Lockyer Valley Regional Council v Westlink Pty Ltd
[2012] QCA 2
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- Unreported Judgment
- Appeal Determined (QCA)
- Lockyer Valley Regional Council v Westlink Pty Ltd[2012] QCA 2
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Lockyer Valley Regional Council v Westlink Pty Ltd[2012] QCA 2
Lockyer Valley Regional Council v Westlink Pty Ltd[2012] QCA 2
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | P & E Appeal No 2606 of 2010 |
Court of Appeal | |
PROCEEDING: | Application for Leave Sustainable Planning Act – Further Order |
ORIGINATING COURT: | |
DELIVERED ON: | Judgment delivered 9 December 2011 Further Order delivered 3 February 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Fraser and White JJA and Douglas J Judgment of the Court |
FURTHER ORDER: | Pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld), an indemnity certificate in respect of the appeal is granted to the first respondent. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the applicant succeeded on its appeal on the basis that the primary judge failed to carry out a statutory task – where the first respondent submitted below that the statutory task had to be conducted – whether an indemnity certificate should be granted Appeal Costs Fund Act 1973 (Qld), s 15(1) |
COUNSEL: | No appearance by the applicant, the applicant’s submissions were heard on the papers No appearance by the first respondent, the first respondent’s submissions were heard on the papers No appearance for the second to seventh respondents |
SOLICITORS: | Connor O'Meara Solicitors for the applicant McInnes Wilson Lawyers for the first respondent No appearance for the second to seventh respondents |
[1] THE COURT: In an earlier decision in this matter, Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2011] QCA 358, the Court allowed the applicant Council’s appeal from a decision of the Planning and Environment Court which had allowed an appeal from the Council’s decision to refuse the first respondent’s application for a development permit. The Court held that the primary judge erred in law in deciding that the use proposed by the first respondent did not conflict with the Council’s Planning Scheme, and that his Honour should have considered whether there were sufficient grounds to justify approval of the application despite the conflict.
[2] The first respondent has now applied for an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld). Section 15(1) of the Appeal Costs Fund Act confers a discretion to grant a respondent an indemnity certificate in respect of the appeal where the appeal succeeds on a question of law. The jurisdiction is therefore enlivened in this case.
[3] In the circumstances of this case, the discretion to grant a certificate should be exercised because, as the first respondent pointed out, it had submitted in the Planning and Environment Court that there was a conflict, albeit of a technical nature, which required the primary judge to consider whether there were “sufficient grounds to justify the decision despite the conflict” in terms of s 3.5.14(2) of the Integrated Planning Act 1997 (Qld). It was the primary judge’s failure to carry out that statutory task which necessitated the appeal and the order remitting the matter for further consideration by the primary judge. The case for a certificate is therefore an unusually strong one. There is no apparent discretionary consideration opposed to the grant of the certificate.
[4] Pursuant to s 15(1) of the Appeal Costs Fund Act, the Court orders that an indemnity certificate in respect of the appeal be granted to the first respondent.