Eastpoint Mackay P/L v Mackay Regional Council

[2012] QPEC 20

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Eastpoint Mackay P/L v Mackay Regional Council & Anor [2012] QPEC 20

PARTIES:

EASTPOINT MACKAY PTY LTD
(ACN 054238993)
(applicant)

v

MACKAY REGIONAL COUNCIL
(respondent)

and

THE CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(co-respondent)

FILE NO:

BD 4765/11 & 950/2012

DIVISION:

Planning and Environment Court

PROCEEDING:

Application in pending proceedings

ORIGINATING COURT:

Brisbane

DELIVERED ON:

23 March 2012

DELIVERED AT:

Brisbane Planning and Environment Court

HEARING DATE:

16 March 2012

JUDGE:

J.M Robertson DCJ

ORDER:

That Mackay Conservation Group Inc be joined as a party to both proceedings.

CATCHWORDS:

PRACTICE AND PROCEDURE- where developer seeks to change condition of preliminary development approval by this Court- where original unsuccessful submitter appellant seeks to be joined as a party- where developer opposes leave- where Council and DERM support leave being given- whether the presence of the submitter would be desirable and just to enable court to effectively adjudicate

Legislation

Sustainable Planning Act 2009

Uniform Civil Procedure Rules 1999

Cases

Coolum Properties Pty Ltd and Bunnings Group Limited v Maroochy Shire Council & Ors [2007] QCA 299

Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 41

COUNSEL:

Mr J. Dillon for the applicant in the application (Mackay Conservation Group Inc)

Mr M. Williamson for the applicant in the originating application (Eastpoint Mackay Pty Ltd)  

Mr S. Ure for the respondent (Mackay Regional Council)

Ms J. S Brien for the co-respondent (Chief Executive Department of Environment and Resource Management) 

SOLICITORS:

Environmental Defenders Office Qld Inc for Mackay Conservation Group Inc

Herbert Geer Lawyers for Eastpoint Mackay Pty Ltd

King and Company Solicitors for Mackay Regional Council

Department of Environment and Resource Management for the Chief Executive Department of Environment and Resource Management 

1. Before the Court is an application by Mackay Conservation Group Inc (MCG) for an order pursuant to r 69(1)(b) of the Uniform Civil Procedure Rules that it be included as a party to an application by Eastpoint Mackay Pty Ltd to amend a condition of a preliminary development approval, which condition was imposed as part of a suite of conditions imposed by this Court after a lengthy unsuccessful appeal by MCG as an adverse submitter against Council’s decision to approve the development: Mackay Conservation Group Inc v Mackay City Council & Anor [2006] Q.P.E.L.R. 209.

1. The condition that Eastpoint wishes to change is condition 2 of the preliminary approval which limits the period in which it has to construct the hotel part of the development to five years from the commencement of the currency period.  That period has in fact elapsed, but by order of this Court has been extended to the determination of Eastpoint’s application by this Court. Eastpoint wishes to extend the period by three years.

1. It was revealed to me at the hearing that one of the contentions of Council is that Eastpoint’s application is misconceived and that its request should have been pursuant to s 383 of the Sustainable Planning Act 2009 (the “SPA”) that is a request to extend the period of a development approval which has lapsed. The present application is to the Court as the relevant entity pursuant to s 368 of the SPA, and is pursuant to s 367(1) of the SPA. To protect its interests Eastpoint made a request to Council pursuant to s 383(1) of the SPA but Council did not respond to the request within the required time, so Eastpoint has appealed from the deemed refusal and those proceedings are appeal no. BD950 of 2012. The file was not in court at the time of the hearing. All parties agree that if MCG’s application is successful it should also be joined as a party to the appeal which by consent of all parties will be consolidated with Eastpoint’s originating application.

1. The course of the development since the time of Judge Robin QC’s order, including the obtaining of various permits from the Council and the construction of earthworks and retaining walls, is set out in the affidavit of Mr Rex (a director of Eastpoint) filed 28 November 2011.  As he notes, construction of Stage 1 of the development was put on hold in July 2009 due to the impacts of the Global Financial Crisis.  The hotel was to be constructed within five years of the commencement of the currency relevant period and after the development of not more than 154 residential detached housing lots which as I understand were stages 1 and 2 of the development.  No housing lots have been established.

1. Eastpoint’s originating application was filed on 24 November 2011 seeking to change condition 2 on the basis that it is said to be a permissible change, and the application is opposed by both Council and DERM.

1. Eastpoint relies on an affidavit of consultant town planner Mr Schomburgk in which he largely expresses opinions directed at the requirements of s 367(1) of the SPA. A number of his opinions he acknowledges are matters of law, nevertheless by reference to his assessment of the applicable planning instruments, he opines that the proposed change does not result in a substantially different development as that term is defined in Statutory Guideline 06/09. He also expresses an opinion that taking into account the fact that the development as approved remains the same, the change “would not be likely to cause a person to make a properly made submission objecting to the change” which is from the wording of s 367(1)(c) which comes into play in relation to MCG’s application.

1. As can be seen from his Honour Judge Robin QC’s judgment, the construction of the hotel was a critical factor in the Court determining overall that the proposal, which includes a significant residential component, came within the various relevant descriptions in the planning scheme thus leading to the Court’s opinion that there was no conflict with the planning scheme.

1. MCG also raised in those proceedings the possibility that the hotel would not be built and his Honour deals with that issue very decisively at paragraphs [53]-[54] of his judgment.

1. The relevant principles that arise in applications of this kind are well known.  Rule 69(1)(b) is in these terms:

“69       Including, substituting or removing a party

(1)         The court may at any stage of 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 proceedings;

(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 proceedings.

1. Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 41 was a case in which the court permitted joinder of a party under this rule in proceedings where the party seeking joinder was the successor in title of the original applicant. At p 5 Keane JA (as his Honour then was) wrote:

“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.

In Kioa v West (1985) 159 CLR 550 at 582, Mason J, as he then was, said:

‘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 be given an opportunity of replying to it.’

In Annetts v McCann (1990) 170 CLR 595 at [598] to [599] Mason CJ and Deane and McHugh JJ made it clear that the question is not so much whether a statutory provision confers a right to be heard, but whether the provision confers “a legislative intention to exclude the rules of natural justice and in particular the common law right of the appellants to be heard in opposition to any potential finding which would prejudice their interests”.

1. Mr Williamson on behalf of Eastpoint opposes MCG’s application.  It is supported by both Council and DERM.

1. Mr Williamson makes a number of points. He says, correctly in my view, that MCG in its various affidavits in support of its application has not referred to any evidence or issue that it may wish to ventilate in the proceedings which will be limited to whether the proposed change amounts to a permissible change pursuant to s 367(1), and/or whether the request should have been under s 383(1) of the SPA which would be decided taking into account the factors set out in s 388(1).

1. He makes the point that the proposed change will not alter what was the fundamental lynchpin in Judge Robin QC’s ultimate decision and that is the construction of the hotel.  All it will do is extend the time in which Eastpoint has in which to construct the hotel in accordance with the condition by a period of three years.

1. His argument essentially is that in relation to relevant issues arising under his client’s application and appeal, there are already 2 strong contradictors, and MCG has not satisfied the onus upon it to convince me that its presence before the Court is necessary or desirable under either of the limbs of r 69(1)(b).

1. He takes comfort from Coolum Properties Pty Ltd and Bunnings Group Limited v Maroochy Shire Council & Ors [2007] QCA 299. In that case Coolum Properties, as the unsuccessful appellant, sought leave to appeal from a decision of this Court dismissing its appeal against Council’s refusal of its application for a material change of use to construct showrooms and or shops and other buildings on a site at Coolum.  Bunnings Group was to be a tenant in the premises if approval was given and the construction proceeded.  It sought leave to join the appeal and argue planning issues which would clearly be in support of the arguments to be advanced by Coolum Properties. Jerrard JA (with whom Holmes JA and Cullinane J agreed) said at p 6:

“.. I am not persuaded that the presence of the Bunnings Group Limited is just or necessary or convenient or desirable to enable this Court to adjudicate effectively on the matter under appeal.  That is whether or not the learned Judge is shown to have erred in the ultimate conclusion reached in paragraph 56 that there was a conflict between the proposal and the planning scheme.

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 does not explain why further representation why an entity with a commercial interest is necessary to allow the Court to adjudicate completely or effectively or even at all on the matter.”

1. MCG’s co-ordinator Ms Julien has sworn in her affidavit filed on 14 February 2012 that if permitted MCG would have made a submission in relation to the proposed change.

1. Mr Williamson is undoubtedly correct when he observes that this point could be made in an affidavit.  As against that, and despite the confined nature of the issues to be determined on the application appeal now, it is difficult to conceive how the actual submitter appellant MCG, undoubtedly a highly credentialed and responsible entity with a public interest agenda in the Mackay region, which conducted the lengthy and expensive appeal which resulted in a raft of conditions including condition 2, should now be shut out of these proceedings bearing in mind the observations of Keane JA in Leda Holdings.

1. Obviously the issues to be canvassed in the application and appeal will be confined only to whether or not the proposed change is a permissible change or whether the request should have been to extend the period for a development approval which had lapsed.  Given the nature of the proposed change, MCG would not be able to re-litigate the many issues canvassed before Judge Robin QC.

1. In my opinion it is difficult to see how MCG would satisfy the first limb of r 69(1)(b) but the wider ambit of the second limb, particularly given Ms Julien’s affidavit, leads me to comfortably conclude that MCG is an entity whose presence before the Court would be desirable, just and convenient to enable the Court to determine effectively and completely the issue raised on Eastpoint’s application and appeal. I think the Coolum Properties decision is readily distinguishable as Bunnings was neither a party to the original appeal and its interest was entirely commercial. In this case MCG’s interest is the public interest. Mr Ure also made the very useful observation in relation to the appeal, that one of the matters to be considered (if indeed the request should have been pursuant to s 383) under s 388(1)(b) of the SPA is “the community’s current awareness of the development approval”, an issue touched upon in the affidavits of Ms Julien. Mr Dillon in his submission also points to the community involvement in decision making provisions set out in the purposes section of the SPA. In those circumstances I will allow the application and permit Mackay Conservation Group Inc to be joined as a party to both proceedings. In those circumstances the parties are negotiating orders in both proceedings which will advance the proceedings and those orders will be made available to me in due course.