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Fletch Pty Ltd v. Gladstone Regional Council & Anor.

Country/Territory
Australia
Type of court
Others
Date
Jul 29, 2010
Source
UNEP, InforMEA
Court name
Planning and Environment Court of Queensland
Seat of court
Brisbane
Judge
Robin, Q.C.
Reference number
[2010] QPEC 63
Language
English
Subject
Land & soil, Legal questions
Keyword
Constitutional law Land-use planning
Abstract
The Gladstone Regional Council (Council) refused the Appellant’s development application for reconfiguring a lot (boundary realignment) and a material change of use for visitor accommodation (including ancillary manager’s office/residence and shop) and a caretaker’s residence. The Appellant appealed to the Planning and Environment Court against the Council’s decision to refuse the development application. The Appellant’s interlocutory application sought the Court to grant a full approval of the development application; or alternatively, move the proceeding to a court of competent jurisdiction pursuant to the notice given under section 78B (Notice to Attorneys-General) of the Judiciary Act 1903 (Cth). Whilst the Council requested his Honour to make directions requiring the Appellant to provide particulars to clarify its contentions and adjourn the application to be heard at a later date, the Judge considered it appropriate to deal with the constitutional issues purportedly contended by the Appellant then, to limit the parties’ additional trouble and cost. In his view, the Appellant’s principal contention was that the planning controls administered by the Council were unconstitutional, as they were inconsistent with the Appellant’s rights as a fee simple owner. He noted the contention was of a kind which would be regarded as one determined against “the common law rights or interests of a land owner by Bone v Mothershaw [2003] 2 Qd R 600” and in that regard, he observed that the Court had on a number of occasions dealt with arguments of a similar nature and had dismissed them. On that basis, his Honour consistently concluded that the Appellant’s contention was unsustainable. The failure of the referendum about local government does not generate “a matter arising under the Constitution as involving its interpretation for purposes of s 78B” and “what local governments such as the respondent Council do is done as the relevant emanation of State sovereignty”. Accordingly, the Judge concluded that there was no constitutional issue for the purpose of section 78B (Notice to Attorneys-General) of the Judiciary Act 1903 (Cth) and that no opportunity should be offered to the Appellant to clarify or refine its points of contention. His Honour noted that if in fact a local government had no say in land use matters, given that the P&E Court presumed the local government’s role (as an assessment manager) in those matters, then there would be no point in the P&E Court to grant a development approval. In his opinion, it would be absurd to assert that a local government was bound to rubber stamp a development application without any enquiry. He dismissed the application accordingly. In the circumstances, the Council sought costs against the Appellant. Having regard to the fact that the Council had previously notified the Appellant the likelihood of it seeking costs against the Appellant, his Honour considered that it was appropriate to order the Appellant to pay the Council’s costs of the application.
Full text
COU-156793.pdf