Brisbane City Council v Brook

[2014] QPEC 50

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Brisbane City Council v Brook [2014] QPEC 50

PARTIES:

BRISBANE CITY COUNCIL
(Applicant)
v
BRENNAN SCOTT BROOK
(Respondent)

FILE NO:

2739 of 2014

DIVISION:

Planning & Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

Judgment delivered ex tempore 21 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2014

JUDGE:

Everson DCJ

ORDER:

1. Application dismissed

2. No order as to costs  

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPLICATION -JOINDER OF PARTIES – where the applicant seeks declarations and enforcement orders in respect of premises owned by the respondent – where an application for joinder has been brought by a number of individuals who own land in the vicinity of the respondent – whether the proposed second respondents are directly affected by the relief sought – whether the proposed second respondents’ presence before the court is necessary - whether the presence of the proposed second respondents would be desirable, just and convenient.

COSTS – whether costs discretion enlivened.

Planning and Environment Court Rules 2008 (Qld) r 3, r 8
Sustainable Planning Act 2009 (Qld), s 457
Uniform Civil Procedure Rules 1999 (Qld) r 69

Dillon v Douglas Shire Council [2004] QPEC 50, applied

COUNSEL:

G Gibson QC and J Lyons for the applicant
M Batty for the respondent

A Skoien for the applicants for joinder

SOLICITORS:

Brisbane City Council Legal for the applicant
Thynne & Macartney for the respondent

Certus Legal for the applicants for joinder

1. The council seeks by way of an originating application declarations and enforcement orders pursuant to the Sustainable Planning Act 2009 (“SPA”) in respect of premises at 121 Besham Parade, Wynnum (“the premises”). Essentially, in the proceeding, it is alleged that the premises were not used lawfully for a “House”, but rather unlawfully for a “Multi-unit dwelling” as those terms are defined in City Plan 2000.

1. An application for joinder has been brought by a number of individuals who own land in the vicinity of the respondent (“the proposed second respondents”).  In the proceeding, the council alleges that the premises consist of a primary dwelling and a secondary dwelling.  The proposed second respondents each received an Enforcement Notice from the council in circumstances where a primary dwelling and a secondary dwelling was allegedly present on their land and being used unlawfully.  On 18 February 2013, the proposed second respondents appealed against the Enforcement Notices.  On 1 November 2013 by consent, the appeal was allowed and the Enforcement Notices were withdrawn.  On 13 November 2013 by consent, the costs of an incidental to the appeal were ordered to be paid by the council in the sum of $44,584.  As part of the resolution of the appeal, the council also gave an undertaking to the court that, in the event it subsequently sought final relief relating to the issues the subject of the appeal, a copy of any court process would be provided by it to the legal representatives of the proposed second respondents.  That is how they became aware of this proceeding.

1. In the application before me, the proposed second respondents submit that they ought to be joined as respondents in the proceeding and further that their presence is both necessary and desirable, just and convenient to enable the court to adjudicate effectively and completely on all matters in dispute connected with the proceeding.  Both the council and the respondent oppose the application.

1. The application involves a consideration of Rule 8 of the Planning and Environment Court Rules 2008 (“PECR”) and Rule 69 of the Uniform Civil Procedure Rules 1999 (“UCPR”) which applies by virtue of Rule 3 of the PECR. Rule 8 of the PECR states:

“(1) An originating application must name as a respondent the entity directly affected by the relief sought.

(2) A notice of appeal must name as a respondent or co-respondent the entity that is the respondent or co-respondent under an Act.”

1. In Dillon v Douglas Shire Council [2004] QPEC 50, the effect of Rule 8 was considered by Skoien SJDC in the following terms:

“The word ‘directly’ is a common word in the English language and, to my mind, it is well understood.  Relevantly, it means ‘immediately’ or ‘straight away’.  If an originating application seeks an order that a person do something or refrain from doing something, that person is directly affected.  Here, the council is directly affected because immediately the court declares the meaning of the provisions, the council will be bound to administer them in a way consistent with the interpretation and declarations.

However, the declarations which the court may make, if it makes any, will not require [the applicant] immediately to do or not to do anything.”

1. The same may be said of the proposed second respondents in the application before me.  They are not “directly affected by the relief sought” and there is no obligation under Rule 8 to name them as respondents in this proceeding.  Accordingly, the first ground of relief sought by the proposed second respondents fails. 

1. I turn now to the relief sought pursuant to rule 69 of the UCPR. Relevantly, rule 69 states:

“(1) The court may at any stage of a proceeding order that:
           …

(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 effectively and completely on all matters in dispute connected with the proceeding.”

1. It is submitted on behalf of the proposed second respondents that the presence of the proposed second respondents before the court is necessary to ensure that there is a proper contradictor in the proceeding.  There is, however, already a proper contradictor, namely the respondent.  In the event that the respondent compromises the proceeding, there will be no contradictor and there will be no basis for any declarations.  Essentially, the court will not make a declaration on a hypothetical matter.  To the extent the proposed second respondents submit that their presence is necessary to ensure that a declaration adverse to their interests is not made, the argument ignores the realities of the circumstances under which the court conceivably could make a declaration. The basis put forward is, in my view, without foundation, and I reject it. 

1. Turning to the submission that the presence of the proposed second respondents before the court would be desirable, just, and convenient to enable the court to adjudicate effectively and completely on all matters in dispute, it is appropriate to firstly consider whether there is currently any dispute in existence between the council and the proposed second respondents.  It is submitted on their behalf that the appeals against the Enforcement Notices were withdrawn by consent in circumstances where the court was not called to adjudicate on the dispute between the parties. It is submitted that the dispute therefore remains unresolved. However, the fact remains that the order of the court of 13 November 2013 brought this dispute to an end.  There is no evidence before me that the council has a present intention to re-litigate the issues in dispute in that appeal.  There is currently no dispute involving the proposed second respondents connected with this proceeding. 

1. Not only does the application presuppose a scenario whereby the council is currently seeking relief against the proposed second respondents but it does so in circumstances where it is submitted that there is no material difference between the circumstances of each of the respective proposed second respondents and the respondent.  The precise circumstances of each of the proposed second respondents and their premises are not before the court, however. The allegations of unlawfulness the subject of this proceeding depend upon a number of interrelated definitions of City Plan 2000 which may or may not all apply to the different proposed second respondents and the particular circumstances of the use of their properties.  I simply cannot be satisfied on the material before me that it would be desirable and convenient for the court to order their presence in this proceeding.  Conversely, there will be an inevitable increase in the time taken to hear and determine this proceeding should the proposed second respondents be joined as parties.  This will inevitably lead to an increase in costs for both the council and the respondent.  This, in my view, is a most relevant consideration in the exercise of my discretion as to whether the presence of the proposed second respondents would be just in the circumstances.  Furthermore, there is no impediment to them bringing an originating application seeking declarations on matters of law relevant to their particular circumstances.

1. I therefore reject the application to the extent it is founded upon rule 69(1)(b)(ii).

1. I dismiss the application.

1. Both the council and the respondent apply for the costs of and incidental to the application for joinder pursuant to section 457 of SPA. It is submitted by both the council and the respondent that a costs order is justified having particular regard to section 457(2)(a) which states that the court may have regard to the relative success of the parties in the proceeding; and pursuant to section 457(2)(d) which states that the court may have regard to whether a party commenced or participated in a proceeding without reasonable prospects of success. The proposed second respondents oppose the making of a costs order. On their behalf, Mr Skoien emphasises that the costs of the application are in the discretion of the court and do not necessarily follow the event. He further emphasises that the particular subparagraphs I have referred to are simply matters the court may have regard to and that it is clear in section 457(3) that the discretion of the court in respect of the awarding of costs is unlimited.

1. I accept the submissions of Mr Gibson QC that the application was entirely without merit in respect of the reliance on the arguments centred on rule 8 of the PECR and rule 69(1)(b) of the UCPR so far as it related to the need for an additional contradictor. I am of the view, however, that the balance of the application was at least arguable when the term “all matters in dispute connected with the proceeding” is considered in the context of the outcome of the appeal against the Enforcement Notices. It is not without relevance that the council undertook to the court in the course of the resolution of this appeal that if it subsequently sought final relief relating to the issues the subject of the appeal a copy of any court process would be provided by it to the legal representatives of the proposed second respondents.

1. The fact that the council gave this undertaking and then gave the legal representatives of the proposed second respondents a copy of the originating application giving rise to the application before me suggests that the council was of the view that there was some dispute arguably still dormant concerning the proposed second respondents and that this proceeding was sufficiently connected with it to justify it taking the course it did pursuant to the undertaking it gave.  In these circumstances I’m of the view that it would unduly harsh to order costs on the basis sought when the arguable existence of a dispute connected with this proceeding was to some extent encouraged by the acts of the council referred to above.  In all of the circumstances I decline to exercise my discretion to award costs of and incidental to the application.