Novadeck Pty Ltd v Brisbane City Council
[2016] QPEC 53
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- Unreported Judgment
- Novadeck Pty Ltd v Brisbane City Council[2016] QPEC 53
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Novadeck Pty Ltd v Brisbane City Council[2016] QPEC 53
Novadeck Pty Ltd v Brisbane City Council[2016] QPEC 53
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53 |
PARTIES: | NOVADECK PTY LTD (ACN 602 273 932) (applicant) v BRISBANE CITY COUNCIL (respondent) |
FILE NO/S: | 3529 of 2016 |
DIVISION: |
|
PROCEEDING: | Application |
ORIGINATING COURT: | Planning and Environment Court |
DELIVERED ON: | 28 October 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 October 2016 |
JUDGE: | Everson DCJ |
ORDER: | The application is dismissed |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPPLICATION – joinder of parties – permissible change application – where the applicant does not have a right to be heard in the determination of the originating application – whether presence of applicant before the court would be desirable, just and convenient – whether court can complete the task mandated by the legislative framework without including the applicant to the proceeding. Integrated Planning Act 1997 Planning and Environment Court Rules 2010 Sustainable Planning Act 2009 Uniform Civil Procedure Rules 1999 Coolum Properties Pty Ltd & Bunnings Group Ltd v Maroochy Shire Council & Ors [2007] QCA 299 Leda Holdings Pty Ltd v Caboolture Shire Council [2007] 1 Qd R 467 Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 |
COUNSEL: | C Hughes QC with M Batty for the applicant M Osborne (solicitor) for the respondent M Williamson for the applicant for joinder |
SOLICITORS: | Thompson Geer for the applicant Brisbane City Legal Practice for the respondent Mills Oakley Lawyers for the applicant for joinder |
Introduction
- [1]This is an application whereby Beriley Pty Ltd (ACN 119 849 599) (“Beriley”) seeks an order pursuant to r 69(1)(b)(ii) of the Uniform Civil Procedure Rules 1999 (“UCPR”) that Beriley be included in this proceeding.
- [2]In this proceeding Novadeck Pty Ltd (ACN 602 273 932) (“Novadeck”) seeks orders that the judgment of the court dated 8 October 2008 (“the Original Approval”) granting a development permit for material change of use (multi-unit dwelling) and a preliminary approval for building work (multi-unit dwelling) and changed by a judgment of the court on 7 December 2015 (“the Modified Approval”) on land described as Lot 6 on RP72330 and located at 28 Benhiam Street, Calamvale (“the land”) be further changed pursuant to s 369 of the Sustainable Planning Act 2009 (“SPA”).
The relevant history of the proposed development and the adjoining land
- [3]As a consequence of the Original Approval and the Modified Approval Novadeck has constructed 49 two storey townhouse dwellings on the land.[1] Beriley is a property developer which is currently constructing 51 residential units on land at 2265 Beaudesert Road, Calamvale (“the Beriley land”) which adjoins the land to the south.[2] The development application which gave rise to the Original Approval was impact assessable and Beriley made a submission objecting to the proposed development.[3] If the opportunity were to arise Beriley asserts it would make a submission objecting to the changes, the subject of the application currently before the court.[4]
The relevant legislative provisions
- [4]The originating application brought by Novadeck seeks to make a permissible change to the development approval constituted by the Original Approval as already changed by the Modified Approval. Section 367 of SPA defines a permissible change in the following terms:
“(1) A permissible change, for a development approval, is a change to the approval that would not, because of the change –
- (a)result in a substantially different development; or
- (b)if the application for the approval were remade including the change –
- (i)require referral to additional concurrence agencies; or
(ii) for an approval for assessable development that previously did not require impact assessment—require impact assessment; or
- (c)for an approval for assessable development that previously required impact assessment—be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed; or
- (d)cause development to which the approval relates to include any prohibited development.
- (2)For deciding whether a change is a permissible change under subsection (1)(b) or (d), the planning instruments or law in force at the time the request for the change was made apply.”
- [5]Thereafter beginning at s 369 the procedure for making a request for a permissible change to the relevant decision making entity (the responsible entity) is set out. In the circumstances before me the responsible entity is the court. Relevantly s 372 provides that where the development approval was given by the court a person making such a request must give a copy of the request to the assessment manger and any concurrence agencies for the original application.[5] Thereafter s 373 states, inter alia:
“(1) An entity given a copy of the request under section 372 must, within 20 business days after receiving the request, give the responsible entity a written notice advising –
- (a)it has no objection to the change being made; or
- (b)it objects to the change being made and the reasons for the objection.”[6]
- [6]Section 375 addresses deciding the request. Section 376 provides for the giving of written notice of the decision. Section 377 states that if the decision is to approve the request for a permissible change, the decision takes effect on the day the notice mentioned in s 376 is given to the person who made the request.[7]
- [7]Pursuant to the Planning and Environment Court Rule 2010 (“PECR”) if these rules do not provide for a matter in relation to a court proceeding, the rules applying in the District Court apply for the matter in the court with necessary changes.[8]
- [8]As the PECR do not provide for including additional parties in a proceeding, the rules applying in the District Court apply in this circumstance. They are set out in r 69 of the UCPR. Relevantly r 69 states:
“ (1) The court may at any stage of a proceeding order that –
- (a)a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or
- (b)any of the following persons be included as a party –
- (i)a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding;
- (ii)a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.”
The application of Beriley
- [9]Beriley asserts in its application that its presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute concerning the application of Novadeck seeking a further permissible change to the development approval (“the further changes”). Beriley wishes to agitate concerns relating to increases in the pad levels for townhouse dwellings located close to the common boundary between the land and the Beriley land, and changes to the proposed acoustic barriers located on the same boundary of the land. Significantly the Brisbane City Council issued a notice to responsible entity pursuant to s 373(1) of SPA objecting to the further changes being made (“the notice”). The notice stated, inter alia:
“The Respondent is not satisfied that the proposed changes would not be likely to cause a person to make a properly made submission objecting to other proposed changes, if the circumstances allowed.”[9]
- [10]Therefore the circumstances before me are that, while Beriley has no right to be heard in respect of Novadeck’s application, the Brisbane City Council has nonetheless taken the concerns of Beriley into account in assessing Novadeck’s request for a permissible change pursuant to s 373 of SPA. This is reflected in the notice which has been forwarded to the court pursuant to this provision.
- [11]The interrelationship between the prescriptive planning regime in Queensland pursuant to the now repealed Integrated Planning Act 1997 and r 69 of the UCPR was considered by the Court of Appeal in Leda Holdings Pty Ltd v Caboolture Shire Council.[10] Keane JA observed:
“The discretion conferred by r 69 should be approached as intended to facilitate the determination of proceedings in accordance with the rules of natural justice. It should not be approached as if it were intended to restrict the availability of the common law right of a person likely to be affected by a decision to be heard in relation to that decision.”[11]
Subsequently McMurdo J stated that there was no support for the assertion that the operation of r 69 had been ousted by implication.[12] In Leda the owner of land to which development rights attached sought to be substituted in a proceeding before the Court of Appeal in circumstances where the previous owner which held the benefit of a development approval no longer had any interest in the outcome of the proceeding. Unsurprisingly the Court of Appeal granted the application.
- [12]The Court of Appeal was not so amenable when a prospective tenant of a purposed development sought to be included in an application for leave to appeal from a decision of the Planning and Environment Court in Coolum Properties Pty Ltd & Bunnings Group Ltd v Maroochy Shire Council & Ors.[13] After analysing the issues in dispute Jerrard JA stated:
“Those matters are already litigated to some extent in the arguments of the parties who are properly before the Court, and the argument this morning has not explained why further representation by an entity with a commercial interest is necessary to allow the Court to adjudicate completely or effectively or even at all on that matter.”[14]
- [13]Beriley asserts that it cannot rely upon the council to ensure its concerns are properly agitated in Novadeck’s application. While Novadeck asserts that the magnitude of the changes the subject of this application are not great, Beriley submits otherwise. The planner engaged on behalf of Novadeck summarised the changes in the following terms:
“Overall, the changes involve adjustments which occurred due to refinements in the detailed design and construction stages of the approved development”[15]
- [14]Beriley submits that, in undertaking the exercise mandated by s 367 of SPA to determine whether the further changes do indeed come within the definition of a permissible change, it is necessary to not only consider the changes the subject of the application before the court but also “the real extent of the change” from the Original Approval, rather than merely the changes sought to the Modified Approval.[16] In support of this submission Beriley relies upon passages of a decision of this court in Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council.[17] Relevantly the learned Judge stated:
“In a case like this, where a development approval has been permissibly changed pursuant to SPA, the approval as changed must be taken to be valid and effective, for the purposes of any further request to make a permissible change. It is well established that a development approval must be treated as valid until it is declared invalid by a Court of competent jurisdiction. If a person wished to challenge the validity of the earlier approved request for a permissible change (for example, the 2012 approval) that can only be done in declaratory proceedings suitable for the purpose.
As a matter of common sense, an applicant can only seek to change the last manifestation of a development approval, which becomes the benchmark or yardstick to identify the extent of the proposed change. That is, if no permissible changes were approved, then the original development approval provides the comparative benchmark. If one or more permissible changes were approved, then the changed development approval (as amended from time to time) would provide the comparative benchmark. This would properly identify the contemporary development rights that attached to the land immediately before the proposed change. However, the permissible change process should not permit an applicant to incrementally change an approval by a series of requests and thereby create a new development substantially different to that originally approved.”[18]
- [15]It is the final sentence quoted above which is contentious. Subsequently his Honour further explained his intended meaning of this passage in the following terms:
“The assessment of whether the cumulative effect of a proposed change would, or would not, result in a substantially different development involves matters of fact and degree, considered broadly and fairly. In doing so, as I aver above, the process should not circumvent the requirement for a development application, by allowing a substantially different development (to that originally approved) to evolve by incremental changes through a series of requests.”[19]
- [16]The decision in Orchard in this respect has been criticised by reputable commentators on planning law in Queensland in the following terms:
“These obiter dicta passages seem to raise the prospect of a double-barreled test in circumstances where a development approval has been previously changed. The first step would involve testing the change proposed against the latest iteration of the development approval to see whether it is disqualified under any of the limbs of s 367(1). The second part of the bifurcated test would be to ask whether all of the changes cumulatively, together with the proposed change, would yield a development that is substantially different from that originally approved.
Whether this caveat will eventually be embraced by the PEC remains to be seen. It involves implying words into s 367(1) that are not evident on a natural reading of the section, nor required by orthodox construction principles. It seems to reflect a degree of judicial discomfort with the application of the permissible change regime to fully or partly implemented development approvals.
It is respectfully suggested that it is unnecessary to imply an additional disqualification factor to cover the circumstances postulated by the PEC. It seems practically unlikely that a series of changes which are individually permissible would in the aggregate be impermissible. It is more likely that one of the series of changes viewed in isolation against the applicable iteration of the development approval could be properly considered to be a tipping point. If such a change is approved and results in a valid development approval, any attempt to use s 367(1) to undo the approval by not applying the section in accordance with its clear terms is likely to result in legal error. A proposed change can only be evaluated against the current lawful iteration of the development approval. There is no scope within s 367 to do otherwise.”[20]
- [17]I respectfully agree with the criticisms set out above and disagree with the learned Judge’s analysis referred to therein. Section 367(1) makes it clear that the focus with respect to each of the considerations in subparagraphs (a) – (d) is the change to the approval the subject of the request. The development approval against which the change is measured in all cases is the development approval in place at the time the request to change it is made. On the facts before me the development approval is the Modified Approval and the further changes the subject of the application brought by Novadeck are to be assessed solely by comparing the further changes to the Modified Approval.
Conclusion
- [18]The applicability of the rules of natural justice is subject to the relevant statutory law that applies. Pursuant to SPA, Beriley does not have a right to be heard in the determination of the application brought by Novadeck. This is uncontentious. It is not the intention of SPA that those wishing to make a submission in respect of a development application necesarily have a right to be heard in a subsequent court proceeding. An obvious example is a code assessable development application.[21] The exercise which must be undertaken by the court pursuant to Novadeck’s application is prescribed by s 367. It is a confined inquiry which is informed by the subsequent provisions of SPA noted above. Significant constraints are placed upon the circumstances in which a change to a development approval can occur in s 361(1). On the facts before me the concerns of Beriley are being brought to the attention of the court by the Brisbane City Council in the notice it has given pursuant to s 373 of SPA. There is nothing before me which suggests that the court cannot undertake the task mandated by the legislative framework when comparing the further changes the subject of the Novadeck application to the Modified Approval without including Beriley as a party to the proceeding pursuant to r 69 of the UCPR. Conversely there is a prospect that the parties to the Novadeck application would incur additional unnecessary costs should Beriley be included as a party.
- [19]I am therefore of the view that it would not be desirable, just and convenient to include Beriley as a party to the Novadeck application in circumstances where all of the relevant issues will be placed before the court in any event and its inclusion would potentially add to the costs of the parties.
Order
- [20]The application is dismissed.
Footnotes
[1] Ex 1, p1.
[2] Affidavit of Ho Ming Chan filed 21/10/16 paras 5 and 6 and Ex 1, p1.
[3] Ibid, para 8.
[4] Ibid, para 25.
[5] SPA, s 372(1)(d).
[6] SPA, section 373(1).
[7] SPA, section 377(a).
[8] PECR, s 3(2).
[9] Affidavit of Kevin Jon Lanning filed 18/10/16, Ex “G”.
[10] [2007] 1 Qd R 467.
[11] Ibid at 470.
[12] Ibid.
[13] [2007] QCA 299.
[14] Ibid at p 6.
[15] Affidavit of Natalie June Rayment, filed 18/10/16, para 5.
[16] Outline of submissions on behalf of the applicant for joinder, para 24, T1-87.
[17] (2015) QPELR 462.
[18] Ibid at 470.
[19] Ibid at 472.
[20] Fogg & Ors. Planning and Development Queensland, Lawbook Co., 2015, 6-1374.
[21] SPA ss 313 and 462.