Deepsound Pty Ltd v Maroochy Shire Council

[2009] QPEC 59

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 308 of 2006

DEEPSOUND PTY LTD ACN 007 043 932	Appellant
and
MAROOCHY SHIRE COUNCIL	Respondent

MAROOCHYDORE

..DATE 19/06/2009

ORDER

CATCHWORDS

Integrated Planning Act section 3.5.33 - Developer appeal instituted in name of company which made underlying development application - site sold before application decided - purchaser's agent applied for change of conditions - appeal instituted against council's refusal - agent substituted as appellant.

HIS HONOUR: The Court makes an order in terms of the initialled draft which removes the appellant, Deepsound Pty Ltd, from the proceeding under rule 69(1)(a) of the Uniform Civil Procedure Rules 1999, and includes Ken Hicks & Associates Pty Ltd as the appellant pursuant to rule 69(1)(b).

The appeal is against the Council's refusal, in 2006, of an application made by the new appellant for a change of conditions to a development approval which the Council have granted in 2002 under section 3.5.33 of the Integrated Planning Act 1997.

The original development application had been made to the Council by Deepsound Proprietary Limited. By the time the Council decided it, the land had been sold to a company called Paradise Way Proprietary Limited, which has used Ken Hicks & Associates Proprietary Limited as its agent.

It's clear from material before the Court that in the transaction between the new appellant's client and the appellant, as shown in the record, arrangements were made to ensure that the benefit of Deepsound's development application and any approvals resulting therefrom should belong to the purchaser. That material obviates some difficulties that could have arisen.

I'm satisfied that the institution of the appeal in the way that happened occurred in good faith, and, doubtless, on an assumption that Deepsound had authorised the use of its name in proceedings. That may not have been the case, this material before the Court indicating that, having severed its connection with the land many years ago, Deepsound is concerned that, in particular, it might be exposed to costs in some way.

I can understand that the judgment was made that, although Ken Hicks & Associates had applied for conditions to be changed, the appropriate entity to complain when the Council rejected the application for a change of conditions was the original development applicant. I think that is not the case.

The Council raises no objection to the proceeding being regularised. Ms Rourke, in support of the application, relies as authority - if any were necessary - on what McPherson JA said in MAM Mortgages Pty Ltd (in liquidation) v Cameron Brothers [2002] QCA 330 particular at paragraph 31. So, order as per initial draft.

…

HIS HONOUR: The Court makes an order in terms of the initial draft, which incorporates as attachment "A", a conditions package appropriate to the changed conditions of development.

The council is pleased to see changes which reduce the number of storeys and the height to bring the development within what's permitted by the new planning scheme, which has come into effect since the making of the development application.

The Court understands that what was contentious between the parties related to infrastructure charges, which are now to be made on a basis thought to be consistent with - to the planning scheme. The Court has no difficulty in making the order as the parties jointly request.

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CaseChat Overview and Summary

Deepsound Pty Ltd originally applied to the Maroochy Shire Council for development approval under section 3.5.33 of the Integrated Planning Act 1997. The site was subsequently sold to Paradise Way Proprietary Limited, which applied for a change to the conditions of the approval through its agent, Ken Hicks & Associates Pty Ltd. The Council refused the change, leading to an appeal by Ken Hicks & Associates Pty Ltd, which was instituted in the name of Deepsound Pty Ltd. The court substituted Ken Hicks & Associates Pty Ltd as the appellant in the proceedings.

The primary legal issue before the court was whether the appeal could be maintained by Ken Hicks & Associates Pty Ltd, given that Deepsound Pty Ltd was the original applicant for the development approval. The court needed to determine if the substitution of the appellant complied with the relevant procedural rules and if it was appropriate under the circumstances. The court also had to consider whether the appeal should proceed given the change in ownership and the implications for the original applicant.

The court found that the substitution of Ken Hicks & Associates Pty Ltd as the appellant was permissible under the Uniform Civil Procedure Rules 1999. The court accepted that the appeal was instituted in good faith and that Deepsound Pty Ltd had made arrangements to ensure the benefit of the development application would transfer to the purchaser. The court noted that Deepsound Pty Ltd had severed its connection with the land and had concerns about potential costs. The court concluded that the original applicant was not the appropriate entity to challenge the Council's refusal to change the conditions. The Council did not object to the substitution of the appellant, and the court found that the appeal could proceed.

The court ordered that Ken Hicks & Associates Pty Ltd replace Deepsound Pty Ltd as the appellant and approved the changed conditions of development. The new conditions reduced the number of storeys and the height of the development to comply with the new planning scheme. The court accepted that the infrastructure charges would be based on a method consistent with the planning scheme, resolving the contentious issue between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established