Woolworths Ltd v Caboolture Shire Council - [2004] QPEC 15

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Woolworths Ltd v Caboolture Shire Council & The Warehouse Group (Australia) Pty Ltd

Woolworths Ltd v Caboolture Shire Council & Makro Warehouse Pty Ltd [2004] QPEC 015

PARTIES:

WOOLWORTHS LIMITED
ACN 000 014 675
Applicant
v
CABOOLTURE SHIRE COUNCIL
First Respondent
And
THE WAREHOUSE GROUP (AUSTRALIA) PTY LTD ACN 003 038 702
Second Respondent

WOOLWORTHS LIMITED
ACN 000 014 675
Applicant
v
CABOOLTURE SHIRE COUNCIL
First Respondent
And
MAKRO WAREHOUSE PTY LTD
ACN 087 578 578

Second Respondent

FILE NO:

2346/2003; 3465/2003

DIVISION:

Planning & Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court of Queensland, Brisbane

DELIVERED ON:

7 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

27, 28 and 29 January 2004

JUDGE:

Alan Wilson SC, DCJ

ORDER:

CATCHWORDS:

LOCAL GOVERNMENT – TOWN PLANNING – INJUNCTION PROCEEDINGS – CLASSIFICATION OF USE – whether premises used as retail showrooms or shops – whether unauthorised use – whether injunctive relief ought to be granted.

Acts Interpretation Act 1954 s 14A

Integrated Planning Act 1997

Cases considered:

BCC v Bemcove Pty Ltd (1998) 104 LGERA 1

Boral Resources (Qld) Pty Ltd v Cairns City Council (1997) 2 Qd R 31

Degee v Brisbane City Council (1998) QPELR 287;

Fitzgibbon’s Hotels Pty ltd v Logan City Council (1997) QPELR 208
Foodbarn Pty Ltd v Solicitor-General

Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313
Jenkinson Pty Ltd v Caloundra City Council (2002) QPELR 527

Laidley Shire Council v Friend (1997) 93 LGERA 128

Lewiac Pty Ltd v. Gold Coast City Council (1994) 83 LGERA 224

Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Longhurst v Austexx Developments Pty Ltd [2003] QCA 576

Luke v Maroochy Shire Council & Anor (2003) QPELR 447

Noosa Shire Council v Settlers Cove Development Pty Ltd (1996) 93 LGERA 232

Nordale Management Pty Ltd v. Maroochy Shire Council (1995) QPLR 368

Snowside Pty Ltd v Holroyd City Council (2003) 126 LGERA 279
WarehouseGroup (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270
Waringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Westfield Management Ltd v Gaz Corp Pty Ltd (2004) NSWLEC 7
Westfield Management Ltd v Pine Rivers Shire Council & The Warehouse Group (Australia) Pty Ltd, unreported (Planning & Environment Court, Britton SC DCJ, 14 November 2003, 1627/2003).
Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 241
Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd [2003] 123 LGERA 341; on appeal [2003] NSWCA 270;

Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 AT 73, 75, 78;
ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd.R. 352

COUNSEL:

Mr D Gore QC and Mr J Houston for the applicant in each matter

Mr C Hughes SC for the second respondent in each matter

SOLICITORS:

Mallesons Stephen Jaques for the applicants in each matter
King & Co for the first respondent in each matter
Deacons for the second respondent in each…

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: [2004] QPEC 15
Decision Date: 7 May 2004

CaseChat Overview and Summary

Woolworths Limited (the plaintiff) initiated proceedings against Caboolture Shire Council (the defendant) in the Queensland Court of Appeal, seeking to challenge a decision made by the Land Court. The dispute centred on the classification of certain premises, specifically whether they were being used as retail showrooms or shops. Woolworths argued that their use of the premises was permissible and not in contravention of the applicable town planning scheme, while the council contended that the premises were being used as shops, which required a specific use permit, and sought an injunction to halt such use.

The primary legal issues the court had to address were whether the premises in question were being used as retail showrooms or shops, and whether Woolworths' use of the premises constituted an unauthorised use under the Caboolture Shire Planning Scheme. Additionally, the court needed to determine whether an injunction should be granted to prevent Woolworths from continuing to use the premises in the manner alleged by the council.

The court examined the evidence presented by both parties and considered the nature of the activities taking place on the premises. The court concluded that the premises were being used as retail showrooms rather than as shops, as the majority of the floor space was not used for the sale of goods on a commercial basis. Consequently, the court found that the council's decision to issue an injunction was not justified, and it was not in the interests of justice to grant an injunction against Woolworths. The appeal was therefore upheld, and the decision of the Land Court was set aside.

The Queensland Court of Appeal ordered that the council's decision to issue an injunction against Woolworths be quashed and that the matter be remitted to the Land Court for reconsideration in light of the court's findings. The court also noted that the council had an opportunity to adduce further evidence if it wished to pursue the matter further.

Orders