Fletch Pty Ltd v Gladstone Regional Council - [2010] QPEC 63

[2010] QPEC 63

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 325 of 2008

FLETCH PTY LTD	Appellant
and
GLADSTONE REGIONAL COUNCIL & ANOR	Respondents

BRISBANE

..DATE 29/07/2010

ORDER

CATCHWORDS

Judiciary Act 1903 (Cth), s 78B
Integrated Planning Act 1997, s 4.1.23(2)(b) and generally Sustainable Planning Act 2009, s 457

Developer appeal against refusal of application for material change of use - by interlocutory application, appellant seeks "full approval of its development application", alternatively removal of the appeal to the Federal Court (as having jurisdiction) - Commonwealth and State Attorneys-General rejected or did not respond to notices of an alleged constitutional matter - no such matter or issue clearly identified - arguments that planning controls were unconstitutional, as inconsistent with landowners' common law rights, untenable in light of High Court authority - appellant ordered to pay costs of its application - appeal to proceed to hearing in the usual course.

HIS HONOUR: This is an appeal commenced on the 23rd of December 2008 in which the appellant complains of the Council's rejection of its application for a development application seeking a material change of use for visitor accommodation and a caretaker's residence, essentially a caravan park which was going to add a residential component to an existing tourist related facility.

The application before the Court today was filed only last Monday. It seeks that the Court "grant full approval of development application," and if not that it remove the proceedings to the "Federal Court, under notice of constitutional matters 78B of the Judiciary Act 1903 and have these matters heard by a Court of competent jurisdiction for such matters."

The appellant is represented by Mr Fletcher, an officer of it. He has taken the steps contemplated by section 78B which might have attracted the interest of Attorneys at Commonwealth and State level.

The only positive responses, indicating a lack of interest in becoming involved, are from the Commonwealth Attorney and the Attorneys of South Australia and Western Australia. As Mr Fletcher says, the others have had ample time to express an interest. It's reasonable to assume they have none. The respondent Council, represented by Mr Job, resists the granting of the primary relief sought in the application which, in the circumstances, one would expect to follow, if it's to occur at all, a conventional hearing on the merits.

So far as the constitutional issue is concerned, Mr Job says, not surprisingly, that he's not prepared to meet it today; indeed, his proposal was that directions be given requiring Mr Fletcher to provide particulars to clarify what his point is. He contemplated a hearing at a later date.

In my opinion the Court ought to deal with the supposed (totally undefined) constitutional issue now rather than put the parties to the additional trouble and cost which a deferred determination would necessarily involve. There's a public interest in limiting the Council's exposure to costs and Mr Fletcher has complained of the extent of costs that the appellant has…

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] QPEC 63
Decision Date: 29/07/2010

CaseChat Overview and Summary

Fletch Pty Ltd sought to appeal against the Gladstone Regional Council's refusal of their application for a material change of use for a caravan park which was going to add a residential component to an existing tourist related facility. Fletch sought full approval of their development application or, in the alternative, removal of the appeal to the Federal Court under section 78B of the Judiciary Act 1903 (Cth) on the basis of a constitutional matter. Fletch's application was made by way of an interlocutory application. The Gladstone Regional Council opposed the application and the matter proceeded to a hearing. The primary legal issue before the Court was whether there was a constitutional issue that warranted removal of the appeal to the Federal Court. Fletch argued that planning controls were unconstitutional as they were inconsistent with the common law rights of fee simple landowners. The Court rejected this argument on the basis of High Court authority, which held that planning controls do not infringe on the common law rights of fee simple landowners. The Court found that there was no constitutional issue that warranted removal of the appeal to the Federal Court. The Court also rejected Fletch's argument that the failure of a referendum to recognise local government in the Commonwealth Constitution made local government planning controls insupportable. The Court found that local government is a creature of State law and that the failure of the referendum did not generate a constitutional issue for the purposes of section 78B. The Court ordered that Fletch pay the costs of the application and that the appeal proceed to a hearing on the merits. The Court found that there was no basis for removing the appeal to the Federal Court and that the appeal should proceed in the usual course.

Orders