Loader v Moreton Bay Regional Council - [2013] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

Loader v Moreton Bay Regional Council [2013] QCA 269

PARTIES:

HEATHER LORRAINE LOADER
(applicant)
v
MORETON BAY REGIONAL COUNCIL
(respondent)

FILE NO/S:

Appeal No 1099 of 2013
P & E Appeal No 237 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Sustainable Planning Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

20 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2013

JUDGES:

Muir and Fraser JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to appeal is granted and the appeal is allowed, with costs.1.

The orders made in the Planning and Environment Court are set aside.2.

Instead of those orders, the appeal to that court is allowed and the Enforcement Notice issued by the respondent to the appellant under the Integrated Planning Act 1997 is set aside.3.

The parties have leave to make submissions in accordance with the Practice Direction about the appropriate orders, if any, concerning costs of the appeal to the Planning and Environment Court.4.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – NOTICES AND ORDERS – where the applicant had carried out a boat building and repair business on two lots adjacent to a creek since April 2002 – where the business had been conducted in the same manner for many decades – where the first lot (‘Lot 20’) was a freehold lot owned by the applicant and the second lot (‘Lot 1’) was unallocated Crown land containing a slipway and jetty – where, after the commencement of the Environmental Protection Act 1994 (Qld) (‘the Act’), the owners of the business at the time applied for an environmental authority – where the real property description on the environmental authority referred only to Lot 20 – where a permit to occupy Lot 1 was first granted in 1998 – where, upon acquiring the business, the applicant applied for a transfer of the environmental authority – where the application for the transfer indicated that the business was carried out over both lots – where the environmental authority issued to the applicant in 2002 was issued over both lots and renewed in succeeding years – where, in 2007, the respondent wrote to the applicant asserting that a review revealed the authority had erroneously been issued over Lot 1, and issued a new authority over Lot 20 only – where the respondent issued the applicant with an Enforcement Notice in 2008 alleging that the applicant had carried out assessable development without authorisation, contrary to s 4.3.1 of the Integrated Planning Act 1997 (Qld) – where the respondent submitted that the amendment to the 2007 authority was made validly pursuant to s 73H(1) of the Act – where the applicant contended that the 2002 authority had the status of a development approval under s 619 of the Act – whether the activity on Lot 1 constituted assessable development –…

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.

Keep reading for free

Create a free CaseChat account to read Loader v Moreton Bay Regional Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QCA 269
Decision Date: 20 September 2013

CaseChat Overview and Summary

In the case of Loader v Moreton Bay Regional Council, the appellant operated a boat building and repair business on two adjacent lots, one a freehold lot and the other unallocated Crown land. The appellant applied for a transfer of an environmental authority which was initially granted in 2002 over both lots, but later amended to exclude the Crown land. The Council issued an Enforcement Notice alleging that the appellant had carried out assessable development without authorisation. The appellant appealed against the orders of the Planning and Environment Court, which dismissed the appeal and found that the Council’s amendment to the environmental authority was valid. The appellant argued that the primary judge failed to provide adequate reasons for dismissing the appeal.

The legal issues in this case were whether the activity on the Crown land constituted assessable development and whether the primary judge provided adequate reasons for dismissing the appellant's argument. The appellant contended that the 2002 authority had the status of a development approval and that the primary judge failed to explain why the uncontroversial evidence supporting this argument was not relevant. The Council submitted that the amendment to the 2007 authority was made validly and that the primary judge’s reasons were adequate.

The Court of Appeal held that the primary judge’s reasons did not adequately address the appellant’s argument that the 2002 authority had the status of a development approval. The primary judge made only general references to applications and authorities and did not provide an explanation as to why the uncontroversial evidence supporting this argument was not relevant. The Court held that this was an error of law and that the primary judge failed to provide adequate reasons. The Court allowed the appeal, set aside the orders made in the Planning and Environment Court and set aside the Enforcement Notice issued by the Council. The parties have leave to make submissions about the appropriate orders, if any, concerning costs of the appeal to the Planning and Environment Court.

Orders

Orders of the court

The application for leave to appeal is granted and the appeal is allowed, with costs.1.

The orders made in the Planning and Environment Court are set aside.2.

Instead of those orders, the appeal to that court is allowed and the Enforcement Notice issued by the respondent to the appellant under the Integrated Planning Act 1997 is set aside.3.

The parties have leave to make submissions in accordance with the Practice Direction about the appropriate orders, if any, concerning costs of the appeal to the Planning and Environment Court.4.

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:	Loader v Moreton Bay Regional Council [2013] QCA 269
PARTIES:	HEATHER LORRAINE LOADER (applicant) v MORETON BAY REGIONAL COUNCIL (respondent)
FILE NO/S:	Appeal No 1099 of 2013 P & E Appeal No 237 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Sustainable Planning Act
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	20 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	22 May 2013
JUDGES:	Muir and Fraser JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for leave to appeal is granted and the appeal is allowed, with costs.1. The orders made in the Planning and Environment Court are set aside.2. *Instead of those orders, the appeal to that court is allowed and the Enforcement Notice issued by the respondent to the appellant under the Integrated Planning Act* 1997 is set aside.3. The parties have leave to make submissions in accordance with the Practice Direction about the appropriate orders, if any, concerning costs of the appeal to the Planning and Environment Court.**4.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – NOTICES AND ORDERS – where the applicant had carried out a boat building and repair business on two lots adjacent to a creek since April 2002 – where the business had been conducted in the same manner for many decades – where the first lot (‘Lot 20’) was a freehold lot owned by the applicant and the second lot (‘Lot 1’) was unallocated Crown land containing a slipway and jetty – where, after the commencement of the Environmental Protection Act 1994 (Qld) (‘the Act’), the owners of the business at the time applied for an environmental authority – where the real property description on the environmental authority referred only to Lot 20 – where a permit to occupy Lot 1 was first granted in 1998 – where, upon acquiring the business, the applicant applied for a transfer of the environmental authority – where the application for the transfer indicated that the business was carried out over both lots – where the environmental authority issued to the applicant in 2002 was issued over both lots and renewed in succeeding years – where, in 2007, the respondent wrote to the applicant asserting that a review revealed the authority had erroneously been issued over Lot 1, and issued a new authority over Lot 20 only – where the respondent issued the applicant with an Enforcement Notice in 2008 alleging that the applicant had carried out assessable development without authorisation, contrary to s 4.3.1 of the Integrated Planning Act 1997 (Qld) – where the respondent submitted that the amendment to the 2007 authority was made validly pursuant to s 73H(1) of the Act – where the applicant contended that the 2002 authority had the status of a development approval under s 619 of the Act – whether the activity on Lot 1 constituted assessable development –…