 PTY LTD (ABN 075500631)

Third Applicant

And

MINES AND INDUSTRIAL PROTECTIVE COATINGS PTY LTD (ACN 081804177)

Fourth Applicant

And

KAREN OLSEN AND SELWYN WENDT

Fifth Applicants

V

COOK SHIRE COUNCIL

Respondent

FILE NO/S:

Cairns 316/2006

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court of Queensland, Cairns

DELIVERED ON:

15 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Application dismissed

CATCHWORDS:

PLANNING – PLANNING LAW AND LEGISLATION – introduction of new planning schemes under Integrated Planning Act 1997 – meaning and effect of Schedule 1 – whether local authority obliged to give further public notice if modifications are made to previously publicised scheme of which submitters and landowners have not had notice

Integrated Planning Act 1997, Schedule 1
Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223
Australian Retailers Association v Reserve Bank of Australia [2005] 19 FCA 1707
Booth v Bosworth [2001] FCA 1453
Coco v The Queen (1993-94) 179 CLR 427
Cox v Maroochy Shire Council [2006] QPEC 051
Foster v Minister for Customs (2000) 200 CLR 442
Hawkesbury City Council v NSW Minister for Infrastructure & Planning [2004] NSWLEC 188
Leichhardt Municipal Council v Minister for Planning (1995) 87 LGERA 78
Lyons v Misty Morn Developments Pty Ltd [1998] QPELR 268
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Education v Eshetu (1999) 197 CLR 611
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v Atwell, ex parte Jullie (2002) 2 Qd R 367

Qwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291
Resort Management Services v Noosa Shire Council (1995) 1 Qd R 311
Shoreline Park Pty Ltd v Mackay City Council [2006] QPELR 521
Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337

COUNSEL:

S Keim SC for applicants

S Fynes-Clinton for respondent

SOLICITORS:

David Kempton for applicants

King and Company for respondent

The Integrated Planning Act 1997 (IPA) contains, in Chapter 2 Division 3 and Schedule 1, provisions concerning the manner in which local authorities must prepare and introduce new planning schemes. In this case the question is whether or not Cook Shire Council has correctly followed those procedures. The applicants’ complaint is that they were, in effect, ambushed at a late stage in the process and improperly denied the opportunity to make submissions about modifications to an earlier form of the new scheme which affect their land, but to which they were not previously alerted. Council concedes that the changes were made without any warning or the opportunity for further submissions from the applicants but contends that is permissible under IPA, in the circumstances arising here.

IPA compelled…

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] QPEC 123
Decision Date: 15 December 2006

CaseChat Overview and Summary

The case of Clark v Cook Shire Council was heard in the Queensland Supreme Court. The matter involved the Cook Shire Council's introduction of a new planning scheme under the Integrated Planning Act 1997. The applicant, Mr. Clark, a landowner within the area affected by the new planning scheme, contested the validity of the Council's process in amending the previously publicised scheme, asserting that the Council did not provide further public notice as required. The central issue before the court was whether the Council was obliged to give additional public notice when modifications were made to a scheme that had already been publicised, especially when the submitters and landowners had not been notified of these changes.

The court examined the statutory framework provided by the Integrated Planning Act 1997 and its Schedule 1, which outlines the procedures for introducing new planning schemes. It was necessary to determine whether the legislative intent mandated that public notice be given each time a scheme is modified, even if the initial scheme had already been made public. The court considered the legislative language and the procedural fairness inherent in the planning process, weighing the importance of public participation against the administrative burdens imposed by repeated notifications. Ultimately, the court concluded that the legislative provisions did not explicitly require additional public notice for modifications made to a previously publicised scheme, and therefore, the Council's actions were in accordance with the law.

Given the court's reasoning, it held that the Cook Shire Council was not obliged to provide further public notice if modifications were made to a planning scheme that had already been publicised. Consequently, the application by Mr. Clark was dismissed, affirming the Council's compliance with the statutory requirements under the Integrated Planning Act 1997.

Orders

Orders of the court

Application dismissed

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:	Clark & Ors v Cook Shire Council [2006] QPEC 123
PARTIES:	BARRY JAMES CLARK and MARILYN TERESA CLARK First Applicants And PATRICK HAGARTY AND MARGARET JOAN HAGARTY Second Applicants And FOREVER ENDEAVOUR 796 PTY LTD (ABN 075500631) Third Applicant And MINES AND INDUSTRIAL PROTECTIVE COATINGS PTY LTD (ACN 081804177) Fourth Applicant And KAREN OLSEN AND SELWYN WENDT Fifth Applicants V COOK SHIRE COUNCIL Respondent
FILE NO/S:	Cairns 316/2006
DIVISION:	Planning and Environment
PROCEEDING:	Originating Application
ORIGINATING COURT:	Planning and Environment Court of Queensland, Cairns
DELIVERED ON:	15 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	12 December 2006
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Application dismissed
CATCHWORDS:	PLANNING – PLANNING LAW AND LEGISLATION – introduction of new planning schemes under Integrated Planning Act 1997 – meaning and effect of Schedule 1 – whether local authority obliged to give further public notice if modifications are made to previously publicised scheme of which submitters and landowners have not had notice Integrated Planning Act 1997, Schedule 1 Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223 Australian Retailers Association v Reserve Bank of Australia [2005] 19 FCA 1707 Booth v Bosworth [2001] FCA 1453 Coco v The Queen (1993-94) 179 CLR 427 Cox v Maroochy Shire Council [2006] QPEC 051 Foster v Minister for Customs (2000) 200 CLR 442 Hawkesbury City Council v NSW Minister for Infrastructure & Planning [2004] NSWLEC 188 Leichhardt Municipal Council v Minister for Planning (1995) 87 LGERA 78 Lyons v Misty Morn Developments Pty Ltd [1998] QPELR 268 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Education v Eshetu (1999) 197 CLR 611 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Atwell, ex parte Jullie (2002) 2 Qd R 367 Qwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291 Resort Management Services v Noosa Shire Council (1995) 1 Qd R 311 Shoreline Park Pty Ltd v Mackay City Council [2006] QPELR 521 Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337
COUNSEL:	S Keim SC for applicants S Fynes-Clinton for respondent
SOLICITORS:	David Kempton for applicants King and Company for respondent