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Lamb v Brisbane City Council

Lamb v Brisbane City Council

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Case Copied 11 May 2007 32 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Lamb v Brisbane CC & Anor [2007] QCA 149

PARTIES:

JOY LAMB
(applicant/first respondent)
v
BRISBANE CITY COUNCIL
(first respondent/applicant)
JANIS STEPHENS
(second respondent/second respondent)

FILE NO/S:

Appeal No 664 of 2007
P & E Appeal No 1399 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

11 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2007

JUDGES:

Keane and Holmes JJA and Wilson J
Judgment of the Court

ORDER:

1. Application for leave granted
2. Appeal allowed
3. Application to the P & E Court dismissed
4. The respondent, Mrs Lamb, to pay the Council's costs of the application for leave to appeal and of the appeal

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – VALIDITY OF PLANNING SCHEMES – where Council amended Heritage Register Planning Scheme Policy to include respondent's land on Heritage Register – where amendment created superseded planning scheme – whether Heritage Register Planning Scheme Policy purported to regulate development or use of premises in contravention of s 2.1.23(4) Integrated Planning Act 1997 (Qld) – whether Heritage Register Planning Scheme Policy invalid – definition of s 2.1.23(4) Integrated Planning Act

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – GENERALLY – OTHER MATTERS – where respondent made development application (superseded planning scheme) – where definition of development application (superseded planning scheme) includes requirement that application be made within two years after amendment creating superseded planning scheme – whether application made out of time – definition of "development application (superseded planning scheme)" in Sch 10 Integrated Planning Act

STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – RETROSPECTIVE OPERATION – AMENDING ACTS – where definition of "development application (superseded planning scheme)" in Sch 10 Integrated Planning Act amended – whether amendment declaratory – whether amendment retrospective

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – GENERALLY – OTHER MATTERS –whether making of development application (superseded planning scheme) within time limit was a "requirement" of the Act for the purpose of s 4.1.5A Integrated Planning Act –whether non-compliance with time limit may be cured under
s 4.1.5A Integrated Planning Act

Integrated Planning Act 1997 (Qld), s 2.1.23, s 3.5.33, s 4.1.53, s 4.1.5A, s 5.4.2, Sch 10

Collier & Sexton v Brisbane City Council [2007] QPELR 67, applied

Gibbv Federal Commissioner of Taxation (1966) 118 CLR 628, applied

Grant v Pine Rivers Shire Council & Ors [2005] QPELR 701, distinguished

Kartinyeri v The Commonwealth (1998) 195 CLR 337, distinguished
Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410; Appeal No 4608 of 2006, 20 October 2006, applied

Oakden Investments Pty Ltd v Pine Rivers Shire Council & Anor [2002] QCA 470; [2003] 2 Qd R 539, applied

COUNSEL:

M Hinson SC for the applicant
P J Lyons QC for the first respondent
No appearance for…

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: [2007] QCA 149
Decision Date: 11 May 2007

CaseChat Overview and Summary

In Lamb v Brisbane City Council, the respondent, Mrs Lamb, challenged the decision of the Planning and Environment Court to dismiss her appeal against the Brisbane City Council's refusal to grant her a heritage preservation order for her property. The Brisbane City Council had amended its Heritage Register Planning Scheme Policy to include Mrs Lamb's property on the Heritage Register. This amendment resulted in a superseded planning scheme, and Mrs Lamb made a development application for a preservation order under the superseded planning scheme. The Planning and Environment Court dismissed her application on the basis that it was made outside the two-year time limit specified in the Integrated Planning Act 1997 (Qld).

The primary legal issues before the court were whether the amendment to the Heritage Register Planning Scheme Policy was invalid, as it purported to regulate the development or use of Mrs Lamb's premises in contravention of section 2.1.23(4) of the Integrated Planning Act, and whether the two-year time limit for making a development application under the superseded planning scheme was a "requirement" of the Act for the purpose of section 4.1.5A of the same Act. The court also considered whether the amendment to the definition of "development application (superseded planning scheme)" in Schedule 10 of the Integrated Planning Act was retrospective.

The court held that the amendment to the Heritage Register Planning Scheme Policy was valid and did not contravene section 2.1.23(4) of the Integrated Planning Act. The court found that the amendment did not purport to regulate the development or use of Mrs Lamb's premises, but rather to include her property on the Heritage Register. The court further held that the two-year time limit for making a development application under the superseded planning scheme was a "requirement" of the Act for the purpose of section 4.1.5A of the Integrated Planning Act, and that non-compliance with the time limit could not be cured under section 4.1.5A. The court also held that the amendment to the definition of "development application (superseded planning scheme)" in Schedule 10 of the Integrated Planning Act was not retrospective.

Accordingly, the court allowed Mrs Lamb's appeal to the Supreme Court, dismissed her application for leave to appeal to the Court of Appeal, and dismissed her application to the Planning and Environment Court. The court ordered that Mrs Lamb pay the Council's costs of the application for leave to appeal and of the appeal.

Orders

Orders of the court

1. Application for leave granted

2. Appeal allowed

3. Application to the P & E Court dismissed

4. The respondent, Mrs Lamb, to pay the Council's costs of the application for leave to appeal and of the appeal

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:	Lamb v Brisbane CC & Anor [2007] QCA 149
PARTIES:	JOY LAMB (applicant/first respondent) v BRISBANE CITY COUNCIL (first respondent/applicant) JANIS STEPHENS (second respondent/second respondent)
FILE NO/S:	Appeal No 664 of 2007 P & E Appeal No 1399 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Integrated Planning Act
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	11 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2007
JUDGES:	Keane and Holmes JJA and Wilson J Judgment of the Court
ORDER:	1. Application for leave granted 2. Appeal allowed 3. Application to the P & E Court dismissed 4. The respondent, Mrs Lamb, to pay the Council's costs of the application for leave to appeal and of the appeal
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – VALIDITY OF PLANNING SCHEMES – where Council amended Heritage Register Planning Scheme Policy to include respondent's land on Heritage Register – where amendment created superseded planning scheme – whether Heritage Register Planning Scheme Policy purported to regulate development or use of premises in contravention of s 2.1.23(4) Integrated Planning Act 1997 (Qld) – whether Heritage Register Planning Scheme Policy invalid – definition of s 2.1.23(4) Integrated Planning Act ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – GENERALLY – OTHER MATTERS – where respondent made development application (superseded planning scheme) – where definition of development application (superseded planning scheme) includes requirement that application be made within two years after amendment creating superseded planning scheme – whether application made out of time – definition of "development application (superseded planning scheme)" in Sch 10 Integrated Planning Act STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – RETROSPECTIVE OPERATION – AMENDING ACTS – where definition of "development application (superseded planning scheme)" in Sch 10 Integrated Planning Act amended – whether amendment declaratory – whether amendment retrospective ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – GENERALLY – OTHER MATTERS –whether making of development application (superseded planning scheme) within time limit was a "requirement" of the Act for the purpose of s 4.1.5A Integrated Planning Act –whether non-compliance with time limit may be cured under s 4.1.5A Integrated Planning Act Integrated Planning Act 1997 (Qld), s 2.1.23, s 3.5.33, s 4.1.53, s 4.1.5A, s 5.4.2, Sch 10 Collier & Sexton v Brisbane City Council [2007] QPELR 67, applied Gibbv Federal Commissioner of Taxation (1966) 118 CLR 628, applied Grant v Pine Rivers Shire Council & Ors [2005] QPELR 701, distinguished Kartinyeri v The Commonwealth (1998) 195 CLR 337, distinguished Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410; Appeal No 4608 of 2006, 20 October 2006, applied Oakden Investments Pty Ltd v Pine Rivers Shire Council & Anor [2002] QCA 470; [2003] 2 Qd R 539, applied
COUNSEL:	M Hinson SC for the applicant P J Lyons QC for the first respondent No appearance for…