Fox v Brisbane City Council - [2003] QCA 330

SUPREME COURT OF QUEENSLAND

CITATION: Fox & Anor v Brisbane CC & Ors; Fox & Anor v Brisbane
CC & Anor; Stop Master Butchers Industrial Estate in
Hemmant & Tingalpa Action Group & Ors v Brisbane CC &
Anor [2003] QCA 330
PARTIES: DANIEL PATRICK FOX AND DENISE NOELLE FOX
(appellants/appellants)
v
BRISBANE CITY COUNCIL
(respondent/first respondent)
MASTER BUTCHERS LIMITED ACN 010 855 526
(co-respondent/second respondent)
STATE OF QUEENSLAND
(co-respondent by election)
DANIEL PATRICK FOX AND DENISE NOELLE FOX
(applicants/first respondents)
v
BRISBANE CITY COUNCIL
(respondent/second respondent)
MASTER BUTCHERS LIMITED ACN 010 855 526
(co-respondent/appellant)
STOP MASTER BUTCHERS INDUSTRIAL ESTATE
IN HEMMANT AND TINGALPA ACTION GROUP,
MARCUS ULRICH SCHERRER AND JANE PAULA
SCHERRER
(applicants/first respondent)
v
BRISBANE CITY COUNCIL
(respondent/second respondent)
MASTER BUTCHERS LIMITED ACN 010 855 526
(co-respondent/appellant)
FILE NO/S: Appeal No 5868 of 2002 Appeal No 8354 of 2002 Appeal No 8355 of 2002 P & E Appeal No 1386 of 2002
P & E Application No 3119 of 2002 P & E Application No 3105 of 2002
DIVISION: Court of Appeal
PROCEEDINGS: Planning and Environment Appeals
ORIGINATING
COURT: Planning and Environment Court at Brisbane
DELIVERED ON: 1 August 2003
DELIVERED AT: Brisbane
HEARING DATE: 28 March 2003
JUDGES: de Jersey CJ, Jerrard JA and White J
Separate reasons for judgment of each member of the Court,
de Jersey CJ and White J concurring as to the orders made in
Appeal No 5868 of 2002, Jerrard JA dissenting; Jerrard JA
and White J concurring as to the orders made in Appeal No
8354 of 2002 and Appeal No 8355 of 2002, de Jersey CJ
dissenting
ORDER: 1. Dismiss the appeal in Appeal No 5868 of 2002
2. Dismiss the appeal in Appeal No 8354 of 2002
3. Dismiss the appeal in Appeal No 8355 of 2002
4. Costs to be reserved pending consideration of written
submissions by the parties to be provided within seven
days
CATCHWORDS: ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – FORM AND CONTENTS OF APPLICATIONS – SECOND APPLICATION FOR SAME DEVELOPMENT – where appellants argued a preliminary point that applications for development were piecemeal – meaning of “piecemeal” as derived from Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 – where learned judge below refused to find applications were piecemeal – where considerations of convenience warranted separate applications – whether learned judge below erred in dismissing this point
ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS AND PERMITS – SUBDIVISION APPROVALS – where appellant gained council approval to develop land into 39 industrial lots – where extensive cut and fill earthworks required to reconfigure rural land – where appellant lodged two applications relating to the whole of the land – where applications divided into two stages of development – where earthworks identified in original application as “operational works” as defined by the Integrated Planning Act 1997 (Qld) – where council accepted development as code assessable only – whether learned judge erred in law in declaring council approval…

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: [2003] QCA 330
Decision Date: 1/08/2003

CaseChat Overview and Summary

The case of Fox v Brisbane City Council involved the appellants contesting the dismissal of their appeals concerning the Brisbane City Council's refusal to approve certain development applications. The appellants argued that the applications were made in a piecemeal fashion, which they believed was improper. The case was heard in the Supreme Court of Queensland, with the appeal numbers being 5868, 8354, and 8355 of 2002. The primary legal issue before the court was whether the learned judge correctly refused to find that the applications for development were piecemeal, as defined in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council. The appellants contended that the refusal to acknowledge the piecemeal nature of the applications was an error.

The court examined the meaning of "piecemeal" as established in the precedent of Pioneer Concrete, where it was noted that a development control application is considered piecemeal if it is made in parts, each part depending on the success of the other. The appellants argued that their applications were dependent on one another, which they believed constituted a piecemeal approach. However, the learned judge below found that the applications were separate, driven by considerations of convenience rather than necessity. The court found that the judge's decision was consistent with the circumstances of the case and the relevant legal principles. The appellants' argument that the piecemeal nature of the applications warranted a different outcome was not persuasive to the court.

In conclusion, the court dismissed all three appeals and ordered that costs be reserved pending further consideration of written submissions from the parties. The reasoning of the learned judge was upheld, and the court found no error in the dismissal of the appellants' contention that the applications were made in a piecemeal fashion.

Orders

Orders of the court

1. Dismiss the appeal in Appeal No 5868 of 2002

2. Dismiss the appeal in Appeal No 8354 of 2002

3. Dismiss the appeal in Appeal No 8355 of 2002

4. Costs to be reserved pending consideration of written

submissions by the parties to be provided within seven

days

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 CC & Ors; Fox & Anor v Brisbane CC & Anor; Stop Master Butchers Industrial Estate in Hemmant & Tingalpa Action Group & Ors v Brisbane CC & Anor [2003] QCA 330
PARTIES:	DANIEL PATRICK FOX AND DENISE NOELLE FOX (appellants/appellants) v BRISBANE CITY COUNCIL (respondent/first respondent) MASTER BUTCHERS LIMITED ACN 010 855 526 (co-respondent/second respondent) STATE OF QUEENSLAND (co-respondent by election)
DANIEL PATRICK FOX AND DENISE NOELLE FOX (applicants/first respondents) v BRISBANE CITY COUNCIL (respondent/second respondent) MASTER BUTCHERS LIMITED ACN 010 855 526 (co-respondent/appellant)
STOP MASTER BUTCHERS INDUSTRIAL ESTATE IN HEMMANT AND TINGALPA ACTION GROUP, MARCUS ULRICH SCHERRER AND JANE PAULA SCHERRER (applicants/first respondent) v BRISBANE CITY COUNCIL (respondent/second respondent) MASTER BUTCHERS LIMITED ACN 010 855 526 (co-respondent/appellant)
FILE NO/S:	Appeal No 5868 of 2002 Appeal No 8354 of 2002 Appeal No 8355 of 2002 P & E Appeal No 1386 of 2002
P & E Application No 3119 of 2002 P & E Application No 3105 of 2002
DIVISION:	Court of Appeal
PROCEEDINGS:	Planning and Environment Appeals
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	1 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	28 March 2003
JUDGES:	de Jersey CJ, Jerrard JA and White J Separate reasons for judgment of each member of the Court, de Jersey CJ and White J concurring as to the orders made in Appeal No 5868 of 2002, Jerrard JA dissenting; Jerrard JA and White J concurring as to the orders made in Appeal No 8354 of 2002 and Appeal No 8355 of 2002, de Jersey CJ dissenting
ORDER:	1. Dismiss the appeal in Appeal No 5868 of 2002 2. Dismiss the appeal in Appeal No 8354 of 2002 3. Dismiss the appeal in Appeal No 8355 of 2002 4. Costs to be reserved pending consideration of written submissions by the parties to be provided within seven days
CATCHWORDS:	ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – FORM AND CONTENTS OF APPLICATIONS – SECOND APPLICATION FOR SAME DEVELOPMENT – where appellants argued a preliminary point that applications for development were piecemeal – meaning of “piecemeal” as derived from Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 – where learned judge below refused to find applications were piecemeal – where considerations of convenience warranted separate applications – whether learned judge below erred in dismissing this point
ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS AND PERMITS – SUBDIVISION APPROVALS – where appellant gained council approval to develop land into 39 industrial lots – where extensive cut and fill earthworks required to reconfigure rural land – where appellant lodged two applications relating to the whole of the land – where applications divided into two stages of development – where earthworks identified in original application as “operational works” as defined by the Integrated Planning Act 1997 (Qld) – where council accepted development as code assessable only – whether learned judge erred in law in declaring council approval…