Sushames v Pine Rivers Shire Council - [2006] QCA 171

SUPREME COURT OF QUEENSLAND

CITATION:

Sushames & Ors v Pine Rivers SC & Ors [2006] QCA 171

PARTIES:

STEPHEN SUSHAMES, SHARON SUSHAMES AND HILLMIR PTY LTD (TRADING AS J B GOODWIN MIDSON & PARTNERS) ACN 009 728 634
(appellant/first respondent)
v
PINE RIVERS SHIRE COUNCIL
(respondent/second respondent)
SONCOM PTY LTD ACN 108 029 634
(co-respondent/third respondent)
CENNZEAL PTY LTD ACN 091 984 744
(applicant/applicant)

FILE NO/S:

Appeal No 9408 of 2005
DC No 107 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

26 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

4 May 2006

JUDGES:

Williams and Keane JJA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal allowed1.

Appeal dismissed2.

Cennzeal to pay the costs of the respondents to its application for leave to appeal and of the appeal to be assessed on the standard basis3.

Order 3 is subject to parties making submissions as to the reserved costs in accordance with the Practice Directions within seven days.

4.

CATCHWORDS:

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS - QUEENSLAND - GENERALLY - where Soncom Pty Ltd applied to Pine Rivers SC for a development approval for land owned by Cennzeal - where Sushames and others appealed against Pine Rivers SC's decision to approve the application - where Cennzeal sought leave in P & E Court to be joined as a co-respondent to the Sushames appeal but leave was not granted - where Cennzeal now seeks leave to appeal to this Court against the decision of the P & E Court - where the Integrated Planning Act 1997 defines an "applicant" as including "the person in whom the benefit of the application vests" - whether Cennzeal is an "applicant" - whether leave to appeal should be granted and whether the appeal should be allowed

Integrated Planning Act 1997 (Qld), s 3.5.19, s 3.5.28, s 4.1.43, s 4.1.56, s 5.4.2

Architects Dewar & Associates Pty Ltd v Redland Shire Council [1997] QPELR 144, cited
Condo Fisheries Pty Ltd & Anor v Council of the City of Gold Coast [2000] QPELR 5, cited
Ogle v Pine Rivers Shire Council & Ors [2005] QPELR 291, considered

COUNSEL:

D J S Jackson QC for the applicant
B L Lillywhite (sol) for the first respondent
A N S Skoien for the second respondent
J J Haydon for the third respondent

SOLICITORS:

John M O'Connor & Company for the applicant
MacDonnells for the first respondent
Pine Rivers Shire Council Legal Services Department for the second respondent
Wendy Hart for the third respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and I agree with all that is said therein. I would, however, emphasise the following matters which influenced me in concluding that the appeal should be dismissed.

Schedule…

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] QCA 171
Decision Date: 26 May 2006

CaseChat Overview and Summary

Sushames and others appealed against a decision by Pine Rivers Shire Council to approve an application by Soncom Pty Ltd for development approval of land owned by Cennzeal. Cennzeal sought leave in the Planning and Environment Court to join the appeal as a co-respondent, but this was refused. Cennzeal now seeks leave to appeal to this Court against the refusal of leave by the Planning and Environment Court. The central issue is whether Cennzeal is an "applicant" under the Integrated Planning Act 1997, and if leave to appeal should be granted and the appeal allowed.

The court examined the definition of "applicant" in the Integrated Planning Act 1997, which includes "the person in whom the benefit of the application vests." The court found that Cennzeal, as the owner of the land, is the person who would benefit from the approval of the development application. Despite this, the court held that Cennzeal was not an applicant within the meaning of the Act because it had not made the application. The court further reasoned that the legislative intent was to provide a mechanism for interested parties to challenge planning decisions, and allowing Cennzeal to appeal would undermine this purpose. Additionally, the court noted that Cennzeal had not demonstrated any significant interest in the outcome of the appeal beyond its ownership of the land.

Consequently, the court allowed the application for leave to appeal but dismissed the appeal itself. Cennzeal was ordered to pay the costs of the respondents to its application for leave to appeal and of the appeal, which are to be assessed on the standard basis. The order is subject to the parties making submissions as to the reserved costs in accordance with the Practice Directions within seven days.

Orders

Orders of the court

Application for leave to appeal allowed1.

Appeal dismissed2.

Cennzeal to pay the costs of the respondents to its application for leave to appeal and of the appeal to be assessed on the standard basis3.

Order 3 is subject to parties making submissions as to the reserved costs in accordance with the Practice Directions within seven days.

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:	Sushames & Ors v Pine Rivers SC & Ors [2006] QCA 171
PARTIES:	STEPHEN SUSHAMES, SHARON SUSHAMES AND HILLMIR PTY LTD (TRADING AS J B GOODWIN MIDSON & PARTNERS) ACN 009 728 634 (appellant/first respondent) v PINE RIVERS SHIRE COUNCIL (respondent/second respondent) SONCOM PTY LTD ACN 108 029 634 (co-respondent/third respondent) CENNZEAL PTY LTD ACN 091 984 744 (applicant/applicant)
FILE NO/S:	Appeal No 9408 of 2005 DC No 107 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Integrated Planning Act
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	26 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	4 May 2006
JUDGES:	Williams and Keane JJA and White J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal allowed1. Appeal dismissed2. Cennzeal to pay the costs of the respondents to its application for leave to appeal and of the appeal to be assessed on the standard basis3. Order 3 is subject to parties making submissions as to the reserved costs in accordance with the Practice Directions within seven days. 4.
CATCHWORDS:	ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS - QUEENSLAND - GENERALLY - where Soncom Pty Ltd applied to Pine Rivers SC for a development approval for land owned by Cennzeal - where Sushames and others appealed against Pine Rivers SC's decision to approve the application - where Cennzeal sought leave in P & E Court to be joined as a co-respondent to the Sushames appeal but leave was not granted - where Cennzeal now seeks leave to appeal to this Court against the decision of the P & E Court - where the Integrated Planning Act 1997 defines an "applicant" as including "the person in whom the benefit of the application vests" - whether Cennzeal is an "applicant" - whether leave to appeal should be granted and whether the appeal should be allowed Integrated Planning Act 1997 (Qld), s 3.5.19, s 3.5.28, s 4.1.43, s 4.1.56, s 5.4.2 Architects Dewar & Associates Pty Ltd v Redland Shire Council [1997] QPELR 144, cited Condo Fisheries Pty Ltd & Anor v Council of the City of Gold Coast [2000] QPELR 5, cited Ogle v Pine Rivers Shire Council & Ors [2005] QPELR 291, considered
COUNSEL:	D J S Jackson QC for the applicant B L Lillywhite (sol) for the first respondent A N S Skoien for the second respondent J J Haydon for the third respondent
SOLICITORS:	John M O'Connor & Company for the applicant MacDonnells for the first respondent Pine Rivers Shire Council Legal Services Department for the second respondent Wendy Hart for the third respondent