(Muir JA, Margaret Wilson AJA and North J - 16 September
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Lawfulness of use – land used for the purpose of processing, cooking and storing crabs for sale – applicant made a development application to the respondent Council for a development permit authorising the use of his land for "Home Business" purposes – development application refused – applicant's appeal to the Planning and Environment Court was dismissed – respondent Council applied to the Planning and Environment Court for a declaration that the use of the land constituted a development offence and an injunction restraining the applicant from unlawfully using his land – the primary judge allowed the respondent's application – whether the primary judge erred in failing to consider whether the appeal was supported by public interest "grounds" as contained in Schedule 3 of the Sustainable Planning Act 2009 (Qld) – whether the primary judge erred in declaring that the use was unlawful in the absence of a development permit – whether the applications for leave to appeal should be granted – ss. 326(1)(b), 329(1)(b) 498, 582 and 604 Sustainable Planning Act 2009
Facts: Mr Wood operated a home business from his residence for the processing, cooking and storing of seafood (crabs) for sale, for which there was an existing development permit that lapsed on 30 March 2005. The Council applied to the Planning and Environment Court for a declaration that the use of land constituted a development offence, and an injunction restraining Mr Wood from using the land for that purpose. Mr Wood made a development application to the Council for a "Home Business", which was refused by the Council. Mr Wood then appealed the refusal to the Planning and Environment Court.
The Planning and Environment Court heard Mr Wood's appeal
against the refusal of the development application together with
the Council's declaratory proceeding. The primary judge
dismissed Mr Wood's appeal and acceded to the Council's
Mr Wood applied for leave to appeal against each decision. CA 3966 of 2011 concerned the dismissal of Mr Wood's appeal against the refusal of his development application, and CA 3967 of 2011 concerned the orders made by the Planning and Environment Court on the Council's application for declarations.
The proposed notice of appeal in CA 3966 of 2011 identified as grounds "2009 Urban planning Act", and sought an order that "2009 Urban planning Act to be amended". In CA 3967, the grounds of appeal identified by Mr Wood were "Primary grounds of income", and the orders sought were "Inquiry into the scandal of why ID C2881 was cancel (sic) by Redland Shire Council".
Mr Wood argued, in both the primary Court and the Court of Appeal, that the closure of his business would cause financial hardship to himself and his son-in-law. He also raised concern about the Council's Counsel providing further written submissions to the primary Judge after the conclusion of the hearing in the Planning and Environment Court, which made reference to the definition of "grounds" in Schedule 3 of the Sustainable Planning Act 2009 (SPA) to warrant approval of a development application despite the conflicts with the planning scheme.
In the Planning and Environment Court, the primary Judge had mistakenly been referred to section 578 of the SPA, which resulted in the Judge's declaration concluding with the words "... in that it involves assessable development for which no effective development permit for material change of use has been issued, and the use is not otherwise lawful".
Decision: The Court held that:
- No error of law was identified in the applications for leave to appeal, nor the proposed notices of appeal, nor in Mr Wood's outline of argument.
- The Court can receive further submissions at any time provided that the way in which that is done is not productive of procedural unfairness. There was no procedural unfairness resulting from the communication with the Court. The Applicant was given every opportunity to present his case and he was treated fairly.
- "Public interest" is a broad concept. Whether the consequences of the closure of Mr Wood's business could provide sufficient "grounds" to justify any conflict with the planning scheme requires a careful investigation of the relevant facts. No such investigation was required or undertaken, because neither Mr Wood's development application nor his appeal were based on public interest grounds. The primary judge did not err in failing to consider whether the appeal could be supported on such grounds.
- The substance of the declaration made by the primary Judge was to the effect that the use of the land for the purposes specified was unlawful. That remained appropriate and was amply justified by the evidence which demonstrated a breach of section 582 of the SPA. In the circumstances, it was desirable that the concluding words of the declaration be deleted.
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