Re Ecovale Pty Ltd - [1999] QCA 67

COURT OF APPEAL	[1999] QCA 067
McMURDO P PINCUS JA WHITE J
Appeal No 871 of 1999
IN THE MATTER OF THE INTEGRATED PLANNING ACT 1997
and
IN THE MATTER OF THE APPLICATION OF ECOVALE PTY LTD (ACN 003 855 061)
BRISBANE

..DATE 15/03/99
PINCUS JA: This is an application by Ecovale Pty Ltd for leave to appeal from a judgment
of his Honour Judge Quirk given in the Planning and Environment Court on 18 December
1998. The decision which it is sought to attack was one which refused an application made
under the Integrated Planning Act 1997 for a declaration concerning an application for a
material change of use.
The application for a declaration sought to establish that the application for a material change
of use was defective because it did not relate to such land as should have been included in it.
The application in fact related to pieces of land which were referred to as Lot 2 on
registered plan 213341 and Lot 810 on plan S311868. To the north of those two lots there
is a Lot 1 on registered plan 132085. The applicant, below and here, relied upon the
circumstance that there is in fact access from Lot 1, as I will call it for short, to Lot 810
which is one of the blocks subject to the application, and upon the circumstance that the
application which was made for material change of use indicated that one of the ways to get
onto the subject land was across Lot 1. Putting that more simply, part of the access relied

on, the applicant would say, was access across Lot 1.

The applicant below sought to persuade his Honour Judge Quirk that this circumstance was
fatal to the validity of the application, on the basis of the High Court's decision in Pioneer
Concrete (Queensland) Pty Ltd v. Brisbane City Council and Others (1980) 145 CLR 485.
The contention which was put forward was, as I understood it, that the Pioneer case or
perhaps an extension of the authority of that case establishes the proposition that an
application for material change of use must include within it any piece of land over which
access in fact may be gained to the land sought to be used; and that is so especially if, or
perhaps only if, the application for the material change of use relies upon the access to which
I have just referred.

In answer to this contention made by Mr Hinson SC on behalf of the applicant, Mr Lyons QC, who led Mr Needham for the respondent, argued that the Pioneer case does not establish the proposition for which Mr Hinson contends but merely a lesser proposition, which is that land which is necessary to obtain access to the land proposed to be developed must be included within the application. Mr Lyons argued that there is no authority extending the Pioneer principle in the direction sought to be put…

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 Re Ecovale Pty Ltd

Details

AGLC: Re Ecovale Pty Ltd [1999] QCA 67
Case: [1999] QCA 67
Decision Date: 15/03/1999

CaseChat Overview and Summary

In the matter of Re Ecovale Pty Ltd, Ecovale Pty Ltd sought leave to appeal from a decision of the Planning and Environment Court, which refused their application for a declaration regarding a material change of use under the Integrated Planning Act 1997. The applicant argued that the application for a material change of use was defective as it did not include certain land, specifically Lot 1 on registered plan 132085, which they claimed was necessary for access to the subject land. They relied on the High Court's decision in Pioneer Concrete (Queensland) Pty Ltd v. Brisbane City Council and Others to support their argument.

The legal issues before the court were whether the Pioneer case established that an application for material change of use must include any piece of land over which access may be gained to the land sought to be used, and whether Ecovale had standing to make the application for a declaration. The respondent argued that the Pioneer case only established a lesser proposition, that land necessary to obtain access to the proposed development must be included in the application. Additionally, the respondent contended that Ecovale had no standing to make the application as they had no interest in the outcome of the matter.

The court found that the Pioneer case did not support the proposition put forward by Ecovale, and that there was no authority extending the Pioneer principle in the direction sought by Ecovale. Furthermore, the court held that although section 4.1.21 of the Integrated Planning Act 1997 does not explicitly require an applicant for a declaration to have an interest in the matter, a discretion exists to refuse a declaration if the point is academic or if there is nothing to suggest that the applicant has an interest in the matter. In this case, Ecovale had not demonstrated any material or sentimental interest in the resolution of the point sought to be raised.

On these grounds, the court refused the application for leave to appeal, with costs. The President and Justice White agreed with Justice Pincus' reasoning and also refused the application for leave to appeal with costs.

Orders