Kettering Pty Ltd v Noosa Shire Council

HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ

KETTERING PTY LTD  APPELLANT

AND

NOOSA SHIRE COUNCIL   RESPONDENT

Kettering Pty Ltd v Noosa Shire Council

[2004] HCA 33

23 June 2004
B52/2003 and B53/2003

ORDER

Matter No B52/2003

1.Appeal allowed with costs;

2.The order of the Court of Appeal of Queensland dated 8 February 2002 is set aside, and in place thereof the appeal to that Court is dismissed with costs.

Matter No B53/2003

1.Appeal allowed with costs;

2.The order of the Court of Appeal of Queensland dated 28 June 2002 is set aside;

3.Respondent to pay the costs of the appellant of the application to amend made to that Court. 

On appeal from the Supreme Court of Queensland

Representation:

D F Jackson QC with D R Gore QC and R S Litster for the appellant (instructed by Hopgood Ganim Lawyers)

P J Lyons QC with T N Trotter for the respondent (instructed by Wakefield Sykes)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Planning law – Compensation for alleged diminution in value of land – Appellant owned land in Noosa – Town planning scheme amended by a Development Control Plan ("DCP") – DCP constrained development potential of appellant's land thereby diminishing its market value – Appellant sought compensation from respondent pursuant to Local Government (Planning and Environment) Act 1990 (Q) ("the Act"), s 3.5(1) – Compensation not payable where land affected by a planning scheme which had the effect of prohibiting or restricting "use of land or erection or use of building or other structure thereon for a particular purpose" – Whether the Act precluded appellant's claim for compensation.

Courts – Jurisdiction – Trial of one of several separate issues – Issue reserved for later determination – Appeal to Court of Appeal with respect to issue decided – Whether Court of Appeal erred in determining issue reserved for later determination.

Local Government (Planning and Environment) Act 1990 (Q), ss 3.4, 3.5.

1. McHUGH, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ.   These appeals raise questions as to the proper construction of the Local Government (Planning and Environment) Act 1990 (Q)[1] ("the Act"), and instruments made under it giving rise to injurious affection, and, in consequence an owner's entitlement to compensation.

   [1]In force at the time.

   Facts

2. The appellant is the owner of 19.8 hectares of land on Noosa Hill in the Noosa Shire in Queensland.  The land is zoned "Rural Pursuits".  In that zone a dwelling house is a permitted use but land may only be subdivided as of right into lots of no less than 40 hectares.  

3. On 21 September 1991 the "Noosa Hill Development Control Plan" ("the DCP") was gazetted. The Act defines a "planning scheme" as meaning "a scheme for town planning which conforms with section 2.1 and is approved by the Governor in Council". A "planning scheme" is to consist of the various elements listed in s 2.1, including a strategic plan,…