Ramsgrove P/L v Beaudesert SC - [2005] QCA 434

SUPREME COURT OF QUEENSLAND

CITATION:

Ramsgrove P/L v Beaudesert SC & Ors [2005] QCA 434

PARTIES:

RAMSGROVE PTY LTD ACN 065 386 745
(appellant/applicant/appellant)
v
BEAUDESERT SHIRE COUNCIL
(respondent/first respondent)
LAWRENCE HENRY JOHN KLINGE and
PENNY MARIE KLINGE
(first co-respondent/second respondent)
LACHLAN REIT LIMITED ACN 081 102 534
(second co-respondent/third respondent)
THE STATE OF QUEENSLAND
(third co-respondent/fourth respondent)

FILE NO/S:

Appeal No 8948 of 2005
P & E Appeal No 2634 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

25 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2005

JUDGES:

McMurdo P, Williams and Keane 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 granted
2. Appeal dismissed
3. Appellant to pay second and third respondents' costs of the application and appeal to be assessed on the standard basis

CATCHWORDS:

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - NOTICE AND ADVERTISING - NOTICE - MANDATORY REQUIREMENTS - where the appellant had sought development approval from the first respondent to use certain land for the purposes of a shopping complex - where the eastern boundary of the relevant land ran along one road - where the western and northern boundaries came together at a corner point next to another road ("the north-western boundary") - where a sign giving notice of the proposed development was placed next to the road running along the eastern boundary but no sign was placed near the road next to the north-western boundary - where it was contended that this amounted to a failure to comply with the requirement to place a notice on each "road frontage" for the land contained in s 11 Integrated Planning Regulation 1998 (Qld) - whether the appellant was only required to place notices where there was some road frontage that could be measured - whether the north-western boundary could be said to be a boundary between the land and a road "adjoining the land" - whether the appellant had complied with the notice requirements contained in s 11 Integrated Planning Regulation 1998 (Qld)

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - POWERS ON APPEAL - OTHER POWERS - where the first respondent had exercised its power as assessment manager under s 3.4.8 Integrated Planning Act 1997 (Qld) to waive the appellant's noncompliance with the requirement to give notice of a proposed development - where the application was taken on appeal to the Planning and Environment Court ("P & E Court") - where the P & E Court refused to exercise its power under s 4.1.5A Integrated Planning Act 1997 (Qld) to excuse the appellant's noncompliance with the notice requirements - whether the decision by an assessment manager to waive noncompliance and proceed with the assessment process creates an issue estopped that binds…

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: [2005] QCA 434
Decision Date: 25 November 2005

CaseChat Overview and Summary

Ramsgrove P/L sought development approval from Beaudesert SC to use certain land for a shopping complex. A notice of the proposed development was placed near the road along the eastern boundary of the land but not near the road next to the north-western boundary. The court considered whether placing a sign at one road frontage was sufficient to comply with the notice requirements under section 11 of the Integrated Planning Regulation 1998 (Qld). The court also examined whether the assessment manager's decision to waive the noncompliance with the notice requirements created an issue estoppel binding the parties or the court on any appeal. The court found that the appellant had not complied with the notice requirements as the north-western boundary could be considered a boundary between the land and a road adjoining the land. The court also held that the assessment manager's decision to waive the noncompliance did not create an issue estoppel binding the parties or the court on any appeal. The appellant's application for leave to appeal was granted, but the appeal was dismissed. The appellant was ordered to pay the second and third respondents' costs of the application and appeal.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal dismissed

3. Appellant to pay second and third respondents' costs of the application and appeal to be assessed on the standard 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:	Ramsgrove P/L v Beaudesert SC & Ors [2005] QCA 434
PARTIES:	RAMSGROVE PTY LTD ACN 065 386 745 (appellant/applicant/appellant) v BEAUDESERT SHIRE COUNCIL (respondent/first respondent) LAWRENCE HENRY JOHN KLINGE and PENNY MARIE KLINGE (first co-respondent/second respondent) LACHLAN REIT LIMITED ACN 081 102 534 (second co-respondent/third respondent) THE STATE OF QUEENSLAND (third co-respondent/fourth respondent)
FILE NO/S:	Appeal No 8948 of 2005 P & E Appeal No 2634 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Integrated Planning Act
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	25 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	9 November 2005
JUDGES:	McMurdo P, Williams and Keane 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 granted 2. Appeal dismissed 3. Appellant to pay second and third respondents' costs of the application and appeal to be assessed on the standard basis
CATCHWORDS:	ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - NOTICE AND ADVERTISING - NOTICE - MANDATORY REQUIREMENTS - where the appellant had sought development approval from the first respondent to use certain land for the purposes of a shopping complex - where the eastern boundary of the relevant land ran along one road - where the western and northern boundaries came together at a corner point next to another road ("the north-western boundary") - where a sign giving notice of the proposed development was placed next to the road running along the eastern boundary but no sign was placed near the road next to the north-western boundary - where it was contended that this amounted to a failure to comply with the requirement to place a notice on each "road frontage" for the land contained in s 11 Integrated Planning Regulation 1998 (Qld) - whether the appellant was only required to place notices where there was some road frontage that could be measured - whether the north-western boundary could be said to be a boundary between the land and a road "adjoining the land" - whether the appellant had complied with the notice requirements contained in s 11 Integrated Planning Regulation 1998 (Qld) ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - POWERS ON APPEAL - OTHER POWERS - where the first respondent had exercised its power as assessment manager under s 3.4.8 Integrated Planning Act 1997 (Qld) to waive the appellant's noncompliance with the requirement to give notice of a proposed development - where the application was taken on appeal to the Planning and Environment Court ("P & E Court") - where the P & E Court refused to exercise its power under s 4.1.5A Integrated Planning Act 1997 (Qld) to excuse the appellant's noncompliance with the notice requirements - whether the decision by an assessment manager to waive noncompliance and proceed with the assessment process creates an issue estopped that binds…