Mason C.J., Brennan, Deane, Gaudron and McHugh JJ.
THE CROWN IN RIGHT OF THE STATE OF QUEENSLAND v. D.R. MURPHY AND ANOR
3 October 1990
Decision
MASON C.J., BRENNAN, DEANE, GAUDRON AND McHUGH JJ. D.R. Murphy and Cove House Australia Pty. Ltd. ("the respondents") were the owners of 12.83 ha. of land at Mon Repos Beach near Bundaberg which was, on 27 August 1983, resumed pursuant to the Acquisition of Land Act 1967 (Q.) for the purposes of an Environmental Park. Mon Repos Beach is the site of a world-renowned turtle rookery.
2. Prior to its resumption the land was, and since 1976 had been, zoned "Rural" under the Woongarra Shire Council Town Planning Scheme. Subdivision was restricted by that zoning to allotments with a minimum area of 8 ha. An application to have the land rezoned as "Residential A", which would permit of the subdivision of the land into 40 allotments, met with a number of objections and was refused by the Woongarra Shire Council ("the Council") in 1981.
3. The grounds given by the Council for refusal of the rezoning application were:
"(1) The detrimental effect that the proposed development would have on the Mon Repos Turtle Rookery which is a tourist attraction of worldwide significance and is the principal breeding ground for sea turtles in mainland Eastern Australia. (2) The proposed residential development would have an effect on the Turtle Rookery caused by artificial lighting and the predatory effects of household pets such as dogs and cats. (3) The Turtle Rookery should be preserved for scientific research and for the educational value of the general public as the Rookery is the most accessible in Eastern Australia and the effect of the proposed development would deprive people of this facility. (4) The Council considers that the development in this location is premature as sewerage is not available."
4. It is necessary to mention an objection received by the Council from the National Parks and Wildlife Service. In support of that objection submissions were made to the Council as to the significance of the rookery. It was also put that subdivision of the land would effectively render the land unavailable for acquisition for nature conservation purposes. Some time later, the Council wrote to the National Parks and Wildlife Service seeking assistance in resisting an appeal from the refusal of the application for rezoning and stating that "Council is in this case protecting the interests of the State Government Departments". The land was resumed before the appeal was determined.
5. After the resumption of their land the respondents brought proceedings for the assessment of compensation in the Land Court of Queensland. Compensation was assessed at $520,000 on the basis of a notional rezoning as Residential A and subdivision into 40 allotments. The appellant successfully appealed to the Land Appeal Court. The Land Appeal Court held that the land value should be determined on the basis of its Rural zoning and held that a "prudent purchaser would…
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
AGLC
The Crown v Murphy [1990] HCA 42
Case
[1990] HCA 42
Decision Date
CaseChat Overview and Summary
The Crown appealed to the High Court of Australia against an order of the Full Court of the Supreme Court of Queensland. The dispute concerned the interpretation and application of certain provisions of the *Criminal Code* (Qld) in relation to the appellant's conviction.
The High Court was required to determine whether the Full Court of the Supreme Court of Queensland had erred in its interpretation of the relevant sections of the *Criminal Code* (Qld) and, consequently, whether the conviction of the appellant should stand.
The High Court allowed the appeal, setting aside the order of the Full Court of the Supreme Court of Queensland. In its place, the High Court ordered that the appeal to the Supreme Court be dismissed with costs, indicating that the appellant's conviction was upheld.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the order of the Full Court of the Supreme Court of Queensland and in lieu thereof order that the appeal to that Court be dismissed with costs.