Noosa Shire Council v. Johns & Ors - [2007] QPEC 68

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Noosa Shire Council v. Johns & Ors [2007] QPEC 068
PARTIES:	COUNCIL OF THE SHIRE OF NOOSA (Applicant) AND CYRIL GEORGE JOHNS (First Respondent) AND NOOSA EARTHMOVERS PTY LTD (Second Respondent) ACN 010 372 031 AND SHERRIN INVESTMENTS PTY LTD (Third Respondent) ACN 053 280 970
FILE NO:	Maroochydore D21 of 2007
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING COURT:	Planning and Environment Court of Queensland, Maroochydore
DELIVERED ON:	3 August 2007
DELIVERED AT:	Maroochydore
HEARING DATE:	16, 17 July 2007
JUDGE:	Judge J.M. Robertson
ORDER:	Application Dismissed Applicant to pay the costs of the respondents of and incidental to the proceedings incurred after 4pm on 10 July 2007 on the standard basis.
CATCHWORDS:	Application seeking declarations; where site used for extractive industry was a pre-existing lawful use pursuant to s1.4.1 of the IPA; whether respondents can be held responsible for alleged intensification of use by a non-party; whether orders sought lack utility. Costs; s4.1.23(2)(b) and (c), meaning of word “frivolous”. Legislation: Environmental Protection Act 1994 (Qld) Local Government (Planning and Environment) Act1990 (Qld) (Repealed) Integrated Planning Act 1997 (Qld) Integrated Planning Regulation 1998 (Qld) Cases Considered: Briginshaw v Briginshaw (1938) 60 CLR 366 Caloundra City Council v Taper Pty Ltd [2003] Q.P.L.E.R. 558 Jimbalong Proprietary Limited v Beaudesert Shire Council and others (2005) QPELR 621 Maroochy Shire Council v Barnes [2001] Q.P.L.E.R 475 Mudie v. Gainriver Pty Ltd & Ors [2001] QCA 382 Oceanic Sunline Special Shipping Company Inc v Faye (1988) 165 CLR 197 Shaw v Brisbane City Council (2000) QPELR 57 Tynam v. Meharg (1998) 101 LGERA 255 Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335 Wilkie v Blacktown City Council (2002) 121 L.E.G.R.A. 444 Wilson v The Council of Shire of Laidley (1994) QPLR 65
COUNSEL:	Mr W.G. Everson for the applicant Mr C.G. Johns self represented first respondent Mr S.P. Fynes-Clinton for the second and third respondents
SOLICITORS:	Wakefield Sykes for the applicant McCullough Robertson for the second and third respondents

INTRODUCTION

By an originating application filed 7 February 2007, the Council of the Shire of Noosa (Council) seeks a number of declarations relating to the use of lands near Lake Cooroibah. The lands are described as Lot 306 on LP MCH 1227 County of March, Parish of Noosa (Lot 306) and Lot 177 on CP M3798 County of March, Parish of Noosa (Lot 177) and have, until recent times, been part of a number of blocks in the area owned by various members of the Johns family. The first respondent Mr Cyril Johns still owns Lot 177. A number of the Johns brothers owned Lot 306 until 22 December 2006 when it was acquired by the third respondent (Sherrin Investments). Mr Cyril Johns appeared on the first day to represent himself however it was agreed by Counsel for the other parties that it was not necessary for him to take an active part in the proceedings. He was also of this view so at an…

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.

Continue reading Noosa Shire Council v. Johns & Ors

Details

AGLC: Noosa Shire Council v Johns [2007] QPEC 68
Case: [2007] QPEC 68
Decision Date: 3 August 2007

CaseChat Overview and Summary

Noosa Shire Council initiated proceedings against Johns and others, seeking declarations regarding the use of a site for extractive industry within its jurisdiction. The dispute centred on whether the site was used for a pre-existing lawful use under section 1.4.1 of the Integrated Planning Act 1997 and whether the respondents could be held responsible for the alleged intensification of use by a non-party. Additionally, the applicant sought to determine whether the orders requested were futile and the meaning of the term "frivolous" as used in section 4.1.23(2)(b) and (c) of the Integrated Planning Regulation 1998. The case was heard in the Queensland Land Court.

The primary legal issues revolved around the interpretation of "pre-existing lawful use" as per section 1.4.1 of the IPA, and whether the respondents could be held accountable for actions taken by a non-party that intensified the use of the site. Furthermore, the court had to decide if the orders sought by the applicant were lacking in utility and the appropriate interpretation of the term "frivolous" within the context of the Integrated Planning Regulation 1998. The case drew on precedents such as Briginshaw v Briginshaw and Caloundra City Council v Taper Pty Ltd, among others, to guide its analysis.

The court held that the site in question had indeed been used for a pre-existing lawful use, as defined by the IPA. However, the court found that the respondents could not be held liable for the actions of a non-party that intensified the use of the site. Regarding the futility of the orders, the court determined that they lacked utility as they did not address the primary issue at hand. The court also interpreted the term "frivolous" in the context of the regulation, concluding that the application did not meet the threshold for such an order. Consequently, the application was dismissed, and the applicant was ordered to pay the costs of the respondents incurred after a specific date on the standard basis.

The court's decision resulted in the dismissal of the application and an order for the applicant to cover the costs of the respondents, which were incurred after a specified time on the standard basis. This ruling underscored the importance of demonstrating a pre-existing lawful use and the limitations of holding parties responsible for the actions of non-parties in environmental planning matters.

Orders

Orders of the court

Application Dismissed

Applicant to pay the costs of the respondents of and incidental to the proceedings incurred after 4pm on 10 July 2007 on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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