Cameron & Partners v Council of the Shire of Noosa [1992] QPEC 1

.>, ) ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND BETWEEN: Application No. 6 of 1991 P. & E. 166 of 1991 PEA 13 of 1991 IAN MILNE DIXON CAMERON & PARTNERS Applicants THE COUNCIL OF THE SHIRE OF NOOSA Respondent REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. I /• I Delivered the ~ -1 ~"-- day of This hearing involved three different matters which were for the sake of convenience heard together. P. & E. 166 of 1991 seeks Orders that: application to subdivide No. 2308 be allowed to proceed as part of Court Order 46, 1989, conditions 1 . 1 2 ( 1 ) ( 2 ) ( 3 ) , 1 . 1 3 and 1 . 1 4 ; a ruling that the majority of the Noosa Shire Council are in contempt of Local Government Order 46, November 1989; a ruling that the Respondent Council has no power to reject any of the conditions of Court Order 46 without the consent of the Appellants. Application 6 of 1991 seeks a "Declaration under 2. 24 sub-section 3 ( b) of Local Government Act 1990 or an Order under 2.23(b)(ii) of Local Government and Planning Act". It also seeks a ruling from the Court that a majority of the Noosa Shire Council are in contempt of Court Order 46, for failing to prepare and sign the Rezoning Deed s.14.01 in preparation for Appellant and partners' signature. During the -- 1 of 4 -- 2 hearing I gave leave to Mr. Cameron to add a further paragraph • seeking an order that the Noosa Shire Council prepare the Rezoning Deed for signature by the parties. Application PEA 13 of 1991 states: "a Declaration or Order is sought under s.2.24(3) (b) against the Noosa Shire Council. That the Council's motion carried on 8th November declaring our application to be at an end is invalid. Also that the Council motion carried on 26th November 1991 not to rescind this motion is also invalid". This Application also seeks an order that the Noosa Council is in contempt of Local Government Court Order 46. It also states: "We ask the Court within the terms and conditions of Court Order 46 to order the Council to rescind their motion of the 8th November 1990, accept our Plan Survey and prepare the Deed for both parties to sign." These matters came on for hearing on 1 November 1991, and were adjourned in order to enable the Respondent Shire to consider its legal position concerning the motion declaring the rezoning application to be at an end. During the period of adjournment, Mr. Cameron filed a further affidavit on 1 0 December 1991 and Wakefield Robert Sykes filed an affidavit on the same day, annexed to which is a copy of minutes of a special meeting of the Respondent held on 26 November 1991. Counsel for the Respondent raised the threshold question of the jurisdiction of the Court to make the Declarations and Orders sought by the Appellants. The issue of the jurisdiction of this Court must be decided with a recognition that it is a statutory Court, and -- 2 of 4 -- 3 that rezoning is a part of the statutory process set out in the Local Government Act (1936) and the Local Government (Planning and Environment) Act. In this respect, this Court is unlike other Courts which may or may not be able to decide the merits of the Applications filed by the Appellants. To decide the Court's jurisdiction to consider the Applications before it, it is first necessary to decide which Act governs the Applications. The relevant sub-section is 8.10(9)(a) of the Local Government {Planning and Environment) Act Amendment Act (1991), which is as follows:- "Where, prior to the commencement of this Act, an application of any kind to which this Act refers was duly made to a Local Authority, but was not finally approved by the Local Authority or the Governor in Council, ( as the case may be, prior to the commencement of this Act) the application is to be dealt with as if this Act had not commenced." The effect of this sub-section is that because Appli- cation 46 of 1989 has not been finally approved by the Local Authority or the Governor in Council, then it is to be dealt with as if the 1990 Act had not commenced. It is accordingly governed by the Local Government Act ( 193 6) ( as amended) . Accordingly, any references toss. 2.23 and 2.24 of the Local Government (Planning and Environment) Act 1990 are of no assistance because that Act does not apply. The power of the Court to make the Declarations and Orders sought by the Appellants is not given to the Court under the Local Government Act (1936) (as amended). This lack of jurisdiction applies equally to the Orders concerning rejection of conditions of Court Order 46, application to -- 3 of 4 -- subdivide No. Rezoning Deed, 1989 and the November 1991 . these matters, entertain them. 4 2308 proceeding, failure to prepare and sign a contempt of Court Orders made in Appeal 46 of Council motions of 8 November 1990 and 26 Whatever may be the merits of any or all of this Court does not have jurisdiction to I accordingly dismiss each of the Applications. -- 4 of 4 --