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
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
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
Section 680F of the SPA had no relevance to the matter.
Mr Wood's amended application failed to meet in the most
fundamental way, the requirements of sections 481 and 482 of the
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.
The Court had no jurisdiction to make the declarations or grant
the relief sought by Mr Wood.
Redland City Council was entitled to costs under section 457 of
the SPA, because:
costs were appropriate in the circumstances to indemnify the
successful party, which had incurred costs to defend proceedings
prosecuted against it; and
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
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The article discusses the legislative requirements and then provides some comments on common mistakes made by caveators.
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