Landel Pty Ltd v Redland Shire Council

[2000] QCA 4

[LANDEL PTY LTD & Ors v REDLAND SHIRE COUNCIL]

[2000] QCA 4

COURT OF APPEAL

de JERSEY CJ
McMURDO P
THOMAS JA

Appeal No 9253 of 1999

LANDEL PTY LTD

and

LANREX PTY LTD

and

PYNHALL PTY LTD

v.

REDLAND SHIRE COUNCIL

BRISBANE

..DATE 02/02/2000

JUDGMENT

THE CHIEF JUSTICE:  One of the great advantages of having comprehensive written outlines of submissions is to arm the Court with at least a preliminary view on the issues before it assembles.  We have, in this case, been given the benefit of very carefully prepared submissions and we have had the opportunity to consider them.  In addition, the oral argument which has been presented here this morning has been helpful in further illuminating the issues.

There were two major points ventilated in support of the application for leave. The first was whether the learned Judge had power to grant a preliminary approval under section 3.1.5 subsection 1 of the Integrated Planning Act 1997. It was submitted that section 6.1.28 and following provisions in division 8 of the Act excluded such a power because of the extent of detail into which they descended as to the treatment of applications such as this one. However, the power to grant a preliminary approval was not explicitly excluded by any of those provisions.

The point was not raised below.  It was assumed, I believe probably rightly, that the learned Judge had the power which he exercised.  In any event, I am satisfied in the end that there is not sufficient doubt about the validity of his reasoning to warrant our granting leave to appeal to facilitate further ventilation of the point. 

The second major issue was whether the strategic plan and the development control plan excluded this sort of development on this land.  The Judge held that it did not.  I consider that the language of the documents tends to support the approach the Judge took.  In any event, again, I am not satisfied that there is sufficient doubt about his reasoning to warrant our granting leave.

It is important to note as I have, that the first issue was not raised before the Judge.  At the impact assessment stage, which is yet to come, the question about the scope of the strategic plan and the development control plan will again be relevant so that the council's power to raise that issue has not now been extinguished. 

Taking those circumstances together with my view about the limited arguability of the points of substance, I conclude that leave should not be given.

THE PRESIDENT:  I agree.

THOMAS JA: I agree. I would add that there is no sufficient reason to think that the decision of the learned Judge of the Planning and Environment Court was legally incorrect in any relevant particular. A new point however is raised, namely the submission that the powers of the Court below in relation to transitional planning schemes under the Integrated Planning Act are limited to rezoning approvals or approvals that finally approve a development.

I must say that I find great difficulty in construing sections 6.1.28, 6.1.29 and 6.1.30 as excluding the power conferred by section 3.1.5 upon the Judge to make a decision such as was made here. In other words, I doubt the arguability of this point, perhaps even more strongly than the Chief Justice. Added to that is the fact that the point was not taken below. In all the circumstances I would refuse leave to appeal.

THE CHIEF JUSTICE:  The application is dismissed.

...

THE CHIEF JUSTICE:  The application is refused with costs to be assessed.

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