WAW Developments Pty Ltd v Brisbane City Council - [2011] QCA 47

SUPREME COURT OF QUEENSLAND

CITATION:

WAW Developments Pty Ltd v Brisbane City Council [2011] QCA 47

PARTIES:

WAW DEVELOPMENTS PTY LTD
ACN 084 429 827
(applicant)
v
BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

Appeal No 9979 of 2010
P & E Appeal No 3586 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

18 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2011

JUDGES:

Muir and Chesterman JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal is granted;

2.   The appeal is allowed;

3.   The order of the Planning and Environment Court is set aside;

4.   The respondent is to pay the costs of the application and appeal.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – FORM AND CONTENTS OF APPLICATION – VALIDITY OF APPLICATION GENERALLY – where the applicant built a raised deck over the footpath outside its premises and sought development approval for the use of the structure for outdoor dining – where there was no question in the proceedings about the legality of the structure itself – where the application for “evidence of resource entitlement” was acknowledged by the departmental administration officer – where the departmental administration officer indicated that the Department did not require tenure over the subject area and that the activity of outdoor dining was covered by local laws – where the applicant claimed that the relevant State representative was satisfied with the development and thus could proceed according to s 3.2.1(5)(c) of the Integrated Planning Act 1997 (Qld) – whether the departmental administration officer’s letter amounted to an indication that the Chief Executive was satisfied that the development might proceed – whether the application was a ‘properly made’ one

Integrated Planning Act 1997 (Qld), s 3.2.1(5)(c) (repealed)
Integrated Planning Regulation 1998 (Qld), s 12, schedule 10 (item 8) (repealed)

Stockland Property Management Pty Ltd v Cairns City Council (2009) 171 LGERA 1; [2009] QCA 311, considered

COUNSEL:

C L Hughes SC, with D M Favell, for the applicant
M D Hinson SC for the respondent

SOLICITORS:

Colwell Wright Solicitors for the applicant
Brisbane City Legal Practice for the respondent

[1] MUIR JA: I agree with the orders proposed by Chesterman JA for the reasons given by his Honour.

[2] CHESTERMAN JA: The applicant appealed to the Planning and Environment Court (“P & E Court”) against the respondent’s refusal of its development application:

“To extend the existing approved Restaurant Use … over the footway immediately adjoining the existing activity by way of construction of a steel and concrete deck (the structure), and doorway leading to the structure, for use by the Restaurant for Outdoor Dining … .”

[3] The respondent applied to the P & E Court for an order summarily dismissing the appeal to that court on the ground that the application was…

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: [2011] QCA 47
Decision Date: 18 March 2011

CaseChat Overview and Summary

In the matter of WAW Developments Pty Ltd v Brisbane City Council, the dispute involved the legality of a development application concerning a raised deck built over a footpath. The Brisbane City Council challenged the validity of the application submitted by the applicant, WAW Developments Pty Ltd, which sought approval for using the raised deck for outdoor dining. The matter was heard and determined in the Queensland Court of Appeal. The central legal issues before the court were whether the communication from the departmental administration officer constituted an approval under section 3.2.1(5)(c) of the Integrated Planning Act 1997 (Qld), and if the applicant's development application was 'properly made'. The court considered the statutory framework governing development applications and the specific provisions related to outdoor dining and development approvals.

The court examined the statutory language and found that the communication from the departmental administration officer did not amount to an explicit approval for the development as required by the legislation. The officer's letter indicated that the department did not require tenure over the area and that outdoor dining was permitted under local laws, but it did not explicitly state that the Chief Executive was satisfied that the development could proceed. This distinction was critical in determining whether the applicant's development application was properly made. The court concluded that the absence of an explicit approval rendered the application invalid. Consequently, the court granted the applicant leave to appeal and allowed the appeal, setting aside the decision of the Planning and Environment Court. The respondent was ordered to pay the costs of the application and appeal.

Orders

Orders of the court

1. The application for leave to appeal is granted;

2. The appeal is allowed;

3. The order of the Planning and Environment Court is set aside;

4. The respondent is to pay the costs of the application and appeal.

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:	WAW Developments Pty Ltd v Brisbane City Council [2011] QCA 47
PARTIES:	WAW DEVELOPMENTS PTY LTD ACN 084 429 827 (applicant) v BRISBANE CITY COUNCIL (respondent)
FILE NO/S:	Appeal No 9979 of 2010 P & E Appeal No 3586 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Integrated Planning Act
ORIGINATING COURT:	Planning and Environment Court
DELIVERED ON:	18 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	10 March 2011
JUDGES:	Muir and Chesterman JJA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is granted; 2. The appeal is allowed; 3. The order of the Planning and Environment Court is set aside; 4. The respondent is to pay the costs of the application and appeal.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – FORM AND CONTENTS OF APPLICATION – VALIDITY OF APPLICATION GENERALLY – where the applicant built a raised deck over the footpath outside its premises and sought development approval for the use of the structure for outdoor dining – where there was no question in the proceedings about the legality of the structure itself – where the application for “evidence of resource entitlement” was acknowledged by the departmental administration officer – where the departmental administration officer indicated that the Department did not require tenure over the subject area and that the activity of outdoor dining was covered by local laws – where the applicant claimed that the relevant State representative was satisfied with the development and thus could proceed according to s 3.2.1(5)(c) of the Integrated Planning Act 1997 (Qld) – whether the departmental administration officer’s letter amounted to an indication that the Chief Executive was satisfied that the development might proceed – whether the application was a ‘properly made’ one Integrated Planning Act 1997 (Qld), s 3.2.1(5)(c) (repealed) Integrated Planning Regulation 1998 (Qld), s 12, schedule 10 (item 8) (repealed) Stockland Property Management Pty Ltd v Cairns City Council (2009) 171 LGERA 1; [2009] QCA 311, considered
COUNSEL:	C L Hughes SC, with D M Favell, for the applicant M D Hinson SC for the respondent
SOLICITORS:	Colwell Wright Solicitors for the applicant Brisbane City Legal Practice for the respondent