Landel Pty Ltd & Landrex Pty Ltd v Redland Shire Council & Lipoma

[2001] QCA 120

[2001] QCA 120

COURT OF APPEAL

McMURDO P
WILLIAMS JA
BYRNE J

Appeal No 1224 of 2001

LANDEL PTY LTD (ACN 010 889 193)        Appellant/Applicant

and

LANDREX PTY LTD (ACN 010 740 191)       Appellant/Applicant

and

REDLAND SHIRE COUNCIL  First Respondent/
  First Respondent
and

LIPOMA PTY LTD   Second Respondent/
(ACN 002 203 581)  Second Respondent

BRISBANE

..DATE 29/03/2001

JUDGMENT

THE PRESIDENT:  Justice of Appeal Williams will deliver his reasons first.

WILLIAMS JA: This is an application for leave pursuant to section 4.1.57 of the Integrated Planning Act to appeal against the judgment of the Planning and Environment Court of 13 December 2000 dismissing the applicant's application for declaratory and other relief. If leave was granted on the appeal the applicant would primarily seek a declaration "that the subject application for a development approval is an application which requires impact assessment including public notification pursuant to the provisions of the Integrated Planning Act".

What is at the centre of the applicant's case is an approval granted by the Redland Shire Council on 24 July 2000 relating to the development being carried out by the respondent, Lipoma Pty Ltd.  It should be recorded that the approval in question approved the application made by Lipoma Pty Ltd subject to conditions.  Lipoma was not satisfied with those conditions and appealed to the Planning and Environment Court.  Orders were subsequently made in that Court approving Lipoma's development of the subject land subject to conditions.  The material discloses that the development which is being carried out is in accordance with the conditions contained in the order of the Planning and Environment Court.  There has been no appeal from that decision of the Planning and Environment Court.

It seems to be agreed that section 6.1.35A of the Integrated Planning Act applied. Prior to the approval of 24 July 2000 Lipoma was the successor in title to an approval which had been obtained pursuant to the 1990 Act. That approval was subject to certain conditions. Lipoma wished to have some of those conditions changed. In those circumstances, as appears from section 6.1.35A(2), it could "make a development application to achieve the change" or apply under section 4.3(1) of the 1990 Act to have the conditions changed.

What Lipoma did in this case was to make a development application to achieve the change under the provisions of the Integrated Planning Act. Mr Keane, for Lipoma, argues that such application had to be processed under section 6.1.28(3) of the Act, whereas Mr Hughes, for the applicant, contends that the procedure should have been in accordance with section 6.1.28(2). If the latter section governed the application then an impact assessment was required before the approval sought could be given. No such impact assessment was before the Redland Shire Council when it granted its approval of 24 July 2000 nor was there any public notification of the fact that the Council was considering granting the approval in question.

I can see that there is force in each of the competing submissions as to which subsection of section 6.1.28 applied.  I would prefer to leave that issue open for determination at an appropriate time in the future.  It is sufficient for present purposes to say that the application by Lipoma was made in good faith, it went before the Council, it was the subject of a Council approval, and then more significantly it was the subject of consideration and an order by the Planning and Environment Court. 

If the applicant wished to contend that the approval of
24 July 2000 should in the circumstances be cancelled then there may be some force in the argument.  But for reasons which are not entirely clear to me, counsel for the applicant expressly eschewed any intention of seeking such an order; only a declaration in the terms which I have quoted above is sought.  That seems to me in the circumstances to be entirely futile.  If such a declaration was made it could not in my view impact upon the decision of the Planning and Environment Court of 31 January 2001 approving Lipoma's development of the land subject to the conditions stated in that order. 

It therefore seems to me that, though there may well be a question of law thrown up by the application which will need consideration by this Court at some time in the future, any consideration of that question in the circumstances of this case would be futile.  Because of that, I am of the view that this is not an appropriate case in which to grant leave to appeal.  The application should therefore be refused.

THE PRESIDENT:  I agree.  The application were it successful would serve no useful purpose because the declaration sought by the applicants does not challenge the development approval which has been granted.  I agree that the application should be refused.

BYRNE J:  The material circumstances have been mentioned in the reasons of Justice Williams. 

Were the appeal permitted to proceed, and succeeded, it would result in the declaration his Honour mentions.  Such a declaration would be of no practical value.  Indeed, it would be positively mischievous. 

The proposed declaration would not pronounce for the invalidity of the development approval.  It would determine no more than that a step or process antecedent to the approval which ought, on this hypothesis, to have been taken was not taken.  As such, the declaration would not spell the invalidity of the development approval or the conditions attaching to it.  It would merely cast a cloud over the approval.

The applicant has, no doubt advisedly, expressly disclaimed any intention of seeking a declaration of invalidity were the appeal to proceed, perhaps influenced by section 4.1.22 of the Integrated Planning Act 1997. However that may be, the declaration envisaged has no utility and would be refused.

The appeal therefore does not enjoy reasonable prospects of success.  For that reason, the application should be refused.

MR KEANE:  Your Honour, the second respondent seeks an order for its costs.

MR HUGHES:  I have no submissions.
THE PRESIDENT:  Are you seeking your costs also?
MR KEVIN:  Only today's appearance, yes, your Honour.

THE PRESIDENT:  The order is the application is refused with costs to be assessed.

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