Wyandra St Developments Pty Ltd v Brisbane City Council
[2024] QPEC 28
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- Unreported Judgment
- Wyandra St Developments Pty Ltd v Brisbane City Council[2024] QPEC 28
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Wyandra St Developments Pty Ltd v Brisbane City Council[2024] QPEC 28
Wyandra St Developments Pty Ltd v Brisbane City Council[2024] QPEC 28
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Wyandra St Developments Pty Ltd v Brisbane City Council [2024] QPEC 28 |
PARTIES: | WYANDRA ST DEVELOPMENTS PTY LTD (ACN 668 629 909) (Applicant) v BRISBANE CITY COUNCIL (Respondent) and SALLY YOUNG AND ANDRE GIGUERE (Applicants for joinder) |
FILE NO: | 567/24 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application in Pending Proceeding |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 4 June 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 May 2024 and further submissions received on 20 and 23 May 2024 |
JUDGE: | Kefford DCJ |
ORDER: | I order:
|
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPLICATION FOR A MINOR CHANGE TO A DEVELOPMENT APPROVAL – where the applicant sought to change a current development approval – where the current development approval had been granted by the Court – where the applicant did not name as respondents the individuals that were a party to the decision of the court that granted the current development approval – whether the parties to the development approval granted by the Court were directly affected and required to be named as respondents under r 8 of the Planning and Environment Court Rules 2018 |
LEGISLATION: | Planning Act 2016 (Qld) ss 78, 79, 80, 81, 81A, 229, sch 1 Planning and Environment Court Rules 2018 (Qld) rr 6, 8 Uniform Civil Procedure Rules 1999 (Qld) r 69 |
CASES: | Aveo Clayfield Pty Ltd v Brisbane City Council [2017] QPEC 60; [2018] QPELR 139, distinguished Collard v Brisbane City Council [2009] QPEC 62; [2010] QPELR 6, cited Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, applied Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 41; [2007] 1 Qd R 467, approved Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53; [2016] QPELR 951, distinguished |
COUNSEL: | J Lyons for the Respondent E Morzone KC and G Kiss for the Applicants for joinder |
SOLICITORS: | Connor O'Meara Solicitors for the Applicant Brisbane City Legal for the Respondent Stokes Lawyers for the Applicants for Joinder |
- [1]Wyandra St Developments Pty Ltd has a development permit that authorises the making of a material change of use for multiple dwellings and food and drink outlet (“the current development approval”). The development approval attaches to land at 37 Wyandra Street, Teneriffe (“the subject land”).
- [2]The current development approval was given by judgment of this Court on 25 November 2022 in Appeal No. 1913 of 2021. That was an appeal against the Council’s deemed refusal of an application made to the Council seeking a change to a development approval (other than a minor change). The development approval that was sought to be changed in that application was a development approval given by this Court on 10 May 2017 in Appeal No. 4066 of 2016.
- [3]The active parties in Appeal No. 1913 of 2021, shortly prior to its resolution, were:
- Wyandra JV Pty Ltd as the Appellant, who was applying to change the development approval given by this Court on10 May 2017;
- Brisbane City Council (“the Council”) as the Respondent, who was the assessment manager for the application to change the development approval; and
- Paul James McCarthy, Eugene Simkovic and Sally Young and Andre Giguere as Co-respondents by Election. They each made a properly made submission about the application to change the development approval and exercised their statutory rights to elect to join the appeal.
- [4]Before Appeal No. 1913 of 2021 was listed for hearing, the parties resolved their differences about the appropriateness of the development. Consequently, Wyandra JV Pty Ltd was not called on to discharge its onus with respect to any disputed issues. The judgment of this Court given on 25 November 2022 was not the product of a contested hearing on the merits. Rather, it was given with the consent of the active parties.
- [5]Wyandra St Developments Pty Ltd wants to change the current development approval. Pursuant to s 78 of the Planning Act 2106 (Qld), it has applied to this Court to make the change. In that respect, it filed an Originating Application on 1 March 2024.
- [6]The Originating Application names the Council as Respondent. There are no other named respondents.
- [7]Sally Young and Andre Giguere have filed an application in this proceeding seeking an order that they be included as respondents to this proceeding. Although the application in pending proceeding seeks an order permitting joinder under r 69 of the Uniform Civil Procedure Rules 1999 (Qld), at the hearing of the application, the parties addressed whether Ms Young and Mr Giguere were entitled to be named as respondents under r 8 of the Planning and Environment Court Rules 2018 (Qld).
- [8]The relief sought by Sally Young and Andre Giguere is opposed by Wyandra St Developments Pty Ltd.
- [9]I am satisfied that Ms Young and Mr Giguere are entitled to be named as respondents under r 8 of the Planning and Environment Court Rules 2018. My reasons follow.
- [10]Under s 78(2) of the Planning Act 2016, the Court is the responsible entity for an application to change a development approval if:
- the change application is for a minor change to a development approval;
- the development approval was given or changed by the Court; and
- a properly made submission was made about—
- the development application for the development approval; or
- another change application for the development approval.
- [11]The mechanism for commencing an application to the Court under s 78 of the Planning Act 2016 is the filing of an originating application: r 6 of the Planning and Environment Court Rules 2018 (Qld).
- [12]An originating application must name as a respondent any entity directly affected by the relief sought: r 8 of the Planning and Environment Court Rules 2018. This requirement is explained by, amongst other things, the common law doctrine of natural justice. That doctrine was explained by the High Court in Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, wherein Mason J observed at 582-3:
“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it … The reference to “right or interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.
The reference to “legitimate expectation” makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. … the concept of “legitimate expectation” extends to expectations which go beyond enforceable legal rights provided that they are reasonably based … The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case.”
(emphasis added, references omitted)
- [13]The duty to afford natural justice does not extend to persons who are simply indirectly affected as a member of the public or a class of the public generally. Rather, there must be some individual interest that directly affects the individual: Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, 584. The obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on the statutory framework. What is appropriate in terms of natural justice depends on the circumstances of the case, including, amongst other things, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, 584-5.
- [14]In relation to the relevant statutory context, I have had regard to:
- ss 78 to 81A of the Planning Act 2016;
- the definition of minor change for a development approval in sch 2 of the Planning Act 2016; and
- in light of ss 81(2)(da) and (e) of the Planning Act 2016, ss 5 and 45(5) of the Planning Act 2016.
- [15]It is apparent from this statutory context that the interests that the Planning Act 2016 permits to be considered as legitimate considerations are broad.
- [16]I have also considered the individual interests of Ms Young and Mr Giguere in the current development approval.
- [17]In my view, Ms Young and Mr Giguere have a legitimate expectation that the current development approval will not be changed by further order of the Court without them being given an opportunity to be heard about the proposed change to the current development approval. Ms Young and Mr Giguere’s individual interests that give rise to that legitimate expectation are evidenced by the combination of:
- their participation in Appeal No. 1913 of 2021; and
- their status as a named party in the judgment that granted the current development approval.
- [18]The combined effect of these matters alone is sufficient to demonstrate that they are directly affected by this proceeding and are entitled to be named as respondents to it under r 8 of the Planning and Environment Court Rules 2018. (See similar observations about the clear interest established by the participation in an earlier proceeding in Collard v Brisbane City Council [2009] QPEC 62; [2010] QPELR 6, 9 [13] and [14] per Robin QC DCJ. See also Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 41; [2007] 1 Qd R 467, 470 per Keane JA.)
- [19]Ms Young and Mr Giguere’s legitimate expectations are put beyond doubt by the substantial volume of affidavit evidence relied on by the parties. The admissible evidence adduced by the parties demonstrates that Ms Young and Mr Giguere:
- reside on the top floor of a residential building known as “Como”, which is at 53 Wyandra Street, Teneriffe and approximately 21 metres to the north-east of the subject land;
- raised concerns in Appeal No. 1913 of 2021 about:
- the height, bulk and scale of the proposed development on the subject land, and the impact of such matters on the amenity enjoyed by Ms Young and Mr Giguere; and
- the landscape design, activation and layout of facilities on the rooftop;
- actively participated in Appeal No. 1913 of 2021, including by engaging experts to give evidence; and
- waived their rights to require Wyandra JV Pty Ltd to discharge its onus on the merits at a contested hearing on the basis that the Court approve the current development approval, including its conditions.
- [20]That then begs the question: is there a strong manifestation of a statutory intention to exclude the doctrine of natural justice? (See Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, 585.)
- [21]Wyandra St Developments Pty Ltd submits that there is a clear statutory intention to exclude the doctrine of natural justice. I do not find its submissions to be persuasive.
- [22]The question is answered in the negative for three reasons.
- [23]First, an application to change a development approval is dealt with in chp 3, div 2, subdiv 2 of the Planning Act 2016. The provisions require the relevant entity to consider the information provided by the applicant and the views of those individuals defined as an “affected entity” under s 80 of the Planning Act 2016: ss 81(2)(a) and (c) of the Planning Act 2016. There is no provision that expressly precludes the responsible entity from hearing from other interested individuals. To the contrary, ss 81(2)(da) and (e) confer a broad discretion in that regard.
- [24]Second, at the time that chp 3, div 2, subdiv 2 of the Planning Act 2016 commenced, r 8 of the Planning and Environment Court Rules 2010 (Qld) contained the same requirement as r 8 of the Planning and Environment Court Rules 2018. The requirement that an originating application name all entities directly affected is a matter about which the legislative drafters of the Planning Act 2016 would have been aware. The Planning Act 2016 contains no express provision to the contrary. There is no provision identifying those entities to be named in an application for change to development approval that is made to the Court. This situation can be contrasted with rights of appeal under s 229 of the Planning Act 2016 and sch 1 of the Planning Act 2016, which contain prescriptive requirements about those individuals that must be named as respondents and those that have a right to elect to join appeal proceedings.
- [25]Third, the decisions of His Honour Judge Everson in Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53; [2016] QPELR 951 and Aveo Clayfield Pty Ltd v Brisbane City Council [2017] QPEC 60; [2018] QPELR 139 are distinguishable. They relate to an application to change a development approval under the Sustainable Planning Act 2009. Under that statutory regime, a change to a development approval that previously required impact assessment could only be made as a permissible change if the change was not 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. No such limitation has been included for an application to change a development approval under the Planning Act 2016.
- [26]What then does the doctrine of natural justice require in the circumstances of this case?
- [27]Wyandra St Developments Pty Ltd submits that is unnecessary to join Ms Young and Mr Giguere to give effect to the doctrine of natural justice. I have considered Wyandra St Developments Pty Ltd’s submissions on this issue, and I do not find them persuasive.
- [28]It is to be expected that the Court will be provided with evidence of the submissions made with respect to the original development application or another change application that was approved given the Court’s obligation to consider them under s 81(2)(b) of the Planning Act 2016. However, given the Court may not conduct its own enquiries and must decide an application on the evidence presented to it, there can be no confidence that the Court will be provided with evidence that it considers to be relevant under ss 81(2)(da) and (e) of the Planning Act 2016. Such evidence may legitimately include evidence about the views of the other individuals who were a party to the proceedings in which the Court gave the relevant development approval that is sought to be changed. Absent evidence of that nature, it is conceivable that the Court could refuse to exercise its discretion to make the change to the development approval that is sought in the originating application before it.
- [29]This supports a finding that, in an originating application made to the Court to change a development approval given or changed by the Court, it is necessary to name those individuals who were party to the original judgment to give effect to the doctrine of natural justice. Naming those individuals as a respondent to the originating application provides them with the relevant opportunity to be heard.
- [30]For the reasons provided above, I order that:
- by 4 pm on 12 June 2024, Wyandra St Developments Pty Ltd is to file an amended originating application in which it names Paul James McCarthy, Eugene Simkovic, and Sally Young and Andre Giguere, as respondents to this proceeding;
- by 4 pm on 26 June 2024, Wyandra St Developments Pty Ltd is to serve the amended originating application on each of the named respondents; and
- the matter be listed for review on 10 July 2024.