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Wise v Maroochy Shire Council

Wise v Maroochy Shire Council

Case [1998] QCA 349 3 November 1998

Jurisdiction

Standing

Admissibility of Evidence

Limitation Periods

Contribution to Infrastructure

Planning & Development Law

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IN THE COURT OF APPEAL [1998] QCA 349
SUPREME COURT OF QUEENSLAND

Appeal No. 3144 of 1998

Brisbane
[Maroochy S.C. v. Wise & Anor.]
BETWEEN:

MAROOCHY SHIRE COUNCIL
(Respondent) Appellant

AND:

P F WISE and D M WISE
(Appellants) Respondents
McMurdo P.
Pincus J.A.
Jones J.

Judgment delivered 3 November 1998
Judgment of the Court
APPEAL ALLOWED WITH COSTS.
THE SENTENCE IN THE ORDER OF THE PLANNING AND ENVIRONMENT COURT DATED 20 MARCH 1998 UNDER THE HEADING "EXTERNAL ROADWORKS" IS STRUCK OUT AND THE MATTER IS REMITTED TO THE PLANNING AND ENVIRONMENT COURT FOR FURTHER CONSIDERATION OF THE QUESTION OF AN APPROPRIATE EXTERNAL ROADWORKS CONDITION, WITH THE ASSISTANCE OF SUCH FURTHER EVIDENCE, IF ANY, AS THAT COURT PERMITS TO BE ADDUCED.
CATCHWORDS: TOWN PLANNING - rezoning application - lawfulness of condition imposed - contribution of infrastructure for roads - no specific development proposal - whether power to impose conditions is limited by s. 6.2 of the Act - construction of "relevant or reasonably required".

Local Government (Planning and Environment) Act 1990 ss. 6.1(1), 6.2
Lloyd v. Robinson (1962) 107 C.L.R. 142
Cardwell Shire Council v. King Ranch Australia Pty Ltd (1984) 58 A.L.J.R. 386
Proctor v. Brisbane City Council (1993) 81 L.G.E.R.A. 398

Counsel:Mr C Hughes for the appellant.
Mr P Lyons Q.C., with him Mr T Trotter, for the respondents.

Solicitors:Maroochy Shire Council Legal Department for the appellant.
Lestar Manning Lawyer for the respondents.

Hearing Date: 19 October 1998.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 3144 of 1998

Brisbane
BeforeMcMurdo P.
Pincus J.A.
Jones J.

[Maroochy S.C. v. Wise & Anor.]
BETWEEN:

MAROOCHY SHIRE COUNCIL
(Respondent) Appellant

AND:

P F WISE and D M WISE
(Appellants) Respondents

REASONS FOR JUDGMENT - THE COURT
Judgment delivered 3 November 1998

This is an appeal from the Planning and Environment Court in which the issue has to do with a single question: the lawfulness of a condition sought to be imposed in relation to a rezoning. The respondents applied to the appellant Council to exclude an area of land at Maroochydore from the Drainage Problem Zone and include it in the Commercial Zone. The Council was prepared to do so on certain conditions, including a contribution to infrastructure for roads, and the matter reached the Planning and Environment Court (Quirk DCJ) as a dispute about the conditions. The application for amendment of the Plan, made under s. 4.3 of the Local Government (Planning and Environment) Act 1990 ("the Act"), did not include any specific development proposal; that gave rise to a difficulty, in that the Planning and Environment Court had no means of determining to what extent the development which might ultimately take place on the rezoned land would increase the load on the existing road system.
The Council sought to impose a condition that the respondents pay the Council $890,000 as a contribution towards external roadworks, described as including but not being limited to certain specified works in the vicinity of the…

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.

Continue reading Wise v Maroochy Shire Council

Details

AGLC: Wise v Maroochy Shire Council [1998] QCA 349
Case: [1998] QCA 349
Decision Date: 3 November 1998

CaseChat Overview and Summary

The Supreme Court of Queensland considered an appeal regarding a rezoning application by P F Wise and D M Wise from a Drainage Problem Zone to a Commercial Zone, subject to certain conditions imposed by the Maroochy Shire Council. The central issue was the legality of a condition requiring the respondents to contribute $890,000 to infrastructure for roads. The Planning and Environment Court had ruled against the condition, finding it unlawful. The Court of Appeal was tasked with determining whether the Council had the authority to impose such a condition under the Local Government (Planning and Environment) Act 1990.

The primary legal question was whether the Council could impose a condition requiring a contribution towards infrastructure for roads, given the absence of a specific development proposal and the limitations imposed by the Act. The respondents argued that the Council's power to impose conditions was limited by section 6.2 of the Act, which deals with contributions towards water supply and sewerage works, and that this implicitly limited their power to impose similar conditions for other infrastructure like roads. The Council, on the other hand, contended that such conditions were within their discretion under the general power to impose conditions on rezoning applications.

The Court of Appeal examined relevant statutory provisions and previous case law, including Lloyd v. Robinson, Cardwell Shire Council v. King Ranch Australia Pty Ltd, and Proctor v. Brisbane City Council. The Court held that the term "relevant or reasonably required" should be interpreted broadly, allowing for conditions that are either relevant or reasonably required, as long as they are not "so unrelated to the land... that there is no real connexion between [what the condition requires] and the contemplated development." The Court found that the condition requiring a contribution towards external roadworks was not beyond the Council's power, as it was reasonably related to the development of the rezoned land.

The Court of Appeal allowed the appeal, struck out the sentence in the Planning and Environment Court's order regarding the external roadworks condition, and remitted the matter to the Planning and Environment Court for further consideration of an appropriate condition, with the opportunity for additional evidence.

Orders