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[2005] QCA 62
procedural. Application dismissed. The applicant was ordered to pay the first respondent's costs of the application, to be assessed. No order was made in relation to the second respondent's costs.
No linked legislation citations have been extracted yet.
Rokay wanted the Court of Appeal to let its tenant keep selling food and groceries while Rokay sought permission to appeal a decision that had removed the approval for those sales. The Court said it could not make an order under s 4.1.59(2) until leave to appeal had actually been granted, because before then there was no appeal before it. The Court also expressed views suggesting the section was aimed at allowing development to begin, not legalising ongoing unlawful use, and that knowingly proceeding without approval weakened the claimed hardship. Those additional observations did not need to decide the application.
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2,357 words · generated 02/10/2026
The dispute concerned a retail site in Ferry Street, Maryborough, owned by Rokay Pty Ltd and leased to The Warehouse Group Limited. The Warehouse Group operated a retail outlet there. Woolworths Ltd challenged the Council's approval for the sale of food and groceries at the site, and succeeded in the Planning and Environment Court.
The history of the use mattered to the Court's discussion. In 2000, the Council had approved a material change of use for a showroom. Under the then applicable planning scheme, “showroom” specifically excluded premises offering food and groceries for sale, apart from fresh fruit and vegetables ([13]). In December 2002, the Council told Rokay's representatives that food and grocery sales were not in accordance with the existing development permit. When Rokay applied for approval of a “shop” use in May 2003, the Council advised that the approval process had to be completed before that use began ([14]).
Despite those communications, the Warehouse Group began selling food and groceries on or about 12 June 2003 ([15]). The Council later issued an approval and then a negotiated decision notice. Woolworths appealed. On 17 December 2004, the Planning and Environment Court allowed Woolworths' appeal, setting aside the Council's approval for the relevant use ([16]-[17]).
Rokay filed an application for leave to appeal against the Planning and Environment Court decision. While that application remained undecided, Rokay applied under s 4.1.59(2) of the Integrated Planning Act 1997 (Qld) (IPA) for permission for the food and grocery sales to continue. Its application was not itself the leave application: it was a separate request for interim permission pending the decision on leave ([2]-[3], [17]).
The Court of Appeal dismissed the application. Keane JA's central reason was that leave had not been granted, so there was no appeal on foot and s 4.1.59(2) was not available. Williams JA and Douglas J agreed with Keane JA's reasons and the orders ([1], [29]). Rokay was ordered to pay Woolworths' assessed costs of the application. There was no order about the Council's costs ([28]).
The Court began with the statutory language. Section 4.1.59(1) provided that if a decision on an appeal under the relevant division was appealed under the next division, development must not be started until that appeal was decided or withdrawn. Section 4.1.59(2) created an exception: the Court of Appeal could allow development, or part of it, to start before the appeal was decided if satisfied that doing so would not affect the appeal's outcome ([4]).
The first issue was whether there was an “appeal before” the Court at all. Under s 4.1.56, an appeal was available only on limited grounds and only with leave. Keane JA relied on the established approach, in other statutory contexts, that an appeal requiring leave was not pending until leave had been granted ([6]). He found no indication in s 4.1.59 that the legislature intended a different meaning. Read with ss 4.1.56 to 4.1.58, s 4.1.59 treated an application for leave and an appeal as distinct proceedings ([7]).
The statutory arrangement also informed the Court's reasoning about the stay. Keane JA read s 4.1.59(2) as relief from the automatic stay imposed by s 4.1.59(1). On that reading, the exception could operate only once an appeal had been commenced and the stay had been triggered. Until leave was granted, the statutory stay was not operating in the circumstances addressed by this application ([8]-[10]). The Court rejected the argument that this interpretation created an inconvenient gap. The legislature had chosen when the restriction on development applied, and the requirement for leave was part of that design ([9]).
That point was sufficient to dismiss the application. The Court then made further observations because the parties had argued about the scope of s 4.1.59. Those observations should be distinguished from the jurisdictional holding.
First, Keane JA questioned whether an order to let development “start” could permit a use already underway to “continue”. He noted that other IPA provisions, including ss 4.3.3 and 4.3.5, addressed contraventions and unlawful uses in terms directed to ongoing conduct. Section 4.1.59(2), by contrast, did not give the Court power to relieve against those separate prohibitions ([18]-[20]). He considered that a clear indication would be needed before the provision could be read as empowering the Court to make otherwise unlawful conduct lawful ([19]).
Secondly, the Explanatory Notes supported the view that s 4.1.59 was intended to operate as a limited exception to a stay, not as a general source of permission to continue unlawful activity. The examples discussed development that could proceed without affecting the appeal, such as building work where the dispute concerned access or parking, or construction where the appeal concerned a later operational condition ([21]-[23]). The Court considered Rokay's situation different because the contested use itself was already occurring.
Thirdly, the Court discussed the statutory condition that the outcome of the appeal would not be affected. Keane JA suggested this might address the risk that development carried out under an interim order would supersede or alter the practical effect of the appeal. If so, the power might be confined to uncontroversial parts of a development. He expressly refrained from deciding the point because neither respondent had argued it ([24]).
Finally, the Court commented on discretion. Rokay relied on potential prejudice if grocery sales stopped. Keane JA considered that the fact that trading began despite warnings and awareness of risk was a compelling answer to that reliance ([25]). He drew an analogy with Optus Mobile Ltd v Canada Bay City Council, where the applicant had proceeded with a telecommunications tower despite knowing of opposition and a legality challenge. The Court used the cited passage from Optus to illustrate the weakness of claiming the benefit of continued use after a known risk had materialised ([26]). The Court also considered that asserted prejudice to employees or associates would carry less force where the trading entities began “with their eyes wide open” ([27]). These comments were not a final determination of the balance of convenience, which the Court said it did not need to decide.
The judgment did not purport to establish a new general rule governing every statutory appeal or every planning approval. Its principal construction was specific to the IPA provisions before the Court. Before this decision, the relevant IPA text already made leave necessary for an appeal under s 4.1.56, and s 4.1.59(2) referred to an “appeal before” the Court. The Court construed those provisions together and held that the leave requirement had to be met before the s 4.1.59(2) power was enlivened ([5]-[10]).
The judgment's practical statutory distinction was between an application for leave and an appeal. The filing of an application for leave did not, by itself, create the appeal contemplated by s 4.1.59(2). On the Court's reading, there was no appeal-related power to lift the statutory stay before leave was granted. The holding was therefore procedural and jurisdictional, rather than a final decision about the merits of the proposed appeal or the underlying planning dispute.
The Court also articulated a narrow reading of the relationship between ss 4.1.59 and 4.3.1, 4.3.3 and 4.3.5. It treated s 4.1.59(2) as addressing whether development could start while an appeal was pending, not as overriding the separate statutory rules about unapproved or unlawful ongoing use ([18]-[23]). Because those observations followed the threshold ruling, they should not be overstated as necessary to the result.
The supplied judgment does not establish how later courts treated Woolworths v Maryborough City Council. It includes no later judicial decisions on the case. Its references to Stone v Copperform Pty Ltd and Bell v Bay-Jespersen support the proposition about appeals requiring leave, while Optus Mobile is used as an analogy on discretionary prejudice. Those authorities are the earlier sources that the Court itself cited or applied; the text supplied here does not provide a basis for claims about subsequent doctrinal development.
At [5], Keane JA said that because leave had not been granted “there is no appeal on foot”. In plain English, a pending request for permission to appeal was not enough. The appeal itself did not exist for the purposes of the section until the Court granted leave.
At [10], he concluded that leave had to be granted “in order to enliven the power” under s 4.1.59(2). This is the clearest statement of the basis on which the application failed. The Court was not deciding whether Rokay would ultimately obtain leave, but whether it could grant the interim order before deciding that question. It answered no.
At [19]-[20], the judgment distinguished “start” from “continue”. The Court considered the ordinary meaning of “start” to mean commence, and noted that the Act used other language for ongoing contraventions and unlawful use. In plain terms, a power to permit something to begin during an appeal did not obviously amount to a power to legalise activity that had already begun and was continuing.
At [24], the Court explored whether development that could change the practical outcome of an appeal would fall outside the statutory exception. But Keane JA specifically said the point had not been argued and declined to reach a conclusion. It is therefore an identified question, not a decided rule.
At [25], Keane JA said the applicant's decision to begin unlawful trading with its “eyes wide open” was a compelling answer to its reliance on prejudice. That comment means the Court regarded knowingly accepting a legal risk as relevant when assessing claimed hardship. It does not mean the Court determined every aspect of the discretionary balance, because it had already found that it lacked power to make the order.
The central holding is relevant to the procedural situation where a party seeks an interim order under s 4.1.59(2) of the IPA after filing an application for leave to appeal, but before leave has been granted. The feature that triggered the threshold rule was not simply that an appeal was planned. It was that the statutory appeal could only be brought with leave, and the leave application remained unresolved ([5]-[10]).
The additional observations concern a narrower factual pattern: development or use has already commenced, a required approval is absent or has been set aside, and the applicant seeks an order worded as permission for that activity to continue. The judgment records that the Warehouse Group began trading after the Council had advised that approval was needed and before completion of the approval process ([14]-[18]). That history informed the Court's comments about the difference between starting and continuing development and about the weight of claimed prejudice.
The Court's discussion of the “outcome of the appeal” condition may also be relevant where the interim development could affect the practical subject matter of the appeal. However, the judgment did not decide the precise boundary of that condition. Keane JA's suggestion that the section might be confined to uncontroversial development was expressly tentative ([24]).
These points should be applied with care outside the provision and statutory setting considered in this judgment. The decision construed particular IPA sections; the supplied text does not state a general rule for every leave-based appeal, every statutory stay, or every form of interim relief.
The judgment text supplied for this analysis contains no later court decisions citing or applying Woolworths v Maryborough City Council. It is therefore not possible, on this source alone, to describe subsequent treatment, later approval, limitation, distinction or overruling.
What the judgment does show is how the Court relied on earlier authorities. At [6], Keane JA cited Stone v Copperform Pty Ltd and Bell v Bay-Jespersen for the established proposition that an appeal requiring leave is not pending until leave is granted. At [26], he treated Optus Mobile Ltd v Canada Bay City Council as an analogous example of a party's knowing assumption of risk weakening a request to retain the benefit of ongoing use. At [27], he cited Beecham Group Ltd v Bristol Laboratories Pty Ltd, Martin Engineering Co v Trison Holdings Pty Ltd and Beecham Group Plc v Colgate-Palmolive Pty Ltd in relation to the prejudice consideration.
Those citations explain the reasoning in this decision; they do not supply evidence of how later courts treated this decision itself. A lawyer or researcher using the case for current work would need to check subsequent judgments and statutory amendments separately.
The judgment left several matters unresolved. Most clearly, it did not decide whether s 4.1.59(2)'s “outcome of the appeal” condition excludes development that is itself the subject of the appeal. Keane JA suggested a possible construction based on whether development could supersede or affect the result, but explicitly noted that the respondents had not argued the point and expressed no conclusion ([24]).
The Court also did not determine the full scope of “start” in s 4.1.59(2) as a necessary part of its decision. Its observations strongly favoured distinguishing commencement from continuation, but the application had already failed because no appeal was on foot ([11], [18]-[23]). The extent to which those observations determine a case with an appeal properly before the Court is not answered by this judgment.
Nor did the Court decide the discretionary balance of convenience. It commented that Rokay's knowledge of the risk substantially weakened the prejudice argument, but said a concluded view was unnecessary ([25]-[27]). The formal result rested on the absence of jurisdiction at that stage, not on a final assessment of all competing practical consequences.
The judgment also does not address what would happen to a s 4.1.59(2) request after leave to appeal is granted, or how the provision interacts with different kinds of development, approvals, conditions or parties. Its examples from the Explanatory Notes concerned distinct building work or management conditions not central to the appeal ([21]). Those examples help explain the statutory context but do not settle every boundary question.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Woolworths Ltd v Maryborough CC & Anor [2005] QCA 62
PARTIES: WOOLWORTHS LTD ACN 000 014 675 (appellant/first respondent) v MARYBOROUGH CITY COUNCIL (first respondent/second respondent) ROKAY PTY LTD ACN 098 337 690 (second respondent/applicant)
FILE NO/S: Appeal No 11375 of 2004 / P & E Appeal No 1480 of 2004
DIVISION: Court of Appeal
PROCEEDING: Miscellaneous Application - Civil
ORIGINATING COURT: Planning & Environment Court at Maryborough
DELIVERED ON: 11 March 2005
DELIVERED AT: Brisbane
HEARING DATE: 25 February 2005
JUDGES: Williams and Keane JJA and Douglas J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: 1.Application dismissed / 2.Applicant to pay the first respondent's costs of the application to be assessed / 3.No order in relation to the second respondent's costs of the application
CATCHWORDS: ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - SUPREME COURT - OTHER MATTERS - first respondent challenged approval for material change of use of premises given to applicant by second respondent in Planning and Environment Court - first respondent successful in Planning and Environment Court - applicant has lodged application for leave to appeal with Court of Appeal - applicant seeks order under s 4.1.59(2) Integrated Planning Act 1997 (Qld) to allow continued selling of goods pursuant to approval for material change of use - where applicant had sold goods contrary to zoning prior to granting of approval for material change of use - whether the Court has the jurisdiction to make an order under s 4.1.59(2) when an application for leave to appeal has been filed but not heard - whether the Court has the power to grant the order where an applicant seeks to "continue", rather than "start" a development - whether in its discretion the Court should grant the order sought when the parties commenced trading without an approval with their eyes open to the risks / Integrated Planning Act 1997 (Qld), s 4.1.56, s 4.1.59, s 4.3.1 / Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, cited / Beecham Group Plc v Colgate-Palmolive Pty Ltd [2004] FCA 1335; (2004) 64 IPR 45, cited / Bell v Bay-Jespersen [2004] QCA 68; [2004] 2 Qd R 235, applied / Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543, cited / Optus Mobile Ltd v Canada Bay City Council [2004] NSWCA 446; CA No 40977 of 2004, 6 December 2004, applied / Stone v Copperform Pty Ltd [2004] QCA 7; [2002] 1 Qd R 106, applied
COUNSEL: C L Hughes SC, with M Williamson, for the applicant / J D Houston for the first respondent / R S Litster for the second respondent
SOLICITORS: Deacons for the applicant / Mallesons Stephen Jaques for the first respondent / Corser Sheldon & Gordon (Maryborough) for the second respondent
WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and I agree with all that he has said therein. The orders should be as proposed by Keane JA.
KEANE JA: The applicant, Rokay Pty Ltd, is the owner of premises at Ferry Street Maryborough ("the site") which it has leased to The Warehouse Group Limited ("the Warehouse Group") for the purpose of a retail outlet. The application now before this Court arises out of a decision of the Planning and Environment Court delivered on 17 December 2004. By that decision the first respondent, Woolworths Ltd, succeeded in its appeal against the decision of the second respondent, the Maryborough City Council, to approve a material change of use of the site whereby the sale of food and groceries was permitted. The applicant has applied for leave to appeal against the decision of the Planning and Environment Court. That application for leave to appeal has not yet been determined. It has been listed for hearing on 1 April 2005.
The applicant now seeks from this Court an order under s 4.1.59(2) of the Integrated Planning Act 1997 (Qld) ("the IPA") allowing the sale of food and groceries at the site to continue before the appeal is dealt with.
Section 4.1.59 of IPA provides:
"4.1.59 Lodging appeal stops certain actions
(1)If a decision on an appeal under division 8 (other than an appeal under section 4.1.30) is appealed under this division, the development must not be started until the appeal under this division is decided or withdrawn.
(2)Despite subsection (1), if the Court of Appeal is satisfied the outcome of the appeal before it would not be affected if the development or part of the development is started before the appeal before it is decided, the Court of Appeal may allow the development or part of the development to start before the appeal before it is decided."
A preliminary difficulty
In my view, the applicant is confronted, at the threshold, by the difficulty that, since leave to appeal has not yet been granted by this Court, there is no appeal on foot so that the decision of the Planning and Environment Court is not one which can be said to be "appealed" under the relevant division of the IPA. Accordingly, this Court has no power to allow "the development or part of the development to start before the appeal before it is decided".
An appeal to this Court under s 4.1.56 of the IPA is available only on limited grounds, and may be brought "only with the leave of the Court of Appeal or a judge of Appeal".1 It is well established, albeit in other statutory contexts, that where an appeal lies only by leave, there is no appeal pending unless and until leave is granted.2
There is nothing in the language of s 4.1.59 which would suggest a different conclusion in this context. Rather, it seems to me that the power conferred on this Court by s 4.1.59(2) is expressly predicated upon the pendency of an "appeal before it". The reference to "appeal" occurs in a congeries of sections which explicitly treat appeals and applications for leave to appeal as distinct proceedings and the grant of leave as a necessary precondition of an appeal. The provisions of s 4.1.56, s 4.1.57 and s 4.1.58 of the IPA clearly express the intention of the legislature that this Court's role in relation to matters arising under the IPA is a limited one.
It is to be noted that s 4.1.59(1) operates to impose an automatic stay upon the commencement of development when a decision is appealed. The requirement for the grant of leave to appeal affords a measure of protection to a would-be developer who has been successful in the Planning and Environment Court. The automatic stay, imposed by s 4.1.59(1), on the enjoyment by a developer of the fruits of success before the Planning and Environment Court cannot, on the view I take, operate unless this Court has granted leave to appeal. In this way, a successful developer is protected from the disruption which would ensue if there was no requirement for scrutiny by the Court to ensure that the appeal was viable in terms of s 4.1.56 of the IPA.
Further in this regard, it is to be noted that the power conferred by s 4.1.59(2) is a power to grant relief against the otherwise automatic stay upon development imposed by s 4.1.59(1). The applicant's argument would treat s 4.1.59(2) as vesting a power in the Court to allow development to proceed even where the would-be developer has been unsuccessful before the Planning and Environment Court. The applicant then urges an argument of inconvenience, viz, that if the power conferred by s 4.1.59(2) is available only when leave has been granted, there is an inconvenient gap in the Court's power to control development. This argument, in my respectful view, fails to recognize that, by s 4.1.59(1), the legislature has imposed a restriction on development against a would-be developer who has been successful in the Planning and Environment Court. The requirement of a grant of leave to appeal as a precondition of the power conferred by s 4.1.59(2) does not evidence a lacuna in the legal control of development because prima facie legal control has been imposed by the legislature; and the legislative choice has been to restrain the commencement of development upon the commencement of an appeal but not before.
The development has started
A difficulty in the application of s 4.1.59(2) to the present circumstances is that the "development" in question has been carried on for some time. To appreciate the nature of this difficulty, some further reference to the facts is necessary.
On 24 May 2000, the second respondent, the Maryborough City Council, issued to the then proprietor of the site a development permit for a material change of use for the purpose of "Showroom, as depicted on Plan No 99-201 (Proposed Roadway & Tenancy Layout)" subject to conditions ("the 2000 Development Approval"). The 2000 Development Approval was given under the second respondent's now superseded 1990 Planning Scheme, under which the definition of "showroom" specifically excluded premises which offered for sale food and groceries (other than fresh fruit and vegetables). By letter dated 16 December 2002, the second respondent wrote to representatives of the applicant advising that the sale of food and groceries was a use "consistent with the definition of 'shop' in the City Plan and not in accordance with the development permit".
On 16 May 2003, the applicant lodged an application for "material change of use of small area to 'shop'". The second respondent replied to this application, advising the applicant that "completion of the application process must be achieved prior to the commencement of use of a part of the approved showroom use for the purpose of 'Shop'".
Notwithstanding these indications of the second respondent's attitude, the Warehouse Group commenced trading on or about 12 June 2003 including the sale of food and groceries. It has continued to do so.
On 10 December 2003, the second respondent issued to the applicant a decision notice approving a material change of use for the site, subject to conditions; and on 25 March 2004, after negotiations between the second respondent and the applicant, the second respondent issued a negotiated decision notice.
On 23 April 2004, the first respondent appealed against the Council's decision and sought that the negotiated decision notice be set aside. The first respondent's appeal was heard in the Planning and Environment Court on 15 - 18 November 2004, and on 17 December 2004, that court allowed the appeal by the first respondent. On 24 December 2004, the applicant filed an application seeking leave to appeal against the decision of the Planning and Environment Court; and on 9 February 2005, the applicant filed the present application seeking an order to permit the Warehouse Group to continue the unlawful sale of food and groceries, pending the outcome of the application for leave to appeal.
Under s 4.3.1 of the IPA, it is an offence to start assessable development without a development planning permit. It is common ground that the sale of food and groceries is assessable development. There is no extant development approval for the sale of food and groceries from the site. Thus the effect of the application is to obtain the approval of this Court to continue a use commenced and, after 17 December 2004, continued, unlawfully. That would seem to be prohibited by s 4.3.3 or s 4.3.5 of the IPA which, as a matter of language, are directed to ongoing development as distinct from the starting of a development. It is to be noted that while s 4.3.1 of the IPA prohibits starting a development, s 4.3.3 and s 4.3.5 proscribe the contravention of a development approval or the use of premises if the use is not a lawful use. Further, it is to be noted that s 4.1.59(2) affords no power to the Court to grant relief against the operation of s 4.3.3 or s 4.3.5 of the IPA.
"Clause 4.1.47 in part is derived from the current Act, but has been modified. Once an appeal is lodged, development must not start until after the appeal is decided or withdrawn.
However, it is recognised that this could be unnecessarily restrictive in some cases, such as an appeal about a specific permit condition that does not involve submitters or other co-respondents. The court may allow the development (or part of the development) to proceed before the appeal is decided but only if the court considers the outcome of the appeal would not be affected.
The capacity to allow development or an aspect of development to proceed recognises that a development approval under IDAS may cover a range of development, some of which is not at issue in the appeal. It also recognises that IDAS encourages the inclusion in development approvals of management conditions that may previously have been established through other statutory mechanisms such as licenses.
For example, if an appeal about a proposed shopping centre development concerned aspects of operational works associated with access or parking, the court may allow building work for the shopping centre to proceed if it does not affect the outcome of the appeal about the operational works. Also, if an appeal concerned a condition about the ongoing management or use of a premises after development had been completed (such as hours of operation), the court may decide that the development could proceed because the building of the structure itself is unrelated to the substantive issues of the appeal before the court." (emphasis added)
This passage suggests that the situation presently before the Court is radically different from those which the legislature had in contemplation when s 4.1.47 and s 4.1.59 of the IPA were enacted. However that may be, it is clear that there is nothing in the Explanatory Notes which suggest that either s 4.1.47 or s 4.1.59 of the IPA was intended to facilitate the continued pursuit of conduct rendered unlawful by other provisions of the IPA.
Further, I have already commented upon the collocation of s 4.1.59(2) with s 4.1.59(1), and expressed the view that the power conferred on the Court by s 4.1.59(2) is limited to lifting the statutory stay which otherwise applies, by virtue of s 4.1.59(1), to prohibit the commencement of development after the commencement of an appeal. This view of the nature of s 4.1.59(2) is confirmed by the Explanatory Notes, in that s 4.1.59(2) was not intended by the legislature as a free-standing charter under which a disappointed developer may seek authority from this Court to do that which is otherwise unlawful under the IPA.
Finally in relation to the scope of the power conferred on this Court by s 4.1.59(2), it may be that, when the provision conditions the exercise by the Court of the power conferred thereby by requiring that the Court be satisfied that "the outcome of the appeal before it would not be affected if the development or part of the development is started before the appeal before it is decided", the provision is concerned with the possibility that the outcome of the appeal may be superseded by the commencement of the development. It seems to me that if the outcome of the appeal is such that the development which has occurred under the Court's approval is not authorized by the scheme of rights and duties reflected in the outcome of the appeal, then the outcome of the appeal will have been affected in this sense. If this approach is correct, then the power conferred by s 4.1.59(2) would be limited to uncontroversial aspects of the proposed development, and would not be available to authorize the very development which is in controversy in the appeal. This approach seems to me to draw support from the passage from the Explanatory Notes highlighted above. This having been said, I acknowledge that this point of view was not argued by either of the respondents, and so I refrain from expressing any conclusion on the point.
Discretionary considerations
For the foregoing reasons, it is not necessary to reach a concluded view as to whether the balance of convenience could be said to favour the exercise of the power conferred on the Court by s 4.1.59(2); but I should say that the circumstance that the applicant permitted the commencement of unlawful trading with "its eyes wide open" affords, in my view, a compelling answer to the applicant's attempt to tip the balance of convenience in its favour by pointing to the prejudice which might enure to the applicant or third parties should sales of food and groceries not continue.
So far as the applicant is concerned, an analogous situation arose in Optus Mobile Ltd v Canada Bay City Council.3 There the applicant (Optus) had built and was operating a telecommunications tower, despite knowing the land on which it was built was to be listed as a potential heritage item (which would affect the legality of the construction), and that the respondent council had instituted proceedings challenging its legality in the Land and Environment Court ("LEC"). The Council was successful in the LEC, which ordered that Optus be restrained from maintaining the telecommunications tower. Optus appealed from the LEC decision and sought a stay, pending appeal, of the order restraining use of the tower. Given that the erection of the tower was found in the LEC to have been illegal, an important consideration in the stay application was:
"the fact that it proceeded with the erection of the facility well knowing that there was determined opposition to it from the opponent, and indeed that it began the erection after the commencement of the proceedings in the Land and Environment Court. The claimant took the risk that the erection of the facility would be found to be illegal. The risk having come home, it is not in a strong position in saying that it should be allowed to take the benefit of continued transmission from the facility pending an appeal."4
Conclusion
(a) that the application be dismissed;
(b) that the applicant pay the first respondent's costs of the application to be assessed; and
(c) that there be no order in relation to the second respondent's costs of the application.
IPA s 4.1.56(1) and (2). ↩
See Stone v Copperform Pty Ltd [2002] 1 Qd R 106 at 107; Bell v Bay-Jespersen [2004] 2 Qd R 235 at 239 - 240. ↩
[2004] NSWCA 446; CA No 40977 of 2004, 6 December 2004. ↩
Optus Mobile Ltd v Canada Bay City Council [2004] NSWCA 446; CA No 40977 of 2004, 6 December 2004 at [15]. ↩
See generally Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 esp at 626; Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543 at 554; Beecham Group Plc v Colgate-Palmolive Pty Ltd (2004) 64 IPR 45 at 54. ↩
Woolworths Ltd
Maryborough City Council & Anor [2005] QCA 62
(1968) 118 CLR 618
(2004) 64 IPR 45
(1988) 81 ALR 543
Application dismissed. The applicant was ordered to pay the first respondent's costs of the application, to be assessed. No order was made in relation to the second respondent's costs.
In summary, there can be no doubt that there must be a grant of leave to appeal in order to enliven the power conferred on the Court by s 4.1.59(2) of the IPA, just as there must be a grant of leave to appeal to have triggered the operation of s 4.1.59(1) against which the Court has power to grant relief.
Accordingly, I consider that the present application must fail "in limine". While that conclusion is sufficient to dispose of the application, it is desirable, having regard to the arguments which were put to the Court by the parties, to make some further observations as to the scope of the Court's powers under s 4.1.59 of the IPA.
That the legislature has, in s 4.3.3 and s 4.3.5 of the IPA, used language apt to proscribe the continuing sale of food and groceries from the site at the present time as distinct from a proscription upon "starting" development, tends to suggest in my view that where the word "start" is used in the IPA in connection with development it is used in its ordinary sense of "commence" rather than as also encompassing "continue". Mr Hughes SC, who appeared with Mr Williamson for the applicant, pointed out that the heading to s 4.3.1 is "Carrying out assessable development without permit". He argued that this suggests that the legislature was treating "carrying out" development as the equivalent of "starting development" and vice versa. It may be accepted that starting a development is part of "carrying out" the development, but the converse is not true. The more comprehensive language of the prohibitions in s 4.3.3 and s 4.3.5 is not repeated in s 4.1.59. More importantly, as I have noted, a power to relieve an applicant from those prohibitions is not to be found in s 4.1.59(2). A very clear indication of a legislative intention would be required to empower a court to render lawful that which has otherwise been declared to be unlawful by the legislature. In my view, this legislation contains no such indication.
In this regard, the text of s 4.1.59(2), which refers to this Court allowing a development or part of a development "to start before the appeal before it is decided" expressly seems to contemplate a situation where the approval of the Court is sought before the commencement of what would otherwise be unlawful conduct occurs. There is no apparent reason why the Court should seek to go beyond the express words of the conferral of power on it to expand a jurisdiction to allow that which would otherwise be unlawful. There is nothing in the text of s 4.1.59 inviting the Court to relax the ordinary meaning of the word "start" so that it includes "continue"; and the Explanatory Notes to the Integrated Planning Bill tend to confirm that this was deliberate on the part of the legislature.
The Explanatory Notes state that cl 4.1.59 "mirrors clause 4.1.47 in its effect". When one turns to the Explanatory Notes in relation to cl 4.1.47 the following appears: