Townacre Development Pty Ltd v Thuringowa City Council - [1995] QCA 20

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 55 of 1994
Brisbane

[Townacre Development P/L v. Council of the City of

Thuringowa]

BETWEEN:

TOWNACRE DEVELOPMENT PTY LTD

(Appellant) Appellant

AND:

COUNCIL OF THE CITY OF THURINGOWA

(Respondent) Respondent

FITZGERALD P.
DAVIES J.A.

MCPHERSON J.A.

Judgment delivered 23/02/1995

SEPARATE REASONS FOR JUDGMENT FITZGERALD P., DAVIES, AND

MCPHERSON JJ.A., ALL CONCURRING AS TO THE ORDERS MADE.

APPEAL ALLOWED WITH COSTS TO BE TAXED.
IN ACCORDANCE WITH THE PARTIES' AGREEMENT AS TO WHAT SHOULD
OCCUR IN THIS EVENTUALITY, THE FOLLOWING CONDITION, IN WHICH
THE APPELLANT IS REFERRED TO AS THE "SUBDIVIDER", SHOULD
REPLACE THE RELEVANT CONDITION IMPOSED BY THE COUNCIL ON ITS
APPROVAL OF THE APPELLANT'S SUBDIVISIONAL APPLICATION.
"5.1 THE SUBDIVIDER SHALL PAY TO THE COUNCIL A CONTRIBUTION
TOWARDS THE COST OF THE PROVISION OF WATER SUPPLY AND
SEWERAGE HEADWORKS PURSUANT TO THE RELEVANT PROVISIONS OF
THE LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT 1990.
5.2 THE AMOUNTS OF SUCH CONTRIBUTIONS ARE SIXTEEN THOUSAND
TWO HUNDRED AND TWENTY-FIVE DOLLARS AND FORTY-TWO CENTS
($16,225.42) PER HECTARE OF SUBDIVISION FOR WATER SUPPLY
HEADWORKS AND ELEVEN THOUSAND ONE HUNDRED AND SEVENTEEN
DOLLARS AND EIGHTY-SEVEN CENTS ($11,117.87) PER HECTARE OF
SUBDIVISION FOR SEWERAGE HEADWORKS.
5.3 THE CONTRIBUTIONS REQUIRED TO BE PAID TO THE COUNCIL
TOWARDS THE COST OF THE RELEVANT HEADWORKS PURSUANT TO THIS
APPROVAL, AS PROVIDED IN CONDITION 5.2 HEREOF, SHALL BE
PAYABLE TO THE COUNCIL PRIOR TO THE COUNCIL NOTING ITS
APPROVAL UNDER SEAL ON THE RELEVANT PLANS OF SURVEY."

CATCHWORDS: LOCAL GOVERNMENT - effect of s. 6.2(6)(a) Local Government (Planning & Environment) Act 1990 - whether local government entitled to require a contribution for cost of water supply and sewerage headworks - whether limitation in by-law preserved by s. 6.2(6)(a) PEA.

STATUTORY INTERPRETATION - "relevant date" in s. 6.2(6)(a) - whether repeal of s. 34(12)(l) Local Government Act 1936 also repealed relevant by-law or whether legislative power of by-law arose from s. 30 of that Act

Counsel:	R.W. Gotterson Q.C. with him P.J. Lyons Q.C. for the Appellant S. Couper Q.C. with him K. Wilson for the Respondent
Solicitors:	Wilson Ryan & Grose for the Appellant City Solicitor for the Respondent
Date of Hearing:	8 November 1994
IN THE COURT OF APPEAL	[1995] QCA 020
SUPREME COURT OF QUEENSLAND	Appeal No. 55 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. McPherson J.A.

[Townacre Development P/L v. Council of the City of

Thuringowa]

BETWEEN:

TOWNACRE DEVELOPMENT PTY LTD

(Appellant) Appellant

AND:

COUNCIL OF THE CITY OF THURINGOWA

(Respondent) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 23/02/1995

This appeal from the Planning and Environment Court at Townsville involves a dispute as to the amount which the appellant, Townacre Pty Ltd., is required to pay to the respondent, Council of the City of Thuringowa, for "contribution towards the cost of the provision of Water Supply and Sewerage Headworks". On 16 September 1993, the appellant applied for the Council's approval of a subdivision of land at Burnda Street, Kirwan; the Council approved the application…

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: [1995] QCA 20
Decision Date: 23/02/1995

CaseChat Overview and Summary

Townacre Development Pty Ltd appealed against the decision of the Planning and Environment Court, which had rejected the appellant's challenge to a condition imposed by the respondent, Council of the City of Thuringowa, on its approval of the appellant's application for a subdivision of land at Burnda Street, Kirwan. The Court of Appeal allowed the appeal and substituted a condition for the condition imposed by the Council. The parties agreed on all matters except the amount of the appellant's contribution for water supply and sewerage headworks. The appeal hinged on the interpretation of s.6.2(6)(a) of the Local Government (Planning and Environment) Act 1990, which provided that the amount of any contribution towards the cost of water supply and sewerage headworks was not to exceed the cost of the works "which the Local Authority could lawfully impose by way of any by-law that was in existence at 1 September 1985 and which required or may have required the applicant to contribute towards the cost of those works." The appellant's application to the Council was made under the Local Government (Planning and Environment) Act, which permitted a local authority to approve an application for approval of a subdivision subject to a condition requiring payment of an amount towards the cost of water supply and sewerage headworks. The parties' dispute concerned the operation of s.6.2(6)(a) in the particular circumstances. The Court found that the appellant was entitled to succeed and the appeal should be allowed, with costs to be taxed.

Orders