Douglas Shire Council v Fabcot Pty Ltd & Ors [1999] QCA 1

COURT OF APPEAL [1999] QCA 001 McMURDO P THOMAS JA MACKENZIE J Appeal No 11051 of 1998 DOUGLAS SHIRE COUNCIL Applicant and FABCOT PTY LTD First Respondent and D G ROBERTSON HOLDINGS PTY LTD Second Respondent and THE RAINFOREST HABITAT PTY LTD Third Respondent Appeal No 11052 of 1998 D G ROBERTSON HOLDINGS PTY LTD Applicant and DOUGLAS SHIRE COUNCIL Second Respondent and FABCOT PTY LTD First Respondent and THE RAINFOREST HABITAT PTY LTD Third Respondent BRISBANE ..DATE 02/02/99 JUDGMENT -- 1 of 2 -- 020299 T1/SJ3 M/T COA2/99 2 JUDGMENT THE PRESIDENT: It is convenient to deal with these applications together. They are applications for leave to appeal from a judgment of the Planning and Environment Court declaring that under the Douglas Shire Planning Scheme a supermarket was prohibited development on the land the subject of this application. Under clause 4.1.56 of the Integrated Planning Act 1997 an appeal lies to this Court where there has been an error or mistake in law below but only with leave of this Court or a Judge of this Court. Counsel for Fabcot Pty Ltd, the successful applicant before the Planning and Environment Court and the primary respondent to these two appeals do not contend that there is any ground for refusing leave to appeal and have informed the Court that the parties would agree to a consent order granting leave to appeal if that were acceptable to this Court. As the Act requires leave of this Court or a Judge of this Court a consent order cannot be appropriate. Affidavit material filed on behalf of the Shire of Douglas states that the issue of whether a supermarket may be constructed on the subject land is very important to that applicant in respect of future town planning decisions to be made by it. The existence of land zoned or otherwise available to be used for a supermarket is significant in the exercise of discretion by the applicant in respect of other town planning matters and the issue affects the rights, obligations and duties of the Douglas Shire. Affidavit material filed on behalf of the applicant D G Robertson Holdings Pty Ltd states that the issue of the proper construction of the planning scheme for the Shire of Douglas is an issue of importance to it as it wishes to construct a shopping centre including a supermarket on the subject land and the issue affects its rights. The meaning of the term "shopping centre" in the zone description contained within the Douglas Shire Planning Scheme and whether the term "shopping centre" includes a supermarket is a matter of some importance not only to the parties but to the wider community. It is a matter of law. The term "shopping centre" is not defined in the planning scheme. In these circumstances it is my view that leave to appeal should be granted in each case. THOMAS JA: I agree. MACKENZIE J: I agree. THE PRESIDENT: The order in each case is that leave to appeal is granted. The costs of these applications are reserved. ----- -- 2 of 2 --