T M Burke Est P/L v Noosa S C

The matter before the Court was an appeal from a decision of the Planning and Environment Court of Queensland, concerning a dispute between T M Burke Est P/L and the Noosa Shire Council. The primary issue was whether the council could rely on a provision of the Local Government (Planning and Environment) Act 1990 to avoid paying compensation to the appellant for injurious affection. The Court of Appeal had previously ruled in favour of the appellant on this issue, but the council sought to rely on a different provision to argue against the payment of compensation.

The legal issues before the Court included whether the scope of the preliminary question submitted for determination in the original Court of Appeal decision was limited to certain subsections of s3.5(4) of the Act. The appellant argued that the council was estopped from relying on s3.5(4)(d) of the Act, due to an Anshun estoppel arising from the previous decision of the Court of Appeal. The council, on the other hand, sought to rely on s3.5(4)(d) to argue that compensation was not payable.

The Court found that the council could not rely on s3.5(4)(d) of the Act, due to an Anshun estoppel arising from the previous decision of the Court of Appeal. The Court held that the scope of the preliminary question submitted for determination in the original Court of Appeal decision was not limited to certain subsections of s3.5(4) of the Act. The Court further held that the Court of Appeal had the power to re-open a previous decision for the purpose of correcting an error of law after an order had been perfected. The Court allowed the appeal, set aside the order of the Planning and Environment Court, and declared that the council was precluded from asserting that compensation was not payable to the appellant pursuant to s 3.5 (4)(d) of the Act. The council was ordered to pay the appellant's costs of the appeal.