Woolworths Ltd v Maryborough CC - [2005] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION:

Woolworths Ltd v Maryborough CC & Anor [2005] QCA 62

PARTIES:

WOOLWORTHS LTD ACN 000 014 675
(appellant/first respondent)
v
MARYBOROUGH CITY COUNCIL
(first respondent/second respondent)
ROKAY PTY LTD ACN 098 337 690
(second respondent/applicant)

FILE NO/S:

Appeal No 11375 of 2004
P & E Appeal No 1480 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Civil

ORIGINATING COURT:

Planning & Environment Court at Maryborough

DELIVERED ON:

11 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2005

JUDGES:

Williams and Keane JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application dismissed
2.    Applicant to pay the first respondent's costs of the       application to be assessed
3.    No order in relation to the second respondent's costs       of the application

CATCHWORDS:

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - SUPREME COURT - OTHER MATTERS - first respondent challenged approval for material change of use of premises given to applicant by second respondent in Planning and Environment Court - first respondent successful in Planning and Environment Court - applicant has lodged application for leave to appeal with Court of Appeal - applicant seeks order under s 4.1.59(2) Integrated Planning Act 1997 (Qld) to allow continued selling of goods pursuant to approval for material change of use - where applicant had sold goods contrary to zoning prior to granting of approval for material change of use - whether the Court has the jurisdiction to make an order under s 4.1.59(2) when an application for leave to appeal has been filed but not heard - whether the Court has the power to grant the order where an applicant seeks to "continue", rather than "start" a development - whether in its discretion the Court should grant the order sought when the parties commenced trading without an approval with their eyes open to the risks

Integrated Planning Act 1997 (Qld), s 4.1.56, s 4.1.59, s 4.3.1

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, cited
Beecham Group Plcv Colgate-Palmolive Pty Ltd [2004] FCA 1335; (2004) 64 IPR 45, cited
Bell v Bay-Jespersen [2004] QCA 68; [2004] 2 Qd R 235, applied
Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543, cited
Optus Mobile Ltd v Canada Bay City Council [2004] NSWCA 446; CA No 40977 of 2004, 6 December 2004, applied
Stone v Copperform Pty Ltd [2004] QCA 7; [2002] 1 Qd R 106, applied

COUNSEL:

C L Hughes SC, with M Williamson, for the applicant
J D Houston for the first respondent
R S Litster for the second respondent

SOLICITORS:

Deacons for the applicant
Mallesons Stephen Jaques for the first respondent
Corser Sheldon & Gordon (Maryborough) for the second respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and I agree with all that he…

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: [2005] QCA 62
Decision Date: 11 March 2005

CaseChat Overview and Summary

Woolworths Ltd sought an order from the Supreme Court of Queensland allowing it to continue selling goods from premises in Maryborough, despite the Maryborough City Council (MCC) having previously challenged and successfully overturned the approval for a material change of use of the premises. MCC had argued that Woolworths's operations contravened zoning laws. Woolworths had operated from the premises without the requisite approval, and sought to continue doing so while its appeal against the Planning and Environment Court's decision was pending. The legal issues before the Court were whether it had the jurisdiction to make an order under section 4.1.59(2) of the Integrated Planning Act 1997 (Qld) in the context of an appeal pending before the Court of Appeal, and whether it had the power to grant the order for "continuing" rather than "starting" a development. The Court found that it did not have the jurisdiction to make the order while the appeal was pending, and that it would not grant the order in any event because Woolworths had started trading without an approval with knowledge of the risks. The Court dismissed the application, ordered Woolworths to pay MCC's costs, and made no order as to MCC's costs.

Orders

Orders of the court

1. Application dismissed

2. Applicant to pay the first respondent's costs of the application to be assessed

3. No order in relation to the second respondent's costs of the application

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:	Woolworths Ltd v Maryborough CC & Anor [2005] QCA 62
PARTIES:	WOOLWORTHS LTD ACN 000 014 675 (appellant/first respondent) v MARYBOROUGH CITY COUNCIL (first respondent/second respondent) ROKAY PTY LTD ACN 098 337 690 (second respondent/applicant)
FILE NO/S:	Appeal No 11375 of 2004 P & E Appeal No 1480 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application - Civil
ORIGINATING COURT:	Planning & Environment Court at Maryborough
DELIVERED ON:	11 March 2005
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2005
JUDGES:	Williams and Keane JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application dismissed 2. Applicant to pay the first respondent's costs of the application to be assessed 3. No order in relation to the second respondent's costs of the application
CATCHWORDS:	ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - SUPREME COURT - OTHER MATTERS - first respondent challenged approval for material change of use of premises given to applicant by second respondent in Planning and Environment Court - first respondent successful in Planning and Environment Court - applicant has lodged application for leave to appeal with Court of Appeal - applicant seeks order under s 4.1.59(2) Integrated Planning Act 1997 (Qld) to allow continued selling of goods pursuant to approval for material change of use - where applicant had sold goods contrary to zoning prior to granting of approval for material change of use - whether the Court has the jurisdiction to make an order under s 4.1.59(2) when an application for leave to appeal has been filed but not heard - whether the Court has the power to grant the order where an applicant seeks to "continue", rather than "start" a development - whether in its discretion the Court should grant the order sought when the parties commenced trading without an approval with their eyes open to the risks Integrated Planning Act 1997 (Qld), s 4.1.56, s 4.1.59, s 4.3.1 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, cited Beecham Group Plcv Colgate-Palmolive Pty Ltd [2004] FCA 1335; (2004) 64 IPR 45, cited Bell v Bay-Jespersen [2004] QCA 68; [2004] 2 Qd R 235, applied Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543, cited Optus Mobile Ltd v Canada Bay City Council [2004] NSWCA 446; CA No 40977 of 2004, 6 December 2004, applied Stone v Copperform Pty Ltd [2004] QCA 7; [2002] 1 Qd R 106, applied
COUNSEL:	C L Hughes SC, with M Williamson, for the applicant J D Houston for the first respondent R S Litster for the second respondent
SOLICITORS:	Deacons for the applicant Mallesons Stephen Jaques for the first respondent Corser Sheldon & Gordon (Maryborough) for the second respondent