S & L Developments P/L v Maroochy Shire Council - [2008] QCA 296

SUPREME COURT OF QUEENSLAND

CITATION:

S & L Developments P/L & Ors v Maroochy Shire Council & Ors [2008] QCA 296

PARTIES:

S & L DEVELOPMENTS PTY LTD ACN 089 625 347
LINDSAY AND GLENDA CLARK
(appellants/first respondents)
v
MAROOCHY SHIRE COUNCIL
(respondent/second respondent)
THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994
(first co-respondent/third respondent)
TOTAL ICE PTY LTD ACN 111 697 815
(second co-respondent/applicant)
FABCOT PTY LTD ACN 002 960 983
(third co-respondent/fourth respondent)

FILE NO/S:

Appeal No 784 of 2008
P & E Appeal No 1494 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

26 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2008

JUDGES:

McMurdo P, Fraser JA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused with costs.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – NOTICE AND ADVERTISING – NOTICE – FORM AND CONTENTS – where s 3.4.4 of IPA required public notification of the relevant development application – where the proposal included what it described as “a short term residential component” and “75 short stay rooms” – where the notification was effected in the approved form and described the application as being a hotel – where the developers’ information request responses revealed that the developers proposed a development that included 75 self-contained dwelling units – where the applicant contended that the notice did not comply with IPA – where the question of whether the notice complied with s 3.4.4 involved a question of fact – where the applicant further contended that the learned primary judge failed to give adequate reasons and took into account irrelevant criteria in reaching his findings of fact – where an appeal to this Court is restricted to errors of law and want of jurisdiction – whether the applicant should be granted leave to appeal

Integrated Planning Act 1997 (Qld), s 3.2.8, s 3.4.1, s 3.4.2, s 3.4.3, s 3.4.4, s 4.1.5A, s 4.1.56

Andrew v Pine Rivers Shire Council & Anor [2004] QPELR 536; [2004] QPEC 007, cited
Bukmanis & Anor v Maroochy Shire Council; S & L Developments and Ors v Maroochy Shire Council & Ors; Total Ice Pty Ltd v Maroochy Shire Council & Ors [2007] QPEC 113, affirmed
Camden & Anor v McKenzie & Ors [2008] 1 Qd R 39; [2007] QCA 136, cited
Curran & Ors v Brisbane City Council & Ors [2002] QPELR 58; [2001] QPEC 049, discussed
Cypressvale P/L & Anor v Retail Shop Leases Tribunal [1996] 2 Qd R 462; [1995] QCA 187, cited
Edwards & Anor v Douglas Shire Council & Ors [2000] QPELR 375; [2000] QPEC 054, distinguished
Edwards & Jenner v Douglas Shire Council [1999] QPELR 335, distinguished
Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476; [2000]…

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: [2008] QCA 296
Decision Date: 26 September 2008

CaseChat Overview and Summary

The case of S & L Developments P/L v Maroochy Shire Council concerns the interpretation and application of the Sunshine Coast Regional Planning Instrument (the Instrument) and the relevant provisions of the Integrated Planning Act 1997 (Qld) (IPA) in the context of a development application. The applicant, S & L Developments P/L, sought to develop a site into a hotel, including 75 short-stay rooms. Maroochy Shire Council approved the application, subject to conditions. The applicant argued that the council's approval was invalid because the notice provided to the public under section 3.4.4 of the IPA did not accurately describe the application as a hotel with 75 self-contained dwelling units. Instead, the notice described the application as a hotel with a short-term residential component.

The primary legal issue before the court was whether the notice provided by the council complied with the requirements of section 3.4.4 of the IPA. This required the court to determine whether the notice sufficiently described the nature of the development application, particularly in terms of the number and type of dwelling units proposed. A secondary issue was whether the primary judge erred in his reasons for finding that the notice was compliant and whether he considered irrelevant criteria. The applicant argued that the notice was misleading and that the primary judge did not adequately address the issue of compliance.

In determining the appeal, the court held that the question of whether the notice complied with the statutory requirements was a question of fact, which the primary judge had correctly decided. The court found that the notice was sufficiently descriptive, despite the minor discrepancy in the number of rooms. The court also found no error in the primary judge's consideration of the facts and reasons provided. The applicant's arguments regarding the alleged inadequacy of the reasons and the consideration of irrelevant criteria were dismissed.

The court concluded that the applicant had not demonstrated that the primary judge made an error of law or lacked jurisdiction, both of which are necessary to grant leave to appeal. Consequently, the application for leave to appeal was refused with costs.

Orders

Orders of the court

Application for leave to appeal refused with costs.

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:	S & L Developments P/L & Ors v Maroochy Shire Council & Ors [2008] QCA 296
PARTIES:	S & L DEVELOPMENTS PTY LTD ACN 089 625 347 LINDSAY AND GLENDA CLARK (appellants/first respondents) v MAROOCHY SHIRE COUNCIL (respondent/second respondent) THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 (first co-respondent/third respondent) TOTAL ICE PTY LTD ACN 111 697 815 (second co-respondent/applicant) FABCOT PTY LTD ACN 002 960 983 (third co-respondent/fourth respondent)
FILE NO/S:	Appeal No 784 of 2008 P & E Appeal No 1494 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Integrated Planning Act
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	26 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2008
JUDGES:	McMurdo P, Fraser JA and White J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused with costs.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – NOTICE AND ADVERTISING – NOTICE – FORM AND CONTENTS – where s 3.4.4 of IPA required public notification of the relevant development application – where the proposal included what it described as “a short term residential component” and “75 short stay rooms” – where the notification was effected in the approved form and described the application as being a hotel – where the developers’ information request responses revealed that the developers proposed a development that included 75 self-contained dwelling units – where the applicant contended that the notice did not comply with IPA – where the question of whether the notice complied with s 3.4.4 involved a question of fact – where the applicant further contended that the learned primary judge failed to give adequate reasons and took into account irrelevant criteria in reaching his findings of fact – where an appeal to this Court is restricted to errors of law and want of jurisdiction – whether the applicant should be granted leave to appeal Integrated Planning Act 1997 (Qld), s 3.2.8, s 3.4.1, s 3.4.2, s 3.4.3, s 3.4.4, s 4.1.5A, s 4.1.56 Andrew v Pine Rivers Shire Council & Anor [2004] QPELR 536; [2004] QPEC 007, cited Bukmanis & Anor v Maroochy Shire Council; S & L Developments and Ors v Maroochy Shire Council & Ors; Total Ice Pty Ltd v Maroochy Shire Council & Ors [2007] QPEC 113, affirmed Camden & Anor v McKenzie & Ors [2008] 1 Qd R 39; [2007] QCA 136, cited Curran & Ors v Brisbane City Council & Ors [2002] QPELR 58; [2001] QPEC 049, discussed Cypressvale P/L & Anor v Retail Shop Leases Tribunal [1996] 2 Qd R 462; [1995] QCA 187, cited Edwards & Anor v Douglas Shire Council & Ors [2000] QPELR 375; [2000] QPEC 054, distinguished Edwards & Jenner v Douglas Shire Council [1999] QPELR 335, distinguished Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476; [2000]…