Powell v Bowen Shire Council

[2000] QPEC 35

[POWELL v BOWEN SHIRE COUNCIL & Anor]

[2000] QPE 035

PLANNING AND ENVIRONMENT COURT

JUDGE C F WALL QC

P & E Appeal No 163 of 2000

MICHAEL GORDON POWELL  Applicant

and

BOWEN SHIRE COUNCIL  Respondent

and

ROSE BAY DEVELOPMENTS PTY LTD

(ACN 082 755 075)  Co-Respondent

TOWNSVILLE

..DATE 29/05/2000

JUDGMENT

1

HIS HONOUR: This is an application under Rule 667(2)(d) of the Uniform Civil Procedure Rules to set aside a final order or judgment made by Judge Pack in this Court after hearing an appeal by Mr Powell against the decision of the council to approve a development at Rose Bay, Bowen.

Rule 667 has application by virtue of Rule 3(2) of the Planning & Environment Court Rules. For the purposes of Rule 667, “order” is defined in schedule 4 of the Uniform Civil Procedure Rules as including a judgment, decision or determination of a Court, whether final or otherwise.

The order of the Planning & Environment Court made on 18 November 1999, so far as it concerns the present application, was that the appeal be dismissed and that the landscaping plan relating to the development include the curved plantings in the north-eastern corner in accordance with the Mr Chirnside's drawing LSO3.  That drawing, LSO3, forms part of Mr Chirnside's report which was Exhibit 3 before the Planning & Environment Court and is Exhibit 4 before me.

I do not think it necessary, for the purposes of this application, to decide precisely what Rule 667(2)(d) means. It is contended by the applicant, who was the unsuccessful appellant in the appeal before Judge Pack, that the order made on the 18 November 1999 does not reflect the Court's intention at the time it was made.

It is contended that, as well as referring to Mr Chirnside's drawing LSO3, the order, to be consistent with the reasons for judgment, should have also referred to Mr Chirnside's drawing LSO5.

Rule 667, looked at as a whole, is clearly wider in its terms than the old slip rule RSC Order 32, Rule 12. However, Mr Messer makes the point that, with the exception of subrule (2)(d), there is no other part of Rule 667 which is capable of covering the same ground as the old slip rule and there may be substance in that submission. I do not think it necessary for me to determine, on the present application, precisely what is encompassed by Rule 667(2)(d).

I said at the outset, after hearing the submissions of Mr Quirk and before Mr Drew and Mr Messer addressed me, that, in informal discussions with Judge Pack, his Honour indicated to me that he thought he may have made a mistake and thought that he may have intended to include LSO5 as part of his order.  The conversation I had with Judge Pack was relatively non-specific and no particular plans were referred to or before us when we had our discussion.

I think, on balance, that Judge Pack is probably mistaken about being mistaken, because I agree with the submissions of Mr Drew and Mr Messer that his reasons for judgment are explicable by reference only to LSO3 and not necessarily as including LSO5 and I think that, had he had those plans before him, as well as the transcript of the relevant parts of the evidence of Mr Chirnside, he would probably agree now that that was the case.

Referring to the view of Judge Pack on this matter, I do not overlook the submission of Mr Drew that I should ignore in all respects what his Honour said to me.

I agree with the submissions made by Mr Drew and Mr Messer that, when properly analysed, the concern of the plaintiff on this issue was in relation to his view and the potential invasion of his privacy.  I think that is how his Honour's remark at page 126 of the transcript should be interpreted.  His Honour there said, “Mr Powell, can I just say that if this proposal is approved, I can make it approved subject to conditions which address all of these concerns in terms of adequacy of screening”.  His Honour whilst referring to the report of Mr Chirnside in his reasons for judgment, does not specifically or separately refer to the plan LSO5.  The plan does though form part of Mr Chirnside's report.  His reasons for judgment are explicable and perfectly understandable by reference to only LSO3, and perhaps also because it is related to it LSO4, without also intending to refer to LSO5.  The heading in relation to this aspect of his reasons for judgment is “Visual Impact and Views”.

It is superficially attractive to interpret the references in His Honour's reasons for judgment at pages 11 and 12 to the removal and replanting of coconut trees to the proposal in LSO5, but it is in fact the case, that the proposal as contained in LSO3 includes the replanting of palm trees, notwithstanding as Mr Quirk points out, that the emphasis on LSO3, so far as the order of the Court is concerned is on the

north-eastern corner.  The northern side of the development adjoins Mr Powell's house.  The order so far as it requires that the landscaping plan include the curved planting in the north-eastern corner in accordance with LSO3, does involve the transplantation of at least one coconut tree there.  I appreciate that Mr Chirnside in his evidence referred to his plan LSO5 and coconut tree transplanting.  However, I incline to the view that if Judge Pack had intended to include LSO5 in his order, he would like he did with LSO3, have referred to it in his reasons for judgment.  This was an important issue at trial and I would have expected that if LSO5 was intended to be part of the order, then like LSO3, it would have been referred to in the reasons for judgment and consequently also in the order. 

I think the orders which were made, are perfectly consistent with the reasons for judgment when properly analysed.  I do not agree with Mr Quirk when he submitted that one cannot read LSO3 without LSO5 and therefore it must be obvious that LSO5 was accidentally omitted from the order made by Judge Pack.  I think that where necessary, LSO5 can be read with LSO3, but LSO5 is not, nor was it intended in my view, to be part of the order.

For those reasons, even if Rule 667(2)(d) had application, I am unable to conclude that the order does not reflect the Court's intention at the time it was made, and in those circumstances, the application will be dismissed.

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