Australian Conservation Foundation v Gold Coast City Council

[2000] QPEC 61

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Australian Conservation Foundation & ors v Council of the City of Gold Coast & Ors [2000] QPE 061 and Interpacific Resorts v Gold Coast City Council [2000] QPE 062
PARTIES:	Australian Conservation Foundation Gold Coast Inc, Gold Coast & Hinterland Environment Council Inc, Sheila Davis, David William Spain and Rodney Normal Stonebridge (Appellants)
v
Council of The City of Gold Coast (Respondent)
Interpacific Resorts (Australia) Pty Ltd (Co-Respondent)
State of Queensland (Co-Respondent by election)
and
Interpacific Resorts (Australia) Pty Ltd (Appellant)
v
Gold Coast City Council (First Respondent)
State of Queensland (Second Respondent)
Australian Conservation Foundation Gold Coast Inc (Third Respondent)
Gold Coast and Hinterland Environment Council Inc (Fourth Respondent) Sheila Davis (Fifth Respondent)
David William Spain (Sixth Respondent)
Rodney Norman Stonebridge (Seventh Respondent)
FILE NO/S:	1094 of 1998 And 601 of 2000
PROCEEDINGS:	APPEALS
COURT:	PLANNING & ENVIRONMENT COURT OF SOUTHPORT
DELIVERED ON:	8 SEPTEMBER 2000
HEARING DATE:	28 August 2000
JUDGE:	NEWTON DCJ
CATCHWORDS:	Request to change conditions of an approval – s 3.5.33 (3) Integrated Planning Act 1997 requiring consent of owner of land – meaning of owner; Rule 8(1) of the Planning and Environment Court Rules, whether joinder of parties other than those parties to the request to change conditions is required; whether public notice of request to change conditions is required.
COUNSEL:	File No 1094 of 1998
Mr R N Stonebridge (in person) for the Appellants Mr R S Litster for the Respondent Mr P J Lyons QC for the Co-Respondent Miss Y Went (Sol) Co-Respondent – by election
File No 601 of 2000
Mr P J Lyons QC for the Appellants Mr R S Litster for the First Respondent Miss Y Went (Sol) for Second Respondent Mr R N Stonebridge for the 3rd to 7th Respondents
SOLICITORS:	File No 1094 of 1998
McCullough Robertson for the Respondent Hopgood Ganim for the Co-Respondent Crown Law for the Co-Respondent by election

IN THE PLANNING AND ENVIRONMENT COURT

HELD AT SOUTHPORT

QUEENSLAND

APPEAL No 1094 of 1998

BETWEEN

AUSTRALIAN CONSERVATION FOUNDATION GOLD COAST INC,
GOLD COAST & HINTERLAND ENVIRONMENT COUNCIL INC,
SHEILA DAVIS, DAVID WILLIAM SPAIN AND RODNEY NORMAN

STONEBRIDGE

Appellant

AND

COUNCIL OF THE CITY OF GOLD COAST

Respondent

INTERPACIFIC RESORTS (AUSTRALIA) PTY LTD

Co-Respondent

STATE OF QUEENSLAND

Co-Respondent By Election

APPEAL No 601 of 2000

BETWEEN

INTERPACIFIC RESORTS (AUSTRALIA) PTY LTD

Appellant

AND

GOLD COAST CITY COUNCIL

First Respondent

STATE OF QUEENSLAND

Second Respondent

AUSTRALIAN CONSERVATION FOUNDATION GOLD COAST INC

Third Respondent

GOLD COAST AND HINTERLAND ENVIRONMENT COUNCIL INC
Fourth Respondent
SHEILA DAVIS

Fifth Respondent

DAVID WILLIAM SPAIN

Sixth Respondent

RODNEY NORMAN STONEBRIDGE

Seventh Respondent

REASONS FOR JUDGMENT – NEWTON D.C.J.

Delivered the 8th day of September, 2000

[1] At a directions hearing on 4 August, 2000 this matter was listed on 28 August to

enable the Court to consider whether relevant statutory and regulatory requirements

had been complied with to confer jurisdiction on the Court to determine the request to

change certain conditions of the approval granted on 26 May 1999.

[2] The applicant, Interpacific Resorts (Australia) Pty Ltd, by application filed on 3

August, 2000 seeks to have changed certain conditions imposed by Order of this

Court in Appeal No. 1094 of 1998. That application identified only the local

government as a respondent. Subsequently, an amended application was filed on 23

August, 2000 in substantially the same terms as that filed on 3 August but identifying

as respondents to the application all the parties nominated as such in Appeal No. 1094

of 1998. This amendment effectively deals with one of the points raised on 4 August

in relation to the inclusion of all relevant parties in the current application to change

conditions.

[3] The remaining specific issues to be dealt with at this time are as follows:-

(a) compliance with s 3.5.33 (3) of the Integrated Planning Act 1997 (IPA) which

requires the consent of the owner of the land;

(b) whether rule 8 (1) of the Planning and Environment Court Rules requires the

joinder of other parties; and

(c) whether it is necessary to give public notice of the application to change

conditions.

[4] As to (a), a request to change conditions must contain the owner’s consent if the

person wanting to change the conditions is not the owner of the land to which the

approval attaches (s 3.5.33 (3) of IPA). The term “owner” of the land is defined in

Schedule 10 as meaning the person for the time being entitled to receive the rent for

the land or would be entitled to receive the rent for it if it were let to a tenant at a rent.

[5] The Department of Natural Resources, on behalf of the State of Queensland, has by

document dated 8 August, 2000 consented to the application to change conditions. A

State Tenure Search dated 21 August, 200 shows the Council of the City of Gold

Coast as the registered lessee and that a sub lease has been granted to Runaway Bay

Centre Pty Ltd. The latter is, I was informed by Counsel for the first respondent, a

company closely associated with the applicant. In any event, the necessary consent of

the owner has now been obtained and the request to change conditions contains that

consent, thus fulfilling the requirements of s 3.5.33 (3) of IPA.

[6] As to (b), rule 8 (1) of the Planning and Environment Court Rules 1999 provides that

an originating process, other than for an appeal under IPA, must name as respondents

the persons directly affected by the relief sought in it. The belated inclusion as parties

to the present application of all those persons who were parties to the original appeal

removes one area of concern. However, it is suggested by the seventh respondent,

Mr Stonebridge, that there may be some persons or organisations that may be so

affected by the proposed changes to conditions to require that they be joined. No

specific person or organisation has been identified, although it is said that a

neighbouring football club and some nearby child care centres may suffer economic

consequences as a result of the changed conditions.

[7] The appropriate test to apply in determining whether a party may be added to an

existing action is: will that persons rights against or liabilities to any party to the

action in respect of the subject matter of the action be directly affected by an order

which may be made in the action. (see PEGANG MINING CO LTD v CHOONG

SAM [1969] 2 MLJ 52 at 55-56 per Lord Diplock, approved by the Full Court

(General Division) of the Federal Court, Lockhart, vonDoussa and Sackville JJ in

NEWS LIMITED AND OTHERS v AUSTRALIAN RUGBY FOOTBALL LEAGUE

LIMITED AND OTHERS (1996) 64 FCR 410 at 524-525)

[8] In my opinion it is not possible to conclude that the unspecified persons or

organisations alluded to by Mr Stonebridge will have their rights or liabilities affected
by the orders sought in the application to change conditions. As Lord Diplock

pointed out in PEGANG MINING, the mere fact that a person is likely to be better off

financially if a case is decided one way rather than another is not a sufficient ground

to entitle that person to be added as a party.

[9] The only persons whose rights may be affected by a variation of the conditions of

approval are those who were parties to the appeal to this Court. They are now parties

to the present proceedings. Rule 8 of the Planning and Environmental Court Rules

1999 does not set out a requirement for the conferral of jurisdiction on the Court; such

requirements are contained within the Local Government (Planning and

Environment) Act 1990. There is no warrant for reading the provisions of s 3.5.33 of

IPA restrictively. I accept that the legislative provision as enacted shows a clear

intention to create a broad power.

[10]      As to (c), it should be noted that the provisions of s 3.5.33 of IPA do not require

the giving of public notice in order to confer jurisdiction on the Court to deal with an

application to change conditions of an approval. Indeed, it would be surprising if

such an obligation were to be found within the section because the entity (the local

government) is required to decide the request for change within 20 business days after

receiving the request. Although the Court is not required to decide a request for

change within this (or any) time frame, no provision for the giving of public notice of

such request to the Court is made by the section.

[11]      The circumstances in which public notice must be given have been

comprehensively identified in IPA. To require this Court to reconsider the adequacy

of the procedure set up by the legislation may well result in unnecessary uncertainty.

(See HANNAY v BRISBANE CITY COUNCIL (1997) 94 LGERA 212).

[12]      I conclude, then, that all necessary statutory and regulatory requirements have

now been fulfilled to confer jurisdiction on the Court to determine the request to

change the conditions of the approval.