Hamill v Brisbane City Council

[2004] QPEC 30

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION: 

Hamill & Anor v Brisbane City Council & Pretirement
Resorts Pty Ltd [2004] QPEC 030

PARTIES: 

M R HAMILL & P HAMILL
Appellants
v
BRISBANE CITY COUNCIL
Respondent
And
PRETIREMENT RESORTS PTY LTD
Co-Respondent

FILE NO/S: 

1444 of 2003

DIVISION: 

Planning & Environment

PROCEEDING: 

Application

ORIGINATING 
COURT: 

Planning & Environment Court of Queensland, Brisbane

DELIVERED ON: 

9 July 2004

DELIVERED AT: 

Brisbane

HEARING DATE: 

30 June 2004

JUDGE: 

Alan Wilson SC DCJ

ORDER: 

1.	Declare that the Court is satisfied that there has been compliance with the provisions of Chapter 3, Part 4 of the Integrated Planning Act 1997, relating to the giving of public notice of the application.
2.	Order that the appellants’ Notice of Appeal be struck out.
3.	Further order that the appellants pay the co- respondent’s costs of and incidental to the appeal (including this application) assessed on the standard basis.

CATHWORDS: 

PLANNING LAW – PROCEDURE – STRIKING OUT
APPEAL – application by co-respondent to strike out appeal
– whether appeal rights under Integrated Planning Act 1997
s 4.1.28 have accrued to the appellants – whether the Court
should exercise its discretion to excuse non-compliance by
the appellants with s 4.1.5A – Rules of Planning and
Environment Court – Uniform Civil Procedure Rules

COSTS – COSTS IN PLANNING & ENVIRONMENT COURT – whether appellants should be ordered to pay co- respondents costs under s 4.1.23(2) – whether proceedings instituted merely to delay or obstruct – whether proceedings frivolous and vexatious – whether costs order ought to be made against appellants where respondent Council erroneously informed appellants they had a right to appeal against decision approving co-respondent’s development application

Integrated Planning Act 1997
Cases considered:

City & Country Supermarkets Pty Ltd v Redcliffe City Council
(1983) QPLR 360

Lali Investmetns Pty Ltd v Burnett Shire Council [2004] QPELR
25

Marcelawn Pty Ltd v Townsville City Council [1998] QPELR 35

Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271

RD Williams Tractors Pty Ltd v State of Queensland [1998]
QPELR 26

Tait v Townsville City Council & Ors [2001] QPELR 268.

COUNSEL: 

Mr M A Williamson of Counsel for the applicant (co-
respondent)
Mr B Job of Counsel for Brisbane City Council (respondent)
Mr P Hamill in person for the respondents (appellants)

SOLICITORS: 

Geoff Klooger & Associates for the applicant (co-respondent) Brisbane City Legal Practice for the respondent Brisbane City Council

Mr P Hamill in person for the respondents (appellants)

[1]     This is an application brought within a proceeding[1] by the co-respondent Pretirement Resorts Pty Ltd (Pretirement) for an order that the appellants’ appeal be dismissed or struck out, with costs. The respondent Council supports the application, but does not seek costs from the appellants. The matters for determination are firstly whether the appellants have the right to appeal; and, if not, whether or not the discretion arising under s 4.1.5A of the Integrated Planning Act 1997 (IPA) should nevertheless be exercised in their favour…