Mirvac Pacific Pty Ltd v Gold Coast City Council
[2017] QPEC 39
•14 July 2017
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Mirvac Pacific Pty Ltd v Gold Coast City Council [2017] QPEC 39
PARTIES:
MIRVAC PACIFIC PTY LTD
(appellant)v
GOLD COAST CITY COUNCIL
(respondent/applicant)and
QUEENSLAND RAIL LTD
(respondent to the application)
FILE NO/S:
4346 of 2016
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
14 July 2017
DELIVERED AT:
Brisbane
HEARING DATE:
6 June 2017
JUDGE:
Rackemann DCJ
ORDER:
The application for joinder is dismissed.
CATCHWORDS:
PLANNING AND ENVIRONMENT – PRACTICE AND PROCEDURE – application for joinder of a party – appeal against deemed refusal of request to change a development permit on the basis that it is not reasonably practicable to comply with conditions requiring works in relation to a bridge in a railway corridor, given the attitude of Queensland Rail Ltd – whether Queensland Rail Ltd’s presence before the court is necessary or would be desirable, just and convenient.
COUNSEL:
Solicitor for the appellant
C L Hughes QC with him K W Wylie for the respondent/applicant
J S Brien for the respondent to the application
SOLICITORS:
HWL Ebsworth for the appellant
Minter Ellison Gold Coast for the applicant-respondent
Clayton Utz for the respondent to the application
This is an application to join Queensland Rail Ltd (QR) as a party to the appeal. The appeal is against the Council’s deemed refusal of a request to make a change to a development permit for reconfiguring a lot to facilitate the residential subdivision of land located at Gainsborough Drive, Pimpama.
The subject land lies to the east of a railway line corridor. There are approvals for other development, including retail and community uses, on land to the west of the corridor. The Council contends that it is in the interests of orderly planning for there to be convenient vehicular, cyclist and pedestrian access provided across that corridor. There is, at present, a bridge which, subject to some improvement, would be capable of facilitating that access. The development approval contains conditions requiring, relevantly, the bridge to be upgraded, if not replaced, (condition 5A) and roadworks to be constructed leading to and from it.
The railway corridor is Crown land which is occupied by QR pursuant to a lease. The change to the development approval sought by the appellant, involves the deletion of the requirements relating to the bridge and associated roadworks. The Council seeks, by the subject application, to have QR joined as a respondent to the appeal. That application is opposed by QR. The appellant took a neutral attitude in relation to the application for joinder.
Central to the appellant’s request to delete the requirements in relation to the bridge and associated roadworks is the assertion that the conditions cannot reasonably be complied with due to circumstances beyond its control. Those circumstances relate to the necessity for an approval to be obtained from QR, as the railway manager, pursuant to s 255 of the Transport Infrastructure Act 1994 (TIA) for the works to be carried out within the railway corridor. It points to an email purportedly from Ognjen Becin, a “Senior Tenure Officer – Property” within QR, to Gavin Boundy, a “Project Manager” within QR, which was, in turn, forwarded to John Ewings, a “Senior Civil Engineer, Project Director” at ANZ Infrastructure and Environment, and which was in the following terms:
“Hi Gavin,
As previously stated, we have no objections to the work taking place and the bridge being used as an access into the development on the conditions:·The drawings need to be accepted by our technical staff.
·A licence to enter and construct is entered into for the work.
·Council accepts ownership and future maintenance of the bridge structure, not just the surface of the road. This can be done tenure wise either through a volumetric road opening over the entire bridge structure or s 253 under the Transport Infrastructure Act.
·Adding maintenance responsibility of the bridge structure to the Transport Safety Act Interface Agreement between Queensland Rail and Council.
·No survey, lodgement and registration costs to be borne by Queensland Rail.
Council cannot condition entry into the development over a piece of infrastructure they do not own or control, over land they have no approval authority over, have the use change, and then leave the ownership in maintenance of the infrastructure with Queensland Rail.
I trust this will clarify the situation.”
The appellant asserts that it cannot comply with the condition in relation to the bridge over the railway corridor in circumstances where QR would require, as a condition of granting its approval, the Council to accept ownership and future maintenance of the bridge structure, but where the Council would not agree to take on those responsibilities.
The Council’s joinder application was made pursuant to r 69(1)(b) of the Uniform Civil Procedure Rules 1999 (UCPR) which applies by reason of r 3(2) of the Planning and Environment Court Rules 2010 (PECR). It relevantly provides as follows:
“69 Including, substituting or removing party
(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 effectually and completely on all matters in dispute connected with the proceeding.”
It was submitted, for the Council, that:
1. there is a dispute as to whether the appellant ought be required to effect the improvements to the bridge which is under QR’s control and in respect of which, pursuant to the current terms of the lease, QR has some maintenance requirements or responsibilities;
2. QR’s presence is necessary for the court to assess and adjudicate upon the proposition that the present condition is incapable of compliance due to QR’s attitude; and
3. it would be desirable, just and convenient for QR to be joined in circumstances where:
(a) QR is a sublessee of the land that is improved by the bridge, the subject of the condition;
(b) QR has a contractual obligation (pursuant to the lease) to maintain the bridge in a safe and secure condition;
(c) QR’s consent is necessary before any works on the bridge may occur;
(d) it is the council’s position that access to and from the land to the west across this bridge is necessary for the proper and orderly development of the land and locality generally;
(e) as part of the required use of the bridge, the Council has imposed conditions requiring upgrade of the bridge to, inter alia, safely accommodate pedestrian and cycle traffic;
(f) it is alleged that it is QR’s conduct, in conjunction with the respondent’s position with respect to the bridge, that makes compliance with the condition 5A unreasonable;
(g) it is unclear whether QR is providing consent to works commencing on the bridge, or conditions it would impose to such consent; and
(h) it is not yet clear who constructed the bridge, and for what purpose, and QR may be in a position to assist in this inquiry.
It was further submitted, on behalf of the Council, that its joinder application rested on “two simple propositions,” namely that:
(a) first, the presence of QR will assist the court in resolving and adjudicating upon the transport issues in respect of this appeal, having regard to its interest over the railway corridor immediately adjacent to the subject land, and the bridge across that corridor, together with the importance of that access link for the orderly development of the locality; and
(b) second, and more specifically, QR will be able to assist the court in properly determining the developer appellant’s allegation that condition 5A of the subject development approval is practically incapable of compliance.
It was, on the other hand, submitted on behalf of QR, that the joinder application should be dismissed having regard to the following matters:
(a) QR was not, and is not, a referral agency for the development application;
(b) the land on which the bridge is constructed does not form part of the development application, nor the approval;
(c) any works to be undertaken on infrastructure within a railway corridor is subject to the written approval of the railway manager;
(d) there is no utility in joining QR, particularly where the court has no jurisdiction for the TIA;
(e) the court has no power to compel QR’s approval of the works in the rail reserve, nor the terms on which those works would be acceptable;
(f) participating as a party in the proceeding is likely to have significant costs, time and convenience implications for QR;
(g) the SPA does not contemplate QR being a party to the legal process; and
(h) the lawfulness of the conditions is a matter between Council and Mirvac.
It has already been observed that central to the appellant’s requested change to the approval is the proposition that the condition in relation to works in respect of the bridge cannot reasonably be complied with because of the attitude of QR in relation to the terms upon which it would be prepared to consent to the works and of the Council. The appellant would need to establish that contention if the matter were to go to hearing. Leaving to one side, for present purposes, the question about whether it would, even in that event, be successful in having the approval changed so that the approval would be permitted to stand severed of the obligations currently imposed by those conditions, there is obvious difficulty in establishing practical impossibility of compliance in the absence of the appellant having gone through the formal process of seeking QR’s approval. In that regard:
(i) it is common ground that no application for approval pursuant to s 255 of the TIA has yet been made;
(ii) if and when such an application is made it would be required to be assessed on its merits at the time;
(iii) the email, referred to earlier could only, at most, be an indication of a preliminary view and could not lawfully fetter the discretion to be exercised at the time an application is made;
(iv) even if a decision were ultimately made in line with the indication given in the email, such a decision would be subject to internal review and external appeal processes.[1]
(v) It would only be if a decision were made in accordance with the indication given in QR’s email and if the condition requiring the appellant to cause the Council to accept ownership and future maintenance of the bridge structure was upheld on any subsequent review and appeal that it would then fall to the Council to determine whether it would accept ownership and future maintenance so as to facilitate the use of the bridge for access to the proposed development.
[1]Transport Infrastructure Act 1994 (Qld) ss 485,485A, sch 3.
If, notwithstanding that the above events have not yet occurred, the appellant wishes to mount a case that compliance with the condition should, at this stage, be judged to be not reasonably possible, then it will need to establish the evidentiary basis for such a finding. That may involve a factual inquiry into QR’s position, but it does not follow that QR is an entity whose presence before the court, as a party, is either necessary or desirable, just and convenient within the meaning of r 69 of the UCPR.
As was pointed out on behalf of QR, this court has no power to order QR to give its approval under s 255 of the TIA. Senior counsel for the council acknowledged in the course of oral argument,[2] that this court could not, in this proceeding, adjudicate on whether the appellant ought be permitted to effect improvements to the bridge which is under QR’s control. More particularly, the court has no power to order QR to give an approval which would render it responsible for the ongoing ownership and maintenance of the upgraded bridge. Senior counsel for the Council did not submit to the contrary. Indeed, he acknowledged that the maintenance issue is not something the Court could rule on.[3]
[2]T1-30.
[3]T1-32.
It was submitted, for the Council, that if QR were made a party, then this court could order QR to participate in a mediation, presumably with a view to resolving the apparent disagreement between QR and the council about future ownership and maintenance responsibilities for the bridge if it were used to facilitate access, but that is not a satisfactory basis upon which to join QR. It is not this court’s role, in the context of the subject proceedings, to resolve any dispute as between the Council and QR as to which of those entities should be prepared to accept ownership and maintenance responsibilities for the bridge, should it be upgraded and used as access for the subject development. It was also pointed out that the Court could require any expert engaged by QR to participate in a joint meeting of experts. That assumes however, that there would be an issue of relevance in the subject proceeding in respect of which QR would wish to call expert evidence. As has already been observed, the Court will not be called upon to rule on which entity should be required to assume ownership and maintenance responsibilities of the bridge if it is upgraded and used as an access in relation to the subject development.
The presence of QR, as a party, is also not necessary, desirable, just or convenient in order for the court properly to consider the importance of the access link for the orderly development of the locality or to adjudicate upon the transport issues otherwise.
I accept the submission, on behalf of QR, that there is no reasonable basis for exercising the discretion to join QR as a party to the proceeding. The application for joinder is dismissed. I will hear the parties as to costs.
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