Millmerran Shire Council v Smith & Anor - [2009] QCA 103

SUPREME COURT OF QUEENSLAND

CITATION:

Millmerran Shire Council v Smith & Anor [2009] QCA 103

PARTIES:

MILLMERRAN SHIRE COUNCIL
(applicant/respondent)
v
CHRISTOPHER LAWRENCE SMITH
(first respondent/applicant)
JOCK McTAVISH
(second respondent/not a party to the application)

FILE NO/S:

Appeal No 11390 of 2008
DC No 163 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

24 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2009

JUDGES:

Keane, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal refused

2. Applicant to pay the respondent's costs of and incidental to the application to be assessed on the indemnity basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant sought leave to appeal against enforcement orders with respect to building permits under Integrated Planning Act 1997 (Qld) – where applicant did not dispute carrying out of building work without necessary building permits – where applicant claimed proceedings for enforcement orders statute barred – where applicant claimed independent state – where applicant claimed deed of grant – where applicant claimed discrimination on religious grounds – whether leave to appeal should be granted

Integrated Planning Act 1997 (Qld), s 4.1.56, s 4.3.20,
s 4.3.22, s 4.3.25, s 4.4.1, s 4.4.2

Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120, applied
Burns v State of Queensland & Croton [2006] QCA 235, applied
Cameron v Peter D Beattie (in his capacity as Premier) & Ors [2001] QCA 392, applied
Millmerran Shire Council v Smith & Anor [2008] QPEC 73, affirmed

COUNSEL:

The applicant appeared on his own behalf
S P Fynes-Clinton for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Bernays Lawyers for the respondent

KEANE JA: On 14 October 2008 Judge Wilson QC of the Planning and Environment Court ("the P & E Court") made orders against the applicant which obliged him to apply to the respondent Council for the necessary development permits for structures on his land at Millmerran which had been built without the necessary permits under the Integrated Planning Act 1997 (Qld) ("the IPA"). These orders were made as enforcement orders under s 4.3.22 of the IPA.

On 9 December 2008 his Honour ordered the applicant to pay the respondent Council's costs of the proceedings after 27 May 2008, assessed on the indemnity basis.

The applicant seeks leave to appeal against these orders pursuant to s 4.1.56 of the IPA.

The applicant represents himself in these proceedings, as he represented himself in the P & E Court. It is not easy to understand the arguments he advances. The learned primary judge helpfully summarised the bases on which the applicant had sought to resist the orders which were made against him on 14 October…

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 Millmerran Shire Council v Smith & Anor 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: [2009] QCA 103
Decision Date: 24 April 2009

CaseChat Overview and Summary

The appeal before the Queensland Court of Appeal was brought by the Millmerran Shire Council against Smith and another respondent. The Council sought leave to appeal enforcement orders regarding building permits under the Integrated Planning Act 1997. The applicant did not dispute the execution of building work without necessary permits but argued that the proceedings for enforcement orders were statute-barred. The applicant also contended that the proceedings constituted an independent state, that a deed of grant was applicable, and that there was discrimination on religious grounds.

The primary legal issue before the Court of Appeal was whether leave to appeal should be granted. The Court needed to consider the merits of the applicant's arguments, including the statute-barred claim, the existence of an independent state, the relevance of the deed of grant, and the alleged religious discrimination. The Court had to evaluate whether these grounds provided sufficient basis for an appeal against the enforcement orders.

In assessing the application, the Court of Appeal held that the applicant's arguments did not present a sufficiently strong case to warrant an appeal. The Court found that the arguments regarding statute-barred proceedings, the independent state, the deed of grant, and religious discrimination were not compelling enough to justify granting leave to appeal. Consequently, the Court dismissed the application for leave to appeal and ordered the applicant to pay the respondents' costs of and incidental to the application, to be assessed on an indemnity basis.

The final orders of the Court of Appeal were that the application for leave to appeal was refused and that the applicant was to pay the respondents' costs of and incidental to the application, assessed on the indemnity basis.

Orders

Orders of the court

1. Application for leave to appeal refused

2. Applicant to pay the respondent's costs of and incidental to the application to be assessed on the indemnity basis

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:	Millmerran Shire Council v Smith & Anor [2009] QCA 103
PARTIES:	MILLMERRAN SHIRE COUNCIL (applicant/respondent) v CHRISTOPHER LAWRENCE SMITH (first respondent/applicant) JOCK McTAVISH (second respondent/not a party to the application)
FILE NO/S:	Appeal No 11390 of 2008 DC No 163 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	24 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	20 April 2009
JUDGES:	Keane, Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal refused 2. Applicant to pay the respondent's costs of and incidental to the application to be assessed on the indemnity basis
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant sought leave to appeal against enforcement orders with respect to building permits under Integrated Planning Act 1997 (Qld) – where applicant did not dispute carrying out of building work without necessary building permits – where applicant claimed proceedings for enforcement orders statute barred – where applicant claimed independent state – where applicant claimed deed of grant – where applicant claimed discrimination on religious grounds – whether leave to appeal should be granted Integrated Planning Act 1997 (Qld), s 4.1.56, s 4.3.20, s 4.3.22, s 4.3.25, s 4.4.1, s 4.4.2 Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120, applied Burns v State of Queensland & Croton [2006] QCA 235, applied Cameron v Peter D Beattie (in his capacity as Premier) & Ors [2001] QCA 392, applied Millmerran Shire Council v Smith & Anor [2008] QPEC 73, affirmed
COUNSEL:	The applicant appeared on his own behalf S P Fynes-Clinton for the respondent
SOLICITORS:	The applicant appeared on his own behalf Bernays Lawyers for the respondent