Proctor v Brisbane City Council - [1993] QCA 440

IN THE COURT OF APPEAL

[1993] QCA 440

SUPREME COURT OF QUEENSLAND

Appeal No. 124 of 1993.

Brisbane
[Proctor v. Brisbane City Council]

BETWEEN

KEVIN JAMES PROCTOR
Appellant

- and -

BRISBANE CITY COUNCIL

Respondent

- and -

PIKE MIRLS McKNOULTY PTY LTD

First Respondent by

Election

- and -

KOBE BRISBANE TRADE & INVESTMENT
CORPORATION PTY LTD

Second Respondent by

Election

____________________________________________________________

_____

Pincus J.A.
Thomas J.
Mackenzie J.

____________________________________________________________

_____

Judgment delivered 03/11/93

Judgment of the Court
____________________________________________________________

_____

APPEAL DISMISSED WITH COSTS.
____________________________________________________________

_____

CATCHWORDS:	LOCAL GOVERNMENT - PLANNING & ENVIRONMENT - application for rezoning and subdivision of land - appellant required road access as a condition for granting the application - test to be applied under s. 6.1 Local Government (Planning & Environment) Act 1990 in deciding
whether a condition should be imposed when granting such an application.
Counsel:	Mr J E Gallagher Q.C. with him Mr E J Morzone for the appellant. Ms D A Mullins for the respondent Brisbane City Council. Mr D R Gore Q.C. with him Mr S M Ure for the respondents by election.
Solicitors:	Hill & Taylor for the appellant. Legal Services Branch, Brisbane City Council for the Brisbane City Council. King & Co. for the respondents by election.
Hearing Date:	19 October 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 124 of 1993.

Brisbane

Before

Pincus J.A.
Thomas J.
Mackenzie J.

[Proctor v. Brisbane City Council]

BETWEEN

KEVIN JAMES PROCTOR
Appellant

- and -

BRISBANE CITY COUNCIL

Respondent

- and -

PIKE MIRLS McKNOULTY PTY LTD

First Respondent by

Election

- and -

KOBE BRISBANE TRADE & INVESTMENT
CORPORATION PTY LTD

Second Respondent by

Election

JUDGMENT OF THE COURT

Judgment delivered 03/11/93

This is an appeal from the Planning & Environment Court, in which it is argued that that Court ("the P & E Court") erred in law. The argument was in essence that the P & E Court applied a wrong test in determining to uphold a Brisbane City Council decision not to impose a condition favourable to the appellant objector.

The matter before the P & E Court was an appeal against the Council's decision on a combined application relating to land at The Gap. The application was to rezone the land, to subdivide it and for consent to erect on it certain dwellings and other facilities. The issue before the P & E Court was a narrow one, namely whether there should have been a condition of approval that road access be provided, for land owned by the appellant, across the subdivided lot (which will be referred to as Lot 111) to a road running along the western boundary of Lot 111. The appellant wished the subdivision to be so arranged that it would be possible to drive from his land, "Lot 1", which abuts Lot 111 on the east, to the road we have mentioned; that may conveniently be called Settlement Road, although in fact part of the road…

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: [1993] QCA 440
Decision Date: 3/11/1993

CaseChat Overview and Summary

In the case of Proctor v Brisbane City Council, the appellant sought to rezone and subdivide a parcel of land, requiring the respondent council to assess the application under the Local Government (Planning & Environment) Act 1990. The appellant argued that the requirement for road access as a condition of granting the application was unreasonable and unjust. The court was required to determine whether the condition imposed by the council was lawful and reasonable under section 6.1 of the Act.

The central issue before the court was whether the condition imposed by the respondent for the appellant to provide road access was lawful and reasonable. The court considered whether the condition was necessary for the purpose of the Act and whether it was unjust or oppressive to the appellant. The court also had to consider the purpose of the Act and the principles of good planning and development.

The court held that the condition imposed by the council was lawful and reasonable. The court found that the condition was necessary for the purpose of the Act and that it was not unjust or oppressive to the appellant. The court also found that the condition was in accordance with the purpose of the Act and the principles of good planning and development. The court concluded that the condition was reasonable and lawful.

The court dismissed the appeal and affirmed the decision of the respondent. The court held that the condition imposed by the respondent was reasonable and lawful and that the appellant was required to provide road access as a condition of granting the application. The court did not make any orders for costs.

Orders