Esk Shire Council v John Jackson (First )

[2000] QCA 471

[2000] QCA 471

COURT OF APPEAL

de JERSEY CJ
PINCUS JA
WILLIAMS J

Appeal No 8976 of 2000

ESK SHIRE COUNCIL                  Respondent (Applicant)

and

JOHN JACKSON           First Applicant (First Respondent)

and

WWW GENEBANK PTY LTD  Second Applicant (Second Respondent)

and

HITEC RESOURCES PTY LTD Third Applicant (Third Respondent)

BRISBANE

..DATE 17/11/2000

JUDGMENT

THE CHIEF JUSTICE:  This is an application for leave to appeal from a decision of the Planning and Environment Court given on 6 September 2000.

The learned Judge declared that the use of particular land fell outside the ambit of a town planning consent permit.  That permit authorised use of the land for the screening of gravel.

His Honour's essential finding on my reading of the judgment was this.  The use of water in the screening process surpassed what was necessary to separate the gravel from the waste and amounted to the washing of sand intended for profitable sale.  That, I believe, may be distilled from these passages in the judgment:

"In the respondent's operations, washing of gravel and/or sand is being carried out in a fashion that cannot reasonably be regarded as coming within the permitted "screening."

Later:

"The sand produced is more than the waste from gravel production...the respondents are voluntarily engaging in processing activities in respect of the sand which cannot be seen as necessarily part of the gravel enterprise although they might be incidental to it."

The orders the Judge made were consequent upon that primary approach.  The applicants have submitted that in making these findings, the Judge erred in law by misconstruing the permit.

As mentioned by Mr Justice Pincus during the submissions for the applicants, the term in the permit "screening of gravel" carries either what might be called an ordinary meaning or a trade meaning of which there was evidence apparently accepted by the Judge.

Whether the facts of this case as found by the Judge fell within either meaning was a question of fact, not a question of law.

I would accordingly refuse the application with costs to be assessed.

PINCUS JA:  I agree.  We do not have the evidence before
us, but we have had a useful explanation of it given by
Mr Hughes.  The Court system at present makes the decision of Judge Robin appeal-proof unless an error of law or want of jurisdiction can be shown.

Mr Hughes in his able argument had difficulty, with respect, in identifying anything which could be called an error of law and, like the Chief Justice, I am of the view that the questions before the primary Judge were essentially factual.  I agree with the order proposed.

WILLIAMS J:  I agree with what has been said by each of my colleagues.

THE CHIEF JUSTICE:  The application is refused with costs to be assessed.

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