Makucha v Albert Shire Council

IN THE COURT OF APPEAL	[1992] QCA 094
SUPREME COURT OF QUEENSLAND	No. 101 of 1991
Before the Court of Appeal
Mr Justice Pincus Mr Justice Davies Mr Justice Williams
BETWEEN:

PAUL MAKUCHA

Appellant

AND:

THE COUNCIL OF THE SHIRE OF ALBERT

First Respondent

AND:

AOSCO PTY LTD

Second Respondent

REASONS FOR JUDGMENT - PINCUS J.A. and DAVIES J.A.

Delivered the 13th day of May 1992

The appellant was the unsuccessful applicant in the Planning
and Environment Court for declarations pursuant to section
2.24 of the Local Government (Planning and Environment) Act
1990-1991. The declarations sought were in the following
terms:

1.    that rezoning applications Nos. 2445 and 2446 lodged by Aosco Pty Ltd with the Shire for the Council of Albert were not duly made.

2.    that such applications are incapable of being cured by amendment.

Both applications for rezoning were lodged with the Albert
Shire Council on 11 September 1991. Both were to rezone
land in that Shire from the Special Facilities/Ski Lake,
Roller Skating & Associated Administration, Club Facilities,
Restaurant & Take Away Food Outlets Zone to the Special
Facilities/Signage and Sightline Zone, and were made
pursuant to Part 4 of the Act which came into force on 15
April 1991.

The learned Planning and Environment Court Judge held that that Court did not have jurisdiction to hear and determine the application for the above declarations. Its jurisdiction is derived from s. 2.24 of the Act which provides in sub-s. (3):-

"The Court has jurisdiction to hear and determine
proceedings for a declaration in respect of -
...

(b) any act, matter or thing to be undertaken in
respect of the planning scheme or the use of
land;
... "

The relevant question was whether the applications for rezoning were acts, matters or things to be undertaken in respect of the planning scheme for the Albert Shire. The learned judge held that they were not because they "are governed by the Act".

The proposed rezoning is an act, matter or thing to be
undertaken in respect of a planning scheme, as well as being
in respect of the use of land. It is true, as the judge
said, that the points taken in the application for
declarations depended on the Act, but the judge's
jurisdiction to grant a declaration did not depend upon the
ground of the attack on the validity of the applications.
In our view, the declarations sought plainly had to do with
the proposed rezonings which were, equally plainly, within
the description in sub-s.(3)(b) quoted above. In our
opinion therefore, the Planning and Environment Court had,
and of course still has, jurisdiction to hear and determine
the application for declarations.
It was common ground before us that the determination of the
application for the declarations involved decisions upon
questions of fact upon which the court below has not
expressed any conclusion. The correct course for us,
therefore, is to remit the matter to the Planning and
Environment Court to determine that application. However,
in…