Ramsgrove Pty Ltd v Beaudesert Shire Council - [2006] QPEC 9

[2006] QPEC 009

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No BD275 of 2005

RAMSGROVE PTY LTD

Appellant

and

BEAUDESERT SHIRE COUNCIL

and

JACARTA PTY LTD

Respondent

Co-Respondent

BRISBANE

..DATE 15/02/2006

ORDER

CATCHWORDS: Directions to advance appeal to hearing vacated - hearing should await determination of an application to the Court of Appeal for leave to appeal (and any consequent
appeal) which, if successful, would necessarily defeat the development application - costs of 5 day "merits" appeal might be wasted - circumstances in which long-standing direction for particulars of submitter appellant's grounds, never complied with, was left standing.

HIS HONOUR: In 275 of 2005, extend until the 1st of March 2006 the time for compliance at paragraph 1 of the order of Judge Wilson SC of the 14th of December 2005. Otherwise vacate the directions contained in that order, and the directions contained in the order of Judge Rackemann of 12th of August 2005.

Liberty to Jacarta Pty Ltd to apply for the setting down of Appeals 247, 248, and 275 of 2005 in the event that Ramsgrove Pty Ltd fails to prosecute with due diligence in the Court of Appeal its proceeding 560 of 2006 in respect of the decision of Judge Griffin SC in 275 of 2005 on the 9th of December 2005. I direct that these proceedings be mentioned in on the 12th of April 2006.

...

HIS HONOUR: I will reserve Jacarta's application for the costs occasioned by Ramsgrove Pty Ltd's non-compliance with the said paragraph 1.

...
HIS HONOUR: In 247 and 248 of 2005, vacate the directions given on the 12th of August 2005.

Do we go back to that one too?

MR HOUSTON: Yes, your Honour, for safety's sake.

HIS HONOUR: And on the 14th of December 2005. I order a mention on the 12th of April 2006.

The Court has made the orders indicated on the basis of an established practice in this Court to await the determination of appeals or applications for leave to appeal in respect of orders of the Court, the outcome of which may impact on the fate of the matter in this Court. On occasion, it has been thought wise to await the determination of quite independent proceedings, such as the decision in Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33; [2005] QPELR 1, as in Barns v Maroochydore Shire Council [2005] QPELR 625.

Ramsgrove in the principal of the appeals of concern today has brought a submitter appeal in respect of Jacata Proprietary Limited's development application for a supermarket in Jimboomba. It has been an applicant for such a development itself, but its own application which was rejected by the Council and the subject of a developer appeal was defeated because of deficiencies in public notification: [2005] QPEC 101. That happened at the time when a set of directions had been given which would have led to the hearing of a merits appeal.

That determination was tested in…

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: [2006] QPEC 9
Decision Date: 15/02/2006

CaseChat Overview and Summary

In Ramsgrove Pty Ltd v Beaudesert Shire Council, the appellant, Ramsgrove Pty Ltd, sought to appeal against the council's decision to reject its development application for a supermarket in Jimboomba. The case involved a dispute over the merits of the appeal and the timing of the hearing, particularly in light of another appeal by Ramsgrove against a different decision of the same council regarding a development application by Jacarta Pty Ltd. The court had to decide whether to proceed with the hearing of Ramsgrove's appeal or to await the outcome of the Court of Appeal proceedings regarding Jacarta's application. Additionally, the court had to consider the costs implications of proceeding with the appeal given the potential for wasted resources if the Court of Appeal found the appeal to be defective.

The legal issues in this case centred around the appropriate timing for hearing Ramsgrove's appeal, considering the pending appeal in the Court of Appeal concerning Jacarta's development application. The court had to weigh the interests of all parties involved, including the council and other submitters, against the potential for unnecessary costs if the appeal were to proceed without resolution of the Court of Appeal matter. Furthermore, the court needed to address the non-compliance of Ramsgrove with previous directions to provide particulars of its grounds of appeal, which had not been adhered to despite multiple orders.

The court decided to vacate the existing directions that would have led to a hearing on the merits of Ramsgrove's appeal and to await the outcome of the Court of Appeal proceedings. This decision was made to avoid the risk of wasting court resources if the Court of Appeal were to find the appeal defective. The court also emphasised the importance of compliance with procedural rules and the need for Ramsgrove to actively prosecute its appeal in the Court of Appeal. The court recognised the potential for significant costs to be incurred if the merits hearing proceeded without resolution of the Court of Appeal matter. Additionally, the court indicated that it would hold Ramsgrove accountable for any costs incurred due to its non-compliance with previous directions. The court's decision ensured that all parties could avoid unnecessary expenditure and that the court could manage its resources effectively.

Orders