Intrafield Pty Ltd v Redland Shire Council

[2000] QCA 330

[2000] QCA 330
COURT OF APPEAL

PINCUS JA
THOMAS JA
AMBROSE J

Appeal No 5412 of 2000

INTRAFIELD PTY LTD                    Applicant (Appellant)

and

REDLAND SHIRE COUNCIL               Respondent (Respondent)

BRISBANE

..DATE 14/08/2000

JUDGMENT

THOMAS JA: This is an application for leave to appeal under section 4.1.57 of the Integrated Planning Act. Such an appeal lies only in respect of errors of law or want of jurisdiction.

In this particular matter the applicant applied for a material change of use to facilitate the development of land for a service station and associated convenience shop together with a re-configuration.  The Council had refused the application on six grounds.  The learned Judge on appeal by the applicant dealt with all six issues finding all but one of the council's points to be without merit or at least not to be a basis for refusal.  However, on one point, need, his Honour held against the applicant.

In addressing the question of need his Honour made a number of findings of fact suggesting that the question was finely balanced but overall concluded that need was not shown referring to the applicant's onus on this issue. The present case may therefore be clearly contrasted with a case like Arksmead (2000) 107 LGERA 60 at 65 where the relevant finding was of a clear and positive absence of need.

Nothing on the face of the judgment expressly demonstrates any balancing exercise by his Honour in relation to matters that favour the applicant compared with the weight of the point upon which it did not succeed.  It is certainly not the law that a finding of absence of need must always be conclusive against an applicant.  As there is nothing on the face of the reasons for judgment which expose any particular balancing exercise and as the point upon which the applicant failed was not on its face heavily balanced against the applicant it may be arguable that the necessary balancing exercise was not performed in which case it would be arguable that an error of law occurred.

This therefore seems to be a case in which a closer examination of the matter is warranted.  I would grant leave to appeal.

PINCUS JA:  The effect of the learned primary Judge's reasons is, in my view, to emphasize protection of the business of existing traders in the area and to treat that, on the face of it, as a dominant consideration.  The case possibly may involve a question of the extent of the Planning and Environment Court's function in protecting existing traders from new competition.  Apart from that, I have nothing to add to the reasons of Justice Thomas with which I agree.

AMBROSE J:  I agree.  On the face of the reasons his Honour said that putting aside the question of need the proposal was such that it ought be approved.  He then stated unequivocally:

"However, the failure of the appellant to demonstrate need for the development means that the appeal must be dismissed."

On the face of the reasons in my view there is nothing to indicate that balancing was attempted and as it reads the judgment holds expressly that the failure to demonstrate need inevitably required the dismissal of the appeal.  In my view, that is not the law and unless it can be argued that there was in fact a balancing exercise done it seems to me that it is arguable that there is an appeal point.  This is merely an application for leave to appeal.  I also would grant the application.

PINCUS JA:  Mr Hughes, we propose to grant leave as you have gathered.  The only question is costs and the suggestion is that we might make the costs of this application your costs in the appeal so that you'll get them if you win the appeal but Mr Hinson's side won't get them whatever the outcome.  Do you wish to say anything about that?

MR HUGHES:  That's a satisfactory result.

PINCUS JA:  Do you wish to say anything about that?

MR HINSON:  Your Honour, in my submission they should be made both parties' costs in the appeal by the outcome of the appeal.

PINCUS JA:  Yes, I see.

MR HINSON:  Because if the appeal ultimately is dismissed although it was necessary for the applicant to obtain the leave the costs of this application should follow the ultimate event in my submission.

PINCUS JA:  We think this was a strong case for leave to appeal and we therefore will make the order for costs which I have mentioned.  That is, the orders will be leave to appeal granted, the costs of the application for leave to appeal will be the appellant's costs in the appeal.

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