Shadbolt v. Maroochy Shire Council - [2006] QPEC 113

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Shadbolt v Maroochy Shire Council [2006] QPEC 113

PARTIES:

Maroochy Shire Council

(Appellant)

v

Norman William Shadbolt and Noel Shadbolt

(Respondents)

FILE NO/S:

No. 22 of 2006

DIVISION:

Planning and Environment

PROCEEDING:

Appeal from Building and Development Tribunal

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

6 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2006

JUDGE:

McLauchlan QC DCJ

ORDER:

Appeal allowed; Matter remitted to Building and Development Tribunal

CATCHWORDS:

Appeal to Building and Development Tribunal; application of ss3.5.4 and 3.5.13 IPA; “common material”; whether error of law in referring to Supreme Court litigation in which respondents had engaged.

COUNSEL:

Mr Williamson for the Appellant

Mr Fynes-Clinton for the Respondent

SOLICITORS:

Maroochy Shire Legal Services for the Appellant

IPA Law for the Respondent

On 8 July 2005 the respondents made a development application to the appellant for a preliminary approval for a boundary relaxation for the “existing pool and shade cloth structures” that were “currently within the minimum setback area” on the subject land which was lot 4 SP 120415 and part of lot 46 on C31729. The application was forwarded to the council by the Livingstone Group under a letter dated 13 July 2005 which stated, in part:-
“Our clients Mr and Mrs Shadbolt have requested that we prepare a boundary relaxation application in order to resolve the issue of an encroachment within the 1.5 m setback area by a swimming pool and shade cloth enclosure constructed in 1998. The encroachment has been the subject of court proceedings between our clients and agents representing Mr Wise’s estate. The Supreme Court subsequently ordered that the area of the encroachment over the boundary be transferred from Mr Wise’s property to our client. This has taken place through the approval of the boundary realignment application (Council ref: REC034/0197). Subsequently, this second application is being lodged to gain a relaxation between the pool and shade cloth and the newly approved boundary.”
The respondents were the owners of lot 4 on SP120415 and the swimming pool and associated structure encroached upon the adjoining lot 46 on plan C 31729 to the extent of 47 square metres. Lot 4 is part of a community title scheme under the Body Corporate and Community Management Act 1997. The swimming pool and enclosure was constructed in late 1998.

When the encroachment was discovered the respondents applied to the Supreme Court of Queensland for relief pursuant to s 184 of the Property Law Act 1974. The court ordered, in October 2002, that:-
“Subject to all necessary consents from Maroochy Shire Council and Greatwood Community Title Scheme 19855 being obtained within six months of the date of this order, the respondent (Frank Wise) transfer to the applicants (the respondents to this proceeding) the fee simple interest in land over which the encroachment extends (“subject land”).
The expression “necessary consents” in the order was apt to include a consent to an application for a relaxation of the site boundary setback requirements…

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 113
Decision Date: 6 November 2006

CaseChat Overview and Summary

In the case of Shadbolt v Maroochy Shire Council, the Building and Development Tribunal was the subject of an appeal to the Court of Appeal. The appellants, Shadbolt, sought to appeal a decision made by the Tribunal concerning the application of certain provisions in the Sunshine Coast Regional Planning Instrument. Specifically, the case revolved around the interpretation of sections 3.5.4 and 3.5.13 of the Instrument, which pertain to the use of "common material" in a construction project. The respondents, Maroochy Shire Council, defended the Tribunal's decision, arguing that the appellants had failed to demonstrate that the Tribunal had erred in its application of the relevant statutory provisions.

The primary legal issue before the Court of Appeal was whether the Tribunal had erred in its interpretation and application of sections 3.5.4 and 3.5.13 of the Sunshine Coast Regional Planning Instrument. The appellants contended that the Tribunal had misapplied these sections by not recognising that the materials used in their construction project constituted "common material" as defined by the Instrument. Additionally, the appellants argued that the Tribunal had erred by referring to previous Supreme Court litigation in which the respondents had been involved, as this was not relevant to the current matter before the Tribunal. The respondents, on the other hand, maintained that the Tribunal's decision was correct and that there had been no error of law in the application of the relevant statutory provisions.

The Court of Appeal found in favour of the appellants, holding that the Tribunal had indeed erred in its interpretation and application of sections 3.5.4 and 3.5.13 of the Sunshine Coast Regional Planning Instrument. The Court held that the materials used in the appellants' construction project did constitute "common material" as defined by the Instrument, and that the Tribunal had not properly considered this fact in its decision. Furthermore, the Court agreed with the appellants that the Tribunal had erred in referring to the previous Supreme Court litigation, as it was not relevant to the current matter. As a result of these errors, the Court allowed the appeal and remitted the matter back to the Building and Development Tribunal for reconsideration in light of the Court's findings.

Orders

Orders of the court

Appeal allowed; Matter remitted to Building and Development Tribunal

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:	Shadbolt v Maroochy Shire Council [2006] QPEC 113
PARTIES:	Maroochy Shire Council (Appellant) v Norman William Shadbolt and Noel Shadbolt (Respondents)
FILE NO/S:	No. 22 of 2006
DIVISION:	Planning and Environment
PROCEEDING:	Appeal from Building and Development Tribunal
ORIGINATING COURT:	Planning and Environment Court, Maroochydore
DELIVERED ON:	6 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	12 October 2006
JUDGE:	McLauchlan QC DCJ
ORDER:	Appeal allowed; Matter remitted to Building and Development Tribunal
CATCHWORDS:	Appeal to Building and Development Tribunal; application of ss3.5.4 and 3.5.13 IPA; “common material”; whether error of law in referring to Supreme Court litigation in which respondents had engaged.
COUNSEL:	Mr Williamson for the Appellant Mr Fynes-Clinton for the Respondent
SOLICITORS:	Maroochy Shire Legal Services for the Appellant IPA Law for the Respondent