Fox v Brisbane City Council - [2002] QPEC 49

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Fox & Anor v Brisbane City Council [2002] QPEC 049

PARTIES:

DANIEL PATRICK FOX AND DENISE NOELLE FOX
Appellants
v
BRISBANE CITY COUNCIL
Respondent
and
MASTER BUTCHERS LIMITED
(ACN 010 855 526)
Co-respondent
and
STATE OF QUEENSLAND
Co-respondent by Election

FILE NO:
FILE NO:

3119 of 2002

AND

STOP MASTER BUTCHERS INDUSTRIAL ESTATE IN HEMMANT AND TINGALPA ACTION GROUP
and
MARCUS ULRICH SCHERRER AND JANE PAULA SCHERRER
Applicants
and
BRISBANE CITY COUNCIL
Respondent
and
MASTER BUTCHERS LTD ACN 010 855 526
Co-Respondent

3105 of 2002

PROCEEDING:

Applications for declarations

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 September 2002

DELIVERED AT:

Brisbane

HEARING DATES:

9 August and 3 September 2002

JUDGE:

Judge Brabazon QC

ORDER:

Declare approval invalid

CATCHWORDS:

LOCAL GOVERNMENT – Town planning – applications for declarations – where Council granted development approval for industrial purposes – where validity of approval challenged – whether development impact assessable (and whether public notification required) – whether a “material change of use” – Stage 1 approval held to be invalid – declarations granted.

Integrated Planning Act (Qld) 1997 Local Government (Planning and Environment) Act (Qld) 1990

C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 City Apartments v Hall (2001) 118 LGERA 344 Clayton v Miriam Vale Shire Council [2000] QPELR 320 Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189 Durham County Council v Lafarge Redland Aggregates Limited ex parte Elaine Lowther [2001] EWCA Civ 781 (24 May 2001) Greatlife Pty Ltd v Brisbane City Council [2001] QPELR 42 Hall v Development Assessment Commission & Anor [2001] SASC 89 Impey v Secretary of State for the Environment [1981] JPL 363 Noosa Shire Council v Settlers Cove (1996) 93 LGERA 232 Northavon District Council v Secretary of State for the Environment (1980) 40 P & CR 332 Parkes v Secretary of State for the Environment [1979] 1 All ER 211 Parramatta City Council v Shell Company of Australia Ltd (1972) 26 LGRA 25 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 45 Project Blue Sky v The ABC (1998) 194 CLR 355 Queensland Investment Corp and Longhurst v Gold Coast City Council [2001] QPELR 83 R v Smith; Ex parte Queensland Aggregates Pty Ltd [1981] QdR 618 Scurr v Brisbane City Council (1973) 133 CLR 242 Shell Company of Australia Ltd v Parramatta City Council (1972) 27 LGRA 102 State of Queensland v Ipswich City Council & Ors [2002] QPEC 035 (30 May 2002) Tasker v Fullwood [1978] 1 NSWLR 20 Victoria v The Commonwealth (1975) 134 CLR 81 West Bowers Farm Development v Essex CC (1985) 50 P & CR 368

COUNSEL:

Mr B Cronin for the appellants
Mr S Keliher for the Stop Master Butchers Action Group
Mr M Rackemann for the respondent
Mr M Hinson for the co-respondent
Mr E Morzone for the co-respondent by election

SOLICITORS:

Brisbane City Legal Practice for the respondent
Freehills for the co-respondent Crown Law for the co-respondent by…

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: [2002] QPEC 49
Decision Date: 6 September 2002

CaseChat Overview and Summary

Fox commenced proceedings against Brisbane City Council seeking declarations that the Council's decision to grant development approval for a particular property was invalid. The development approval was granted for industrial purposes and the applicant argued that the approval process did not comply with relevant planning laws. Specifically, the applicant claimed that the development impact was assessable and required public notification, and that the approval constituted a material change of use. The matter was heard and determined in the Queensland Land Court.

The court was required to decide whether the development impact was assessable and, if so, whether public notification was required. The court also had to determine whether the approval constituted a material change of use. The court examined the relevant planning laws and the evidence presented by the parties to make its determination.

The court found that the development impact was assessable and that public notification was required. The court also found that the approval constituted a material change of use. As a result, the court held that the approval was invalid and granted the declarations sought by the applicant. The court's decision was based on a detailed analysis of the evidence and the relevant planning laws.

The court made declarations that the development approval granted by the Council was invalid. The court's decision provides guidance on the application of planning laws to development approvals and the importance of complying with relevant notification requirements.

Orders

Orders of the court

Declare approval invalid

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:	Fox & Anor v Brisbane City Council [2002] QPEC 049
PARTIES:	DANIEL PATRICK FOX AND DENISE NOELLE FOX Appellants v BRISBANE CITY COUNCIL Respondent and MASTER BUTCHERS LIMITED (ACN 010 855 526) Co-respondent and STATE OF QUEENSLAND Co-respondent by Election
FILE NO: FILE NO:	3119 of 2002 AND STOP MASTER BUTCHERS INDUSTRIAL ESTATE IN HEMMANT AND TINGALPA ACTION GROUP and MARCUS ULRICH SCHERRER AND JANE PAULA SCHERRER Applicants and BRISBANE CITY COUNCIL Respondent and MASTER BUTCHERS LTD ACN 010 855 526 Co-Respondent 3105 of 2002
PROCEEDING:	Applications for declarations
ORIGINATING COURT:	Brisbane
DELIVERED ON:	6 September 2002
DELIVERED AT:	Brisbane
HEARING DATES:	9 August and 3 September 2002
JUDGE:	Judge Brabazon QC
ORDER:	Declare approval invalid
CATCHWORDS:	LOCAL GOVERNMENT – Town planning – applications for declarations – where Council granted development approval for industrial purposes – where validity of approval challenged – whether development impact assessable (and whether public notification required) – whether a “material change of use” – Stage 1 approval held to be invalid – declarations granted. Integrated Planning Act (Qld) 1997 Local Government (Planning and Environment) Act (Qld) 1990 C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 City Apartments v Hall (2001) 118 LGERA 344 Clayton v Miriam Vale Shire Council [2000] QPELR 320 Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189 Durham County Council v Lafarge Redland Aggregates Limited ex parte Elaine Lowther [2001] EWCA Civ 781 (24 May 2001) Greatlife Pty Ltd v Brisbane City Council [2001] QPELR 42 Hall v Development Assessment Commission & Anor [2001] SASC 89 Impey v Secretary of State for the Environment [1981] JPL 363 Noosa Shire Council v Settlers Cove (1996) 93 LGERA 232 Northavon District Council v Secretary of State for the Environment (1980) 40 P & CR 332 Parkes v Secretary of State for the Environment [1979] 1 All ER 211 Parramatta City Council v Shell Company of Australia Ltd (1972) 26 LGRA 25 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 45 Project Blue Sky v The ABC (1998) 194 CLR 355 Queensland Investment Corp and Longhurst v Gold Coast City Council [2001] QPELR 83 R v Smith; Ex parte Queensland Aggregates Pty Ltd [1981] QdR 618 Scurr v Brisbane City Council (1973) 133 CLR 242 Shell Company of Australia Ltd v Parramatta City Council (1972) 27 LGRA 102 State of Queensland v Ipswich City Council & Ors [2002] QPEC 035 (30 May 2002) Tasker v Fullwood [1978] 1 NSWLR 20 Victoria v The Commonwealth (1975) 134 CLR 81 West Bowers Farm Development v Essex CC (1985) 50 P & CR 368
COUNSEL:	Mr B Cronin for the appellants Mr S Keliher for the Stop Master Butchers Action Group Mr M Rackemann for the respondent Mr M Hinson for the co-respondent Mr E Morzone for the co-respondent by election
SOLICITORS:	Brisbane City Legal Practice for the respondent Freehills for the co-respondent Crown Law for the co-respondent by…