McBain v Clifton Shire Council - [1995] QCA 513

IN THE COURT OF APPEAL	[1995] QCA 513
SUPREME COURT OF QUEENSLAND	Appeal No. 131 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Mackenzie J.

[McBain & ors. v. Clifton Shire Council & anor.]

BETWEEN:

IAN FERGUSON MCBAIN, PATRICIA CHARLOTTE MCBAIN,
BRIAN ROBERT RAMSAY, JOAN MARIE RAMSAY,
NICHOLAS PLAYFORD ADAMSON, RONELLE LEE ADAMSON,
LLOYD LINDENBERG, COLIN HANSEN, MICHAEL A. MEARA,
DIETER SEIFERT, CHRISTA SEIFERT, EDDY PETERS,
YACKA PASTORAL COMPANY PTY LTD (ACN 010 006 005)

(Appellants) Appellants

AND:

CLIFTON SHIRE COUNCIL

(Respondent) First Respondent

AND:

ETHEL MAY JOPPICH, THE ESTATE OF ERNEST WILLIAM
JOPPICH, AND GRAHAM JOPPICH AND ETHEL MAY JOPPICH
AS LEGAL PERSONAL REPRESENTATIVES OF THE ESTATE
OF ERNEST WILLIAM JOPPICH

(Respondents by Election) Second Respondents

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17/11/1995

This is an appeal from an order made in the Planning and Environment Court on 22 June 1995 dismissing an application by the appellants for a declaration that a decision of the respondent Council

is void.

In accordance with sub-s. 4.12 of the Local Government (Planning and Environment) Act 1990, the

respondents (other than the Council) applied to the Council for its consent or approval to the use of their

property, including the erection of buildings and other structures, as a piggery. The proposal was

effectively delineated by an Environmental Impact Statement (see s. 8.2). Public notice of the proposal

was given, and the appellants objected (see s. 4.12). After consideration of the application and the

objections (s. 4.13), the Council approved the application subject to conditions (sub-ss. 4.13(5) and

(5A), especially sub-s. 4.13(5)(b)). The appellants appealed to the Planning and Environment Court,

and, in that proceeding, applied for a preliminary determination that the Council’s approval is void.

The appellants’ ground of appeal to this Court from the Planning and Environment Court’s dismissal of

their application is that the Council’s “purported approval lacked finality because, under condition 4(2),

the decision whether the piggery would be allowed to have a capacity greater than 20,000 pigs was

deferred for future determination” by the Council. That assertion was expanded in the appellants’

written submissions to include a contention that the decision referred to was delegated and deferred for

future determination by another body, a “Monitoring Committee”, which is referred to in the conditions

to the approval. Further, the primary claim that the Council’s decision is void was expanded to include

an alternative claim that the approval only validly approves a piggery of 20,000 pigs.

While the Council’s decision, as communicated to the other respondents, states only that it “approved

the application, subject to the attached conditions”, the heading to its letter refers to an “8,000 Sow

Equivalent Intensive Piggery Application”, the terminology used in the Environmental Impact Statement which supported the application. The conclusion to the Environmental Impact Statement expressed the

opinion that such a piggery - for present purposes more conveniently referred to as a piggery of 80,000

pigs - “can be sustainably operated…

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: [1995] QCA 513
Decision Date: 17/11/1995

CaseChat Overview and Summary

The case of McBain v Clifton Shire Council involved a dispute between the Clifton Shire Council and Mr. McBain regarding the approval of a piggery on Mr. McBain’s property. The Clifton Shire Council had granted approval for the use of the property as a piggery, but this approval was subject to certain conditions. The primary issue before the court was whether the Council's approval was valid, particularly in light of the conditions attached to it, and whether the approval only applied to a piggery of 20,000 pigs.

The court had to determine whether the conditions imposed by the Council rendered the approval void or if the approval was still valid despite the conditions. Additionally, the court needed to decide whether the approval lacked finality due to the conditions attached, and if it was valid, whether it only approved a piggery of 20,000 pigs as claimed by the Council. The central legal issues revolved around the interpretation of the planning and environmental laws applicable to the Council’s decision-making process and the extent to which conditions could affect the validity of the approval.

The court considered the statutory framework governing the Clifton Shire Council's approval process and the legal principles concerning conditional approvals. It held that the conditions imposed by the Council did not render the approval void but rather provided specific parameters within which the piggery could operate. The court found that the approval was not invalidated by the conditions and was indeed final. Furthermore, the court determined that the approval was not limited to a piggery of 20,000 pigs, but rather allowed for a broader range of operations as long as they adhered to the conditions set forth in the approval. Consequently, the Council’s decision was upheld as valid and enforceable.

The final orders of the court were that the Clifton Shire Council's approval of the piggery was valid, the conditions imposed were lawful, and the approval was not limited to a piggery of 20,000 pigs. The court dismissed Mr. McBain’s claims and affirmed the Council’s decision.

Orders