Eames v Brisbane City Council - [2010] QCA 326

SUPREME COURT OF QUEENSLAND

CITATION:

Eames v Brisbane City Council & Anor [2010] QCA 326

PARTIES:

ANN-MARIE EAMES
(appellant/applicant)
v
BRISBANE CITY COUNCIL
(respondent/first respondent)
PROMOSEVEN PTY LTD
(co-respondent/second respondent)

FILE NO/S:

Appeal No 3674 of 2010
P & E Appeal No 1688 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

23 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2010

JUDGES:

Holmes and Muir JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal is refused.1.

The applicant must pay the first and second respondents’ costs of the application to be assessed.2.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL –APPLICATIONS – FORM AND CONTENTS OF APPLICATION – VALIDITY OF APPLICATION GENERALLY – where appellant appealed to Planning and Environment Court (P & E Court) against first respondent’s approval of second respondent’s development application – where appellant raised jurisdictional issue that was decided against the appellant in a preliminary decision of P & E Court – where appellant seeks leave to appeal against decision – where development application applies to the second respondent’s land and land over which there is an access easement in favour of the second respondent’s land – where appellant claims development application not properly made because written consent of owner of servient tenement not obtained as required by s 3.2.1 Integrated Planning Act 1997 (Qld) (the Act) – whether s 3.2.1(12) of the Act applies – whether development application properly made

Integrated Planning Act 1997 (Qld) (repealed), s 1.3.2, s 1.3.4, s 1.3.5, s 3.2.1
Sustainable Planning Act 2009 (Qld), s 263

Barro Group Pty Ltd v Redland Shire Council (2009) 169 LGERA 326; [2009] QCA 310, considered
Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd, ex parte Kwiksnax Mobile Industrial and General Caterers Pty Limited [1991] 1 Qd R 125, cited
Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45, cited

COUNSEL:

S P Fynes-Clinton for the applicant
T N Trotter for the first respondent
R Litster SC, with B G Cronin, for the second respondent

SOLICITORS:

DLA Phillips Fox for the applicant
Brisbane City Legal Practice for the first respondent
Courtice Neilsen Lawyers for the second respondent

HOLMES JA: I agree with the reasons of Mullins J and with the orders she proposes.

MUIR JA: I agree with the reasons of Mullins J and with the orders she proposes.

MULLINS J: In August 2008 the second respondent made a development application to the Brisbane City Council in respect of the land situated at 525A Coronation Drive, Toowong, and described as Lot 24 on SP114135 (Lot 24) and Easement B on SP139833. By a negotiated decision notice made by the Council’s delegate on 22 April 2009, the development application was approved, subject to conditions (the decision).…

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: [2010] QCA 326
Decision Date: 23 November 2010

CaseChat Overview and Summary

In the Planning and Environment Court, the appellant, Eames, appealed against the Brisbane City Council's approval of a development application by the second respondent. The dispute centred on the form and contents of the development application, specifically the appellant's contention that the application was invalid because the written consent of the owner of a servient tenement, required by section 3.2.1 of the Integrated Planning Act 1997 (Qld), was not obtained. The appellant argued that the development application was not properly made as a result. The court was tasked with determining whether section 3.2.1(12) of the Act applied and whether the development application was properly made.

The legal issues before the court involved the interpretation of section 3.2.1 of the Act and the procedural requirements for making a valid development application. The appellant contended that the absence of the required consent invalidated the application, while the respondents argued that the consent was not necessary under the circumstances. The court had to consider the statutory language and the context in which the development application was made to determine the validity of the application.

The court found that the requirement for written consent under section 3.2.1 did not apply in this case, as the conditions specified in section 3.2.1(12) were not met. The court concluded that the development application was properly made and dismissed the appellant's appeal. The court also refused the appellant's application for leave to appeal against the earlier decision of the court.

The court ordered that the application for leave to appeal be refused and that the appellant must pay the first and second respondents' costs of the application, to be assessed.

Orders

Orders of the court

Application for leave to appeal is refused.1.

The applicant must pay the first and second respondents’ costs of the application to be assessed.2.

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:	Eames v Brisbane City Council & Anor [2010] QCA 326
PARTIES:	ANN-MARIE EAMES (appellant/applicant) v BRISBANE CITY COUNCIL (respondent/first respondent) PROMOSEVEN PTY LTD (co-respondent/second respondent)
FILE NO/S:	Appeal No 3674 of 2010 P & E Appeal No 1688 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Integrated Planning Act
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	23 November 2010
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2010
JUDGES:	Holmes and Muir JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal is refused.1. The applicant must pay the first and second respondents’ costs of the application to be assessed.2.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL –APPLICATIONS – FORM AND CONTENTS OF APPLICATION – VALIDITY OF APPLICATION GENERALLY – where appellant appealed to Planning and Environment Court (P & E Court) against first respondent’s approval of second respondent’s development application – where appellant raised jurisdictional issue that was decided against the appellant in a preliminary decision of P & E Court – where appellant seeks leave to appeal against decision – where development application applies to the second respondent’s land and land over which there is an access easement in favour of the second respondent’s land – where appellant claims development application not properly made because written consent of owner of servient tenement not obtained as required by s 3.2.1 Integrated Planning Act 1997 (Qld) (the Act) – whether s 3.2.1(12) of the Act applies – whether development application properly made Integrated Planning Act 1997 (Qld) (repealed), s 1.3.2, s 1.3.4, s 1.3.5, s 3.2.1 Sustainable Planning Act 2009 (Qld), s 263 Barro Group Pty Ltd v Redland Shire Council (2009) 169 LGERA 326; [2009] QCA 310, considered Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd, ex parte Kwiksnax Mobile Industrial and General Caterers Pty Limited [1991] 1 Qd R 125, cited Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45, cited
COUNSEL:	S P Fynes-Clinton for the applicant T N Trotter for the first respondent R Litster SC, with B G Cronin, for the second respondent
SOLICITORS:	DLA Phillips Fox for the applicant Brisbane City Legal Practice for the first respondent Courtice Neilsen Lawyers for the second respondent