Application for declaratory relief – Court's jurisdiction to make declarations – Where an originating application was doomed to fail – where incorrect institution of proceedings – whether leave should be granted for failure to file an appeal within sufficient time - costs

Facts: This was the hearing of an application brought by the Applicant, Redland City Council, to have the Respondents (Mr Wood's) originating application dismissed with costs.

Mr Wood was a fisherman who operated a commercial business from his residential premises at Cleveland, which included the cooking, storage and sale of seafood. Those activities had been permitted under a town planning consent permit dated 22 September 1997. However, that permit contained a sunset clause which had passed, causing the approval to lapse. Mr Wood's subsequent attempts to obtain a new development approval for his commercial operations (of which there had been many) were unsuccessful.

The originating application brought by Mr Wood sought a declaration that the use of his premises for the purposes of processing, cooking, storage and transport to the point of sale of seafood and a development permit for a material change of use be granted. His application sought relief under section 680F of the Sustainable Planning Act 2009 (SPA). That section was concerned with the registration of uses which generate emissions likely to affect urban amenity. Upon discovering the limitations of section 680F to achieve the desired declarations, Mr Wood sought to amend his originating application, by instead seeking relief under sections 481 and 482 of the SPA. Those sections related to the rules for making an appeal to the Court.

Redland City Council submitted that the originating applications, in all forms, were doomed to fail. It sought orders that Mr Wood's application be dismissed with costs.

Decision: The Court held, in dismissing Mr Wood's originating application and awarding costs to Redland City Council:

  1. Section 680F of the SPA had no relevance to the matter.
  2. Mr Wood's amended application failed to meet in the most fundamental way, the requirements of sections 481 and 482 of the SPA.
  3. The Court's leave was required to prosecute a notice of appeal and no meaningful attempt was made to convince the Court that, good grounds might exist to justify leave being granted.
  4. The Court had no jurisdiction to make the declarations or grant the relief sought by Mr Wood.
  5. Redland City Council was entitled to costs under section 457 of the SPA, because:
    1. costs were appropriate in the circumstances to indemnify the successful party, which had incurred costs to defend proceedings prosecuted against it; and
    2. Redland Shire Council wrote to the Respondent prior to the hearing advising him that his application was doomed to fail and offering to bear its own costs, if he discontinued his application.

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