Harburg Investments P/L v Brisbane City Council

[2000] QCA 398

COURT OF APPEAL

de JERSEY CJ
PINCUS JA
THOMAS JA

Appeal No 7063 of 2000

HARBURG INVESTMENTS PTY LTD
(ACN 010 279 884) Applicant

and

BRISBANE CITY COUNCIL First Respondent

and

ECOVALE PTY LTD
(ACN 003 855 061) Second Respondent

BRISBANE

..DATE 28/09/2000

JUDGMENT

THE CHIEF JUSTICE: The applicant sought leave to appeal under Section 4.1.56(2) of the Integrated Planning Act and contends that there are two errors of law in the judgment of the Planning and Environment Court given on 28 July this year.

The first involved a contention that the learned Judge in determining "need" took account of irrelevant, or what were termed subjective matters. The content of the criterion of need under Section 4.4(3) of the Local Government (Planning and Environment) Act is expansive and not fully prescribed. I note especially paragraph (l) which brings in "such other matters having regard to the nature of the application as are relevant."

In light of the authorities mentioned by the Judge in paragraph 24 of his judgment, the factual considerations covered in paragraph 26 were arguably relevant. His Honour's reliance on those matters therefore should not be seen as having involved any arguable error of law.

The applicant relied secondly on the Judge's conclusion that the land fell within the Aspley business centre. That related to a designation on the strategic plan. The Judge rightly characterised his decision on that as one of fact - see paragraph 36 of his judgment. He held that it did fall within that centre. That is a purely factual exercise.

The judgment discloses neither of the suggested errors of law and the application should be dismissed.

PINCUS JA: I agree.

THOMAS JA: I agree.

...

THE CHIEF JUSTICE: With costs to be assessed.

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CaseChat Overview and Summary

Harburg Investments P/L initiated proceedings against Brisbane City Council in the Queensland Court of Appeal. The applicant sought leave to appeal against the judgment of the Planning and Environment Court, which had dismissed its application. The primary contention of Harburg Investments P/L was that the lower court judge had made two errors of law in the original judgment. Firstly, the applicant argued that the judge had considered irrelevant subjective matters when determining the "need" criterion under the Local Government (Planning and Environment) Act. Secondly, the applicant contended that the judge had erred in concluding that the land in question fell within the Aspley business centre, as designated in the strategic plan.

The Court of Appeal dismissed the application, finding that the lower court had not committed any errors of law. The Chief Justice, with whom Pincus and Thomas JJ agreed, noted that the criterion of "need" under Section 4.4(3) of the Act was expansive and not fully prescribed. The factual considerations that the lower court judge had taken into account were arguably relevant, and thus did not amount to an arguable error of law. Furthermore, the determination that the land fell within the Aspley business centre was a factual exercise, and the lower court's conclusion on that matter was not shown to be erroneous. The Court of Appeal found that the application should be dismissed, with costs to be assessed.

CaseChat Overview and Summary

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