Clark v Cook Shire Council - [2007] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

Clark & Ors v Cook Shire Council [2007] QCA 139

PARTIES:

BARRY JAMES CLARK and MARILYN TERESA CLARK
(first applicants/first appellants)
PATRICK HAGARTY and MARGARET JOAN HAGARTY
(second applicants/second appellants)
FOREVER ENDEAVOUR 796 PTY LTD ACN 075 500 631
(third applicant/third appellant)
MINES AND INDUSTRIAL PROTECTIVE COATINGS PTY LTD ACN 081 804 177
(fourth applicant/fourth appellant)
KAREN OLSEN and SELWYN WENDT
(fifth applicants/fifth appellants)
v
COOK SHIRE COUNCIL
(respondent/respondent)

FILE NO/S:

Appeal No 11323 of 2006
P & E Appeal No 316 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

Planning and Environment Court at Cairns

DELIVERED ON:

27 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2007

JUDGES:

Williams and Keane JJA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Leave to appeal granted
2. Appeal dismissed
3. Applicants to pay the respondent's costs of the application and appeal

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where respondent notified public of proposed planning scheme – where submissions received in respect of notified scheme – where respondent sought to implement modified scheme – whether proper construction of s 16(2) of Sch 1 of Integrated Planning Act 1997 (Qld) obliged respondent to recommence notification process

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – meaning of "significant difference" in s 16(2) of Sch 1 of Integrated Planning Act 1997 (Qld)

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – whether decision of Council to implement modified scheme was unreasonable

Integrated Planning Act 1997 (Qld), s 2.1, s 12 of Sch 1, s 14 of Sch 1, s 15 of Sch 1, s 16 of Sch 1, s 17 of Sch 1

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, applied

Buck v Bavone (1976) 135 CLR 110, applied
Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78, distinguished
Rajendran v Tonkin (2004) 9 VR 414, applied
Resort Management Services Limited v Noosa Shire Council [1995] 1 Qd R 311; [1993] QCA 347, applied
Shoreline Park Pty Ltd v Mackay City Council [2006] QPEC 020, distinguished
Vanmeld Pty Ltd v Fairfield City Council & Anor [1999] 46 NSWLR 78, distinguished

COUNSEL:

S Keim SC, with N Kidson, for the applicants/appellants
M Hinson SC, with S P Fynes-Clinton, for the respondent

SOLICITORS:

David Kempton for the applicants/appellants
King and Company for the respondent

WILLIAMS JA:The applicants seek leave pursuant to s 4.1.56 of the Integrated Planning Act1997 (Qld) ("the Act") to agitate the correct construction of s 16(2) of Schedule 1 of the Act. That provision is part of the procedure which must be followed by a local authority when making or amending a planning scheme and it must be considered in…

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: [2007] QCA 139
Decision Date: 27 April 2007

CaseChat Overview and Summary

In the matter of Clark v Cook Shire Council, the respondents, Cook Shire Council, had notified the public of a proposed planning scheme and received submissions in respect of the notified scheme. The Council then sought to implement a modified scheme, which the applicants challenged. The applicants contended that the Council was obliged to recommence the notification process due to the significant changes made to the planning scheme. The primary legal issue was the proper construction of section 16(2) of Schedule 1 of the Integrated Planning Act 1997 (Qld), which provides that the Council is not required to recommence the notification process if there is no significant difference between the notified scheme and the proposed scheme. The court had to determine whether the changes made by the Council were significant enough to require recommencing the notification process.

The court considered the meaning of "significant difference" in section 16(2) and whether the Council's decision to implement the modified scheme was unreasonable. The court held that the Council was not required to recommence the notification process as the changes made to the planning scheme did not amount to a significant difference. The court further held that the Council's decision to implement the modified scheme was not unreasonable, as it had considered the submissions received in respect of the notified scheme and had made changes to the planning scheme in response to those submissions.

The court granted leave to appeal, dismissed the appeal, and ordered the applicants to pay the respondents' costs of the application and appeal. The court held that the Council had not acted unreasonably in implementing the modified scheme and that the changes made to the planning scheme did not amount to a significant difference. The court's decision clarifies the obligations of local councils in relation to planning schemes and the meaning of "significant difference" in section 16(2) of Schedule 1 of the Integrated Planning Act 1997 (Qld).

Orders

Orders of the court

1. Leave to appeal granted

2. Appeal dismissed

3. Applicants to pay the respondent's costs of the application and appeal

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 [2007] QCA 139
PARTIES:	BARRY JAMES CLARK and MARILYN TERESA CLARK (first applicants/first appellants) PATRICK HAGARTY and MARGARET JOAN HAGARTY (second applicants/second appellants) FOREVER ENDEAVOUR 796 PTY LTD ACN 075 500 631 (third applicant/third appellant) MINES AND INDUSTRIAL PROTECTIVE COATINGS PTY LTD ACN 081 804 177 (fourth applicant/fourth appellant) KAREN OLSEN and SELWYN WENDT (fifth applicants/fifth appellants) v COOK SHIRE COUNCIL (respondent/respondent)
FILE NO/S:	Appeal No 11323 of 2006 P & E Appeal No 316 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Integrated Planning Act
ORIGINATING COURT:	Planning and Environment Court at Cairns
DELIVERED ON:	27 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2007
JUDGES:	Williams and Keane JJA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Leave to appeal granted 2. Appeal dismissed 3. Applicants to pay the respondent's costs of the application and appeal
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where respondent notified public of proposed planning scheme – where submissions received in respect of notified scheme – where respondent sought to implement modified scheme – whether proper construction of s 16(2) of Sch 1 of Integrated Planning Act 1997 (Qld) obliged respondent to recommence notification process STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – meaning of "significant difference" in s 16(2) of Sch 1 of Integrated Planning Act 1997 (Qld) ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – whether decision of Council to implement modified scheme was unreasonable Integrated Planning Act 1997 (Qld), s 2.1, s 12 of Sch 1, s 14 of Sch 1, s 15 of Sch 1, s 16 of Sch 1, s 17 of Sch 1 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, applied Buck v Bavone (1976) 135 CLR 110, applied Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78, distinguished Rajendran v Tonkin (2004) 9 VR 414, applied Resort Management Services Limited v Noosa Shire Council [1995] 1 Qd R 311; [1993] QCA 347, applied Shoreline Park Pty Ltd v Mackay City Council [2006] QPEC 020, distinguished Vanmeld Pty Ltd v Fairfield City Council & Anor [1999] 46 NSWLR 78, distinguished
COUNSEL:	S Keim SC, with N Kidson, for the applicants/appellants M Hinson SC, with S P Fynes-Clinton, for the respondent
SOLICITORS:	David Kempton for the applicants/appellants King and Company for the respondent