Wall's Quarries P/L v Warwick Shire Council Summary

[2004] QCA 298
COURT OF APPEAL

McMURDO P
JERRARD JA
DUTNEY J

Appeal No 4800 of 2004

WALL'S QUARRIES PTY LTD

ACN 062 219 765 Appellant (Respondent)
and
WARWICK SHIRE COUNCIL First Respondent (Respondent)
and

WARREN R SKINNER AND
SANDRA E SKINNER AND Respondents (Second Respondents)
CRAIG R SKINNER (Applicants)

and

STATE OF QUEENSLAND Respondent by Election
(Respondent)

BRISBANE
..DATE 12/08/2004

ORDER

THE PRESIDENT: The parties in this application have requested that it be dealt with on the papers. The Court has read all the material filed in respect of this application. Wall's Quarries Pty Ltd has applied for leave to appeal against an order of the Planning and Environment Court at Brisbane on
19 April 2004 that it pay the costs of the first respondent, the Warwick Shire Council, and the second respondents, Warren R Skinner, Sandra E Skinner and Craig R Skinner ("the Skinners"). The Skinners bring this application to allow them to commence the development the subject of the primary Judge's decision.

Under s 4.1.59 Integrated Planning Act 1997 (Qld) the development the subject of the application for leave to appeal cannot be started until any appeal is decided or withdrawn.
Under s 4.1.59(2) however, this Court may, if satisfied that the outcome of the appeal before it would not be affected if the development or part of it is started before the appeal is decided, allow the development or part of it to start before the appeal is decided.

All the parties are agreeable to the Skinners' application being determined on the papers and subject to this Court's approval under s 4.1.59 they each consent to the orders that the Skinners now seek. As this appeal is only against the aspect of the judgment relating to the costs order and not the development approval itself, the Skinners should be entitled to start the development prior to the hearing of the application for leave to appeal. The outcome of any appeal, should leave be given, would not be affected by the commencement of the development before the hearing and determination of the appeal.

I would order under s 4.1.59(2) Integrated Planning Act 1997 (Qld) that the second respondents may start the development the subject of the primary Judge's decision before any appeal from that decision is decided on the condition that the development complies with the terms and conditions (a) to (c) agreed by the parties in the draft consent order initialled by me and placed on the file.

JERRARD JA: I agree.

DUTNEY J: I agree.

THE PRESIDENT: That is the order of the Court.

‑‑‑‑‑

CaseChat Overview and Summary

Wall's Quarries Pty Ltd sought leave to appeal against an order of the Planning and Environment Court, which required the company to pay the costs incurred by Warwick Shire Council and the Skinners. The Skinners, in turn, sought permission to commence development on their property before the appeal was heard and determined. The applicants, Warwick Shire Council and the Skinners, consented to the application being determined on the papers and agreed to the proposed orders if the Court approved them under the Integrated Planning Act 1997 (Qld).

The central legal issue before the Court was whether the Skinners should be allowed to proceed with their development before the appeal against the costs order was determined. The Court had to consider whether permitting the development would affect the outcome of the appeal. The Court also needed to assess whether the development, if started, would comply with the terms and conditions agreed upon by the parties.

The Court found that since the appeal was only against the aspect of the judgment relating to the costs order and not the development approval itself, the Skinners should be entitled to start the development before the appeal was heard. The Court determined that the outcome of any appeal, should leave be granted, would not be affected by the commencement of the development before the hearing and determination of the appeal. Consequently, the Court ordered under section 4.1.59(2) of the Integrated Planning Act 1997 (Qld) that the Skinners could start the development before any appeal from that decision was decided, provided the development complied with the terms and conditions (a) to (c) agreed by the parties in the draft consent order.

This decision allowed the Skinners to proceed with their development while the appeal was being considered, ensuring that the outcome of the appeal would not be prejudiced by the development's commencement. The Court's approval under the Integrated Planning Act 1997 (Qld) provided the necessary legal framework for the Skinners to initiate their development before the appeal was decided.

Wall's Quarries P/L v Warwick Shire Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established