Mudie v Gainriver P/L[2000] QCA 260

McPHERSON JA:  This matter is a sequel to a decision of the Court of Appeal that was decided, and in respect of which judgment was given, in July last year.

It arose out of a subdivision that was being carried out by the first respondent Gainriver Pty Ltd which was completed a good many years ago. However, although completed, in the course of constructing roads and works associated with the subdivision the developer Gainriver constructed a roadway from the main road that was some three metres above the level of the land nearby, and also built a boulder wall to support that road.

It was that that was the subject of the proceedings in this Court on appeal from the Planning and Environment Court. This Court, in dealing with that matter, made an order that declared that Gainriver had contravened a section of the planning scheme for the Shire of Gatton because it constructed the works without first obtaining the approval of the Gatton Shire Council, and that that was an offence under section 2.23(1)(a) of the Local Government (Planning and Environment) Act 1990.

The Court also held that in completing the construction without having its plans and specifications approved by the Gatton Shire Council an offence had been committed under those provisions. In the end, it was declared that the construction of the two boulder walls constituted a public nuisance and ordered that the matter be remitted to the Planning and Environment Court to consider whether, in the light of those declarations, an order should be made under section 2.24(5)(b) of the Local Government (Planning and Environment) Act 1990.

The matter went back to the Planning and Environment Court on 27 March 2000. There was a hearing on that date before his Honour Judge Brabazon who is the Judge who heard the original proceedings which led to the appeal decided by this Court in July 1999.

At that hearing on 27 March 2000 some reliance was placed by Gainriver on a decision of the second respondent, a Mr Schumacher, who is the chief executive officer of the Shire Council. He had, it seems, given a decision contained in a letter of 22 March 2000 to the effect that the Council favoured the road remaining where it was.

There was a challenge of some kind to that decision the details of which are not completely clear to us because we do not have all the material before us. However that may be, on 5 April 2000 the applicant Mrs Mudie instituted proceedings for an order to review that decision of Mr Schumacher effectively on the basis that it was void.

The matter came before Mr Justice Muir on 4 May 2000, on which occasion he dismissed the application for a declaration that that decision of Mr Schumacher ought to be reviewed. The reason for his doing so was, as I understand it, essentially that no one now, that is at that hearing, relied on the decision of Mr Schumacher of 22 March 2000. The reason why that attitude was taken up is that the Council in the meantime on 2 May 2000, which was only two days before the application to review was heard and dismissed, resolved, with some qualifications, that the roadway and the boulder wall (or at any rate the roadway) should remain where it was.

The application before us now is for leave to appeal against that decision of Mr Justice Muir. Now, when the matter came before us and after a good deal of discussion, it emerged that no one objected to the decision of Mr Schumacher being declared void.

From that point, the question really developed into an argument about the costs of proceedings below. So far as Gainriver is concerned (who might, on one view, have been thought to be the principal target for an order for costs in these proceedings) Mr Philp, who appears on behalf of that respondent, submitted that he had an agreement with the applicant Mrs Mudie that these proceedings should be dismissed with no order as to costs.

Mr Myers, who appears for Mrs Mudie, agrees that that is the case. The result is that there is no real possibility of making an order for costs or otherwise against Gainriver. That leaves the Council before us as the only party that may at one time have had an interest in this decision.

All matters considered I have reached the conclusion that the proper way of disposing of these proceedings is as follows. There should be leave to appeal against the decisions of Mr Justice Muir dismissing the application to review the decision of the second respondent purporting to have been given on 22 March 2000, and ordering that the application for judicial review in respect of that decision of 22 March 2000 be struck out.

I would order that the appeals against those two orders be allowed. Those orders and the orders for costs in relation thereto should, as against the second respondent, be set aside. There should be no order as to the costs of those applications in the Court below. As to the costs of this application in this Court, I would order that the second respondent pay half of the applicant's costs of and incidental to the application for leave to appeal against the orders that we have set aside.  Otherwise, the application for leave to appeal is refused.

DAVIES JA:  Both respondents having conceded that the decision of the second respondent should be set aside I agree with the principal orders proposed by Mr Justice McPherson and I would not dissent from his proposed orders.

THOMAS JA:  I agree with the reasons given by Mr Justice McPherson and with the orders which he proposes.

DAVIES JA:  The orders are as indicated by Mr Justice McPherson.

MR PHILP:  Your Honours, before we go may I just clarify those orders as to costs are they in respect of Mr Murphy's client the second respondent only or do they apply to mine?

McPHERSON JA:  Well, what is your position?  Your position is that you have agreed on something. Our order does not attempt to affect your position because you have an agreement as to that and the orders that are referred to are orders with respect to the council which is the second respondent or not the council Mr Schumacher.

MR PHILP:  Thank you, your Honour.

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