Landel Pty Ltd and Landrex Pty Ltd v Redland Shire Council and Lipoma Pty Ltd

[2000] QPEC 82

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Landel Pty Ltd & Anor v. Redland Shire Council & Anor [2000] QPE 082
PARTIES:	LANDEL PTY LTD (ACN 010 889 193) as Trustee of the Lancini Family Discretionary Trust and LANDREX PTY LTD (ACN 010 740 191 As Trustee of the IDL Investment Trust Applicants and REDLAND SHIRE COUNCIL First Respondent And LIPOMA PTY LTD (ACN 002 203 581) Second Respondent
FILE NO/S:	No 4020 of 2000
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	21 December 2000
DELIVERED AT:	Brisbane
HEARING DATE:	13 December 2000
JUDGE:	Judge Quirk
ORDER:
CATCHWORDS:
COUNSEL:	Mr C.Hughes for the aaplicants Mr S.Ure for the first respondent Mr S.Doyle SC and Mr M.Rackemann for the second respondent
SOLICITORS:	Suthers Taylor for the applicants King and Company for the first respondent Minter Ellison for the second respondent

1. In this matter declaratory and other relief is sought in respect of an application for a

   development permit for a material change of use of land at Bunker Road, Victoria

   Point. The relevant application was made by the second respondent, Lipoma, and approved by the council. The applicants are the owners of land on the opposite side

   of Cleveland-Redland Bay Road which is in the process of development.

2. The applicants are concerned at the impact upon their development of several of the

   features of the Lipoma proposal and the merits of these concerns were the subject of

   affidavit material placed before the court. However, for the purpose of dealing with

   the application it is unnecessary to go into these factual matters.

3. The specific relief sought is set out in paragraphs 1 to 7 of the originating

   application. For convenience, the orders sought can be grouped into a number of

   categories.

4. At the outset senior counsel for Lipoma pointed out that it would be futile to make

   the declarations sought as no direct attack had been made upon the development

   approval granted to Lipoma by the council. Even though Lipoma has lodged an

   appeal against some of the conditions imposed by the council, the relevant approval

   has gained the status of a “development approval” by reason of section 3.5.19 of

   the Integrated Planning Act even though its effect is suspended pending the

   decision of the appeal (section 3.5.19(c)).

5. It is the development approval which confers rights to develop a particular piece of

   land and s.4.1.22 which deals with the making of orders about declarations provides

   in (2):-

   “However, if the order amends or cancels a development approval, the court may only make the order if the court is satisfied the approval was obtained by fraud by the applicant.”

   There was, in this case, no suggestion of fraud. While it may be that this provision

   deterred any direct attack on the development appproval it has given rise to some

   difficulty in construction and fortunately it is unnecessary to rely upon it (or the

   issue of futility) in deciding this case.

6. I will deal separately with the various categories of declarations sought.

1.  Whether the development approval was one which was code assessable (as the

council treated it).

1. The Lipoma land is, in the relevant town planning scheme (a “transitional scheme”

   under Chapter 6 of the Integrated Planning Act) included in the Shopping zone.

   Part of the land was included in that zone following approval of an application to

   amend the town planning scheme by a court order obtained by Lipoma’s

   predecessor in title Chin Hawk. A number of conditions attached to that rezoning

   approval, and the development proposed by Lipoma, is not entirely consistent with

   those conditions (e.g., C1 requires that the development be carried out in

   accordance with plans different to those reflecting Lipoma’s intended

   development).

2. In December 1999 Lipoma applied to the council for a development for approval of

   a material change of use and for preliminary approval for building works. While,

   within the Shopping zone development of the type proposed by Lipoma, is “as of

   right” under column III (a), the proposal did not comply with certain performance

   standards under the transitional planning scheme. This took the matter outside the

   realm of “Self assesable “ development and a development permit for a material change of use and a preliminary for building work was required. The performance

   standards in respect of which relaxation was required related to car parking and

   landscaping areas.

3. The application was one to which Division 8 of Chapter 6 of the Integrated

   Planning Act (particularly S.6.1.28) applied. The application was not one, which,

   under the repealed Local Government (Planning and Environment) Act required

   public notification. Such a requirement was, under that act, confined to proposals

   where rezonings (section 4.3(iv)) or town planning consent (s.4.12(iii)) were

   involved. Accordingly, by reason of s.6.1.28(iii)(a) the relevant application was

   one which required code assessment only. This was the position which the council

   accepted.

4. The applicants here argued that Lipoma was required to apply to change the

   conditions attached to the Chin Hawk rezoning because they remained attached to

   the land by reason of s.6.1.24(ii)(a) and Lipoma’s proposal is inconsistent with

   those conditions. The applicant further argued that the only options available to

   Lipoma are found in s.6.1.35A which deal with applications to change conditions of

   rezoning approvals under the repealed Act. Sub-section (2) provides

   “A person may –

(a)	make a development application to achieve the change; or
(b)	apply under s.4.3(1) or 4.15(1) of the repealed Act to

change the conditions.”

The applicants went on to contend that, either way, the giving of public notice and

impact assessment was called for.

1. In my view, the latter contention is misconceived and my reasons for holding that

   view are based on s.6.1.35B which provides:-

   “A development approval given under this Act prevails, to the extent

   the approval is inconsistent with a condition –

(a)	of an approval given under s.4.4(v) of the repealed Act; or
(b)	decided under s.2.19(iii) of the repealed Act.”

1. Accordingly, the Act contemplates the making (and approval) of an application

   which is not consistent with conditions attached to a rezoning approval under

   s.4.4.(v) of the repealed Act (as the Chin Hawk conditions were). By reason of

   s.6.1.35B the relevant development approval prevails to the extent of such

   inconsistency. The development approval made by Lipoma was applied for and

   approved under the Integrated Planning Act and as I have earlier indicated, public

   notification was not required and it was an application which required code

   assessment only. Accordingly the declarations sought in this context can not be

   made.

2.     Declarations in respect of conditionC21 of the Chin Hawk approval

1. For reasons set out above, I do not believe that it was necessary for Lipoma to rely

   on condition C21 which provided:-

   “These conditions imposed by council on its approval are binding on successors in title unless otherwise agreed in writing between the appellate and the respondent or unless amended or superceded by subsequent application for rezoning or staged rezoning pursuant to the Local Government (Planning and Environment) Act 1990 as amended.”

   The same can be said of the assertions made that what Lipoma proposes is more

   than a minor modification of the Chin Hawk approval.

3.     As an alternative to declarations regarding the need to change the Chin Hawk

conditions, the applicants sought relief in the form of a restraining order

preventing Lipoma and the Council from proceeding with the former’s appeal

against certain of the conditions imposed in the relevant approval. As a further

alternative, an order that the applicants be added as respondents to this appeal was

sought.

1. On the material before me there is no basis shown for the injunction sought. Such a

   remedy could be given only pursuant to s.4.1.22 and would need to be

   consequential to a declaration made under s.4.1.21. As I have indicated, no such

   declaration is warranted in this case.

2. As to the joinder sought, there is nothing in the Integrated Planning Act which

   would appear to give the applicants any right to be:

§	Identified as a co-respondent to the appeal
§	To elect to become such a co-respondent
§	To be otherwise heard as a party to the appeal.

1. Nor do the rules provide any comfort to the applicants. The Planning and

   Environment Court Rules (by reason of rule 3(2)) pick up rule 69(1)(b) of the

   Uniform Civil Procedure Rules which provides

“(1)	the court may at any stage of a proceeding order that –
…
(b) any of the following persons to be included as a

party –

(i)         person whose presence before the court is necessary to enable the court to adjudicate effectually and completely in 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 proceeding.”

1. I am not satisfied on the material before me that the applicants fall into either of

   those categories. The principles relevant to such a question are conveniently

   discussed in the recent decision of the Court of Appeal in Interchase Corporation

   Limited v. FAI General Insurance Company Limited 2000 2 Qd.R. 301.

4.     Finally the applicants sought a declaration that

“any determination made in Appeal No D3486 of 2000 with respect to the second respondents lawful point or points of discharge in respect of the subject land cannot bind the applicants unless they are parties to the said appeal.”

1. As was pointed out by senior counsel for Lipoma, if the applicants are not parties to

   the appeal, no issue estoppel can arise in respect to them. Furthermore, the point

   was well made (and supported by ample authority) that-

   “Whatever order is made by the court in the appeal, while not binding non-parties in the sense of requiring them to do or to refrain from doing things, or controlling what they can or cannot do, it is conclusive as against the applicants as indeed as against the rest of the world. A judgment is conclusive as to the existence of the order, its state and legal consequences. In that sense it does bind them.”

2. I accept these submissions and I am not prepared to make such a declaration.

3. For the reasons given, the onus of showing that the applications sought should be

   made has not been discharged and the application must be dismissed.

   §