Ecovale Pty Ltd, Re[1999] QCA 67

COURT OF APPEAL

McMURDO P

PINCUS JA

WHITE J

Appeal No 871 of 1999 

IN THE MATTER OF THE INTEGRATED PLANNING ACT 1997 

and 

IN THE MATTER OF THE APPLICATION OF ECOVALE PTY LTD

(ACN 003 855 061)

BRISBANE

DATE 15/03/99

JUDGMENT

PINCUS JA:  This is an application by Ecovale Pty Ltd for leave to appeal from a judgment of his Honour Judge Quirk given in the Planning and Environment Court on 18 December 1998.  The decision which it is sought to attack was one which refused an application made under the Integrated Planning Act 1997 for a declaration concerning an application for a material change of use.

The application for a declaration sought to establish that the application for a material change of use was defective because it did not relate to such land as should have been included in it.  The application in fact related to pieces of land which were referred to as Lot 2 on registered plan 213341 and Lot 810 on plan S311868.  To the north of those two lots there is a Lot 1 on registered plan 132085.  The applicant, below and here, relied upon the circumstance that there is in fact access from Lot 1, as I will call it for short, to Lot 810 which is one of the blocks subject to the application, and upon the circumstance that the application which was made for material change of use indicated that one of the ways to get onto the subject land was across Lot 1.  Putting that more simply, part of the access relied on, the applicant would say, was access across Lot 1.

The applicant below sought to persuade his Honour Judge Quirk that this circumstance was fatal to the validity of the application, on the basis of the High Court's decision in Pioneer Concrete (Queensland) Pty Ltd v. Brisbane City Council and Others (1980) 145 CLR 485.  The contention which was put forward was, as I understood it, that the Pioneer case or perhaps an extension of the authority of that case establishes the proposition that an application for material change of use must include within it any piece of land over which access in fact may be gained to the land sought to be used; and that is so especially if, or perhaps only if, the application for the material change of use relies upon the access to which I have just referred.

In answer to this contention made by Mr Hinson SC on behalf of the applicant, Mr Lyons QC, who led Mr Needham for the respondent, argued that the Pioneer case does not establish the proposition for which Mr Hinson contends but merely a lesser proposition, which is that land which is necessary to obtain access to the land proposed to be developed must be included within the application.  Mr Lyons argued that there is no authority extending the Pioneer principle in the direction sought to be put forward by Mr Hinson and that Mr Hinson did not clearly explain why it was that the extension should be made.

Another issue which was raised was the question of standing.  Mr Lyons argued that there was nothing before the court to indicate that the applicant, Ecovale, had any interest in the outcome of the matter and that this was a point which would justify the Court exercising its discretion to refuse leave to appeal.

In answer to that, Mr Hinson pointed out that section 4.1.21 of the Integrated Planning Act 1997 does not in terms require that an applicant for a declaration have any interest in the matter.  It is unnecessary, it seems to me, to determine whether or not standing is required under section 4.1.21.  The section simply does not say either way, whereas in contrast, the provision which was in issue in NRMCA (Queensland) Limited v. Andrew [1993] 2 QdR 706 indicated that an application of the kind there in question could be made even where the applicant had no right in question - no right in which it was interested.

Whether or not it is necessary that an applicant in the position of Mr Hinson's client have standing in order to obtain a declaration, it seems clear that there would be a discretion to refuse a declaration if it appeared from the material that the point was academic or, more specifically, if there was nothing to suggest that the applicant had any interest in the point.

Mr Lyons urges upon us the view that since we have a discretion whether or not to grant leave to appeal (and that is undoubtedly so) we should be inclined not to exercise that discretion in a case where the applicant for leave does not demonstrate that the decision of the point matters to it.  That contention appeals to me.  It seems clear that a legitimate consideration for this Court to take into account when determining whether or not to grant leave to appeal is the interest of the applicant in the point sought to be raised.  Here it is not shown that the applicant has any interest of a material or, indeed, a sentimental kind and for all one knows it has merely an academic interest.

The way the matter appears to me, then, is that as Mr Lyons contends, the Pioneer case does not appear to cover the point which is raised by Mr Hinson on behalf of the applicant and, therefore, one could not assert that the decision of Judge Quirk was contrary to that view, that is, contrary to the view which was adopted in Pioneer.  Putting it at the lowest, Judge Quirk's decision is not shown, and does not appear on the face of it, to be incorrect.

In those circumstances, where the applicant seems to have no interest in resolution of a point, so far as the material shows, my inclination would be to refuse leave on those grounds:  firstly, that the decision below does not appear on the face of it to be incorrect, and that the applicant has no interest in resolution of the question which is sought to be raised, so far as the material before us shows.  On those grounds, I would refuse the application with costs.

THE PRESIDENT:  Although this application is to appeal from a decision of the Planning and Environment Court on an error of law under section 4.1.56(1)(a) of the Integrated Planning Act 1997, I agree that in this case leave to appeal should not be given to the applicant for the reasons stated by Justice of Appeal Pincus.

WHITE J:  I agree that leave should be refused in this matter, with costs, for the reasons which Justice Pincus has just given.

THE PRESIDENT:  The order is the application for leave to appeal is dismissed with costs.