Serafini v Gladstone Regional Council - [2013] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

Serafini v Gladstone Regional Council [2013] QCA 162

PARTIES:

LUIS SERAFINI
(applicant)
v
GLADSTONE REGIONAL COUNCIL
(respondent)

FILE NO/S:

Appeal No 972 of 2013
P & E Appeal No 60 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Sustainable Planning Act

ORIGINATING COURT:

Planning and Environment Court at Maroochydore

DELIVERED ON:

21 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2013

JUDGES:

Holmes and Muir JJA and Mullins 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 – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondent refused the applicant’s development application seeking a development permit for the reconfiguration of one large rural lot into 16 lots – where the applicant’s appeal to the Planning and Environment Court was dismissed – where the applicant submits that the primary judge erred when, in determining whether the proposal conflicted with the Scheme, he substituted other words for those of the Scheme – where the applicant contends that the primary judge erred in holding that he was not taken to any part of the respondent’s Rural Living Strategy that indicated a level of unsatisfied need or demand for the development of lots having the characteristics of the subject land – whether there was an error of law sufficient to warrant the granting of leave to appeal under s 498 of the Sustainable Planning Act 2009 (Qld)

Sustainable Planning Act 2009 (Qld), s 498

Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59, cited
Office of Fair Trading & Ors v IBA Health Ltd [2004] 4 All ER 1103, [2004] EWCA Civ 142; cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited
Serafini v Gladstone Regional Council & Anor [2012] QPEC 83, related
Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112; [2009] NSWCA 390, cited

COUNSEL:

The applicant appeared on his own behalf
M A Williamson for the respondent

SOLICITORS:

The applicant appeared on his own behalf
MRH Lawyers for the respondent

HOLMES JA: I agree with the reasons of Muir JA and the order he proposes.

MUIR JA: The applicant’s appeal to the Planning and Environment Court against a decision of the respondent council refusing a development application seeking a development permit for the reconfiguration of a 935 hectare rural lot into 16 lots was dismissed on 13 December 2012. The applicant applies for leave to appeal against that Court’s decision under Division 14 of Part 1 of Chapter 7 of the Sustainable Planning Act 2009 (the Act). By virtue of s 498 of the Act, an appeal lies only with leave of this Court and the grounds of appeal are limited, relevantly, to error or mistake of law.

Relevant facts

The subject property is…

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: [2013] QCA 162
Decision Date: 21 June 2013

CaseChat Overview and Summary

The case of Serafini v Gladstone Regional Council involved an applicant who sought to reconfigure one large rural lot into 16 smaller lots, necessitating a development permit. The Gladstone Regional Council denied this application, leading the applicant to appeal to the Planning and Environment Court. The Court dismissed the appeal, and the applicant subsequently sought leave to appeal to the Court of Appeal, arguing that the primary judge erred in interpreting the planning scheme and in failing to consider evidence of unsatisfied need or demand for the proposed lots.

The legal issues in this case revolved around the interpretation of the planning scheme and the consideration of evidence regarding unsatisfied need or demand for the proposed lots. The applicant argued that the primary judge misinterpreted the planning scheme by substituting words and failed to consider relevant evidence. The Court of Appeal needed to determine if these errors constituted a sufficient error of law to warrant granting leave to appeal.

In evaluating the applicant's arguments, the Court of Appeal held that there was no error of law in the primary judge's interpretation of the planning scheme. The Court found that the primary judge correctly applied the scheme and did not substitute other words for those of the scheme. Furthermore, the Court determined that the primary judge adequately considered the evidence regarding unsatisfied need or demand, and there was no indication that the primary judge overlooked relevant parts of the Rural Living Strategy. Consequently, the Court concluded that the errors alleged by the applicant did not amount to a sufficient error of law to warrant granting leave to appeal.

The Court of Appeal refused the application for leave to appeal and ordered the applicant to pay the costs of the appeal.

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:	Serafini v Gladstone Regional Council [2013] QCA 162
PARTIES:	LUIS SERAFINI (applicant) v GLADSTONE REGIONAL COUNCIL (respondent)
FILE NO/S:	Appeal No 972 of 2013 P & E Appeal No 60 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Sustainable Planning Act
ORIGINATING COURT:	Planning and Environment Court at Maroochydore
DELIVERED ON:	21 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2013
JUDGES:	Holmes and Muir JJA and Mullins 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 – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondent refused the applicant’s development application seeking a development permit for the reconfiguration of one large rural lot into 16 lots – where the applicant’s appeal to the Planning and Environment Court was dismissed – where the applicant submits that the primary judge erred when, in determining whether the proposal conflicted with the Scheme, he substituted other words for those of the Scheme – where the applicant contends that the primary judge erred in holding that he was not taken to any part of the respondent’s Rural Living Strategy that indicated a level of unsatisfied need or demand for the development of lots having the characteristics of the subject land – whether there was an error of law sufficient to warrant the granting of leave to appeal under s 498 of the Sustainable Planning Act 2009 (Qld) Sustainable Planning Act 2009 (Qld), s 498 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59, cited Office of Fair Trading & Ors v IBA Health Ltd [2004] 4 All ER 1103, [2004] EWCA Civ 142; cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited Serafini v Gladstone Regional Council & Anor [2012] QPEC 83, related Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112; [2009] NSWCA 390, cited
COUNSEL:	The applicant appeared on his own behalf M A Williamson for the respondent
SOLICITORS:	The applicant appeared on his own behalf MRH Lawyers for the respondent