Dwyer v Brisbane City Council and Hebron Spry Pty Ltd

[1995] QCA 514

IN THE COURT OF APPEAL	[1995] QCA 514
SUPREME COURT OF QUEENSLAND	Appeal No. 119 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Mackenzie J.

[Dwyer v. Brisbane City Council]

BETWEEN:

DONALD L. DWYER

(Appellant) Appellant

AND:

BRISBANE CITY COUNCIL

(Respondent) First Respondent

AND:

HEBRON SPRY PTY LTD

(Respondent by Election) Second Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21/11/1995

This is an appeal from a decision of the Planning and Environment Court on 19 May 1995.

The dispute has taken a curious course. Brisbane City Council is the owner of land at Graceville known

as Faulkner Park, and has leased a substantial area of that land, totalling over 29,000 sq.m., to the

Western Districts Netball Association Incorporated, an incorporated association under the Associations

Incorporation Act 1981. The leased land is zoned “Sport and Recreation”, and includes the Association’s clubhouse, together with about 20 netball courts with associated structures, including

posts, lighting, etc. The Association’s architect applied to the Council for its consent to an extension

of the clubhouse, involving a total addition of about 1,646 sq.m. Mr Dwyer, a nearby resident,

objected, and, when the Council granted the application, appealed to the Planning and Environment

Court. The Association, through its architect, then changed tack and asked the Planning and

Environment Court to dismiss Mr Dwyer’s appeal on the basis that it need not have made the

application because the Council’s consent was not required. The Planning and Environment Court

upheld that contention, and dismissed Mr Dwyer’s appeal to that Court. Mr Dwyer has now appealed

to this Court.

The Association’s clubhouse, with the proposed extension, will constitute a “club” as defined in the

Town Plan, i.e.:

“premises to which the public does not resort which are used or intended for use by a club, lodge, friendly society or like organisation as a place for meetings of, social intercourse among, or entertainment of the members ... but does not include:

(a)         any premises, place or part of any premises or place elsewhere defined in this section;

(b)        any premises used for any purpose or activity elsewhere defined in this section;

...”

One of the purposes defined elsewhere in the section is “Outdoor Sport and Recreation”, which plainly

includes the activities connected with the use of the netball courts and associated structures.

Consequently, as the Planning and Environment Court Judge held, those courts and associated

structures are not part of the Association’s “club”.

On the information available, it follows that, after the proposed extension, the Association’s “club” will be on land owned by the Council and less than 10% of the area contained within the boundary of the

Sport and Recreation Zone, and the total area within the boundary developed for the purpose will be

less than 15% of the area contained within the boundary. Mr Dwyer’s submission to the contrary

depended on the proposition, which is incorrect on the information placed before the Planning and

Environment Court, that the netball courts and associated structures formed part of the Association’s

“club”.

It follows that the proposed extension is permissible without the Council’s consent, since the proposal

falls within column 2 of the Table of Zones.

While we are unpersuaded that the order made by the Planning and Environment Court was entirely

appropriate, the substantive issue was debated in this Court, which should dispose of it rather than leave

the parties to waste time and money in unnecessary litigation. In the circumstances, the preferable

course is to dismiss Mr Dwyer’s appeal to this Court, but he should not be ordered to pay costs in

circumstances in which the other parties are responsible for what has been a futile exercise and

associated confusion.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 119 of 1995
Brisbane
[Dwyer v. Brisbane City Council]
BETWEEN:

DONALD L. DWYER

(Appellant) Appellant

AND:

BRISBANE CITY COUNCIL

(Respondent) First Respondent

AND:

HEBRON SPRY PTY LTD

(Respondent by Election) Second Respondent

FITZGERALD P.
DAVIES J.A.

MACKENZIE J.

Judgment delivered 21/11/1995

REASONS FOR JUDGMENT - THE COURT

APPEAL DISMISSED WITH NO ORDER AS TO COSTS.

respondent to extend clubhouse in an area zoned Sport and Recreation.

Counsel:	Appellant appeared on his own behalf M. Rackemann for the First Respondent R. Litster for the Second Respondent
Solicitors:	Brisbane City Council Legal Services for the First Respondent Craig Smith for the Second Respondent
Date(s) of Hearing:	20 October 1995