Nonmus v Sunshine Coast Regional Council

[2011] QPEC 147

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Nonmus & Anor v Sunshine Coast Regional Council [2011] QPEC 147

PARTIES:

MAXWELL BRIERLY NONMUS AND ELFIE ANNETTE NONMUS
(Appellants)

AND

SUNSHINE COAST REGIONAL COUNCIL
(Respondent)

FILE NO/S:

88/11, 218/11

DIVISION:

Planning and Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

16.12.11

DELIVERED AT:

Maroochydore

HEARING DATE:

9.12.11

JUDGE:

Robertson DCJ

ORDER:

Unitywater be joined as a Co-Respondent to the appeal

CATCHWORDS:

PROCEDURE: where applicant distributor-retailer seeks to be joined as a co-respondent to an appeal which concerns in part a challenge to water supply/waste water services infrastructure conditions- whether applicant’s presence as a party would be just, convenient and desirable to assist the Court to adjudicate effectively on matters in dispute-whether r 3 of the Planning and Environment Court Rules covers the field and r 69 of the Uniform Civil Procedure Rules 1999 does not apply because the applicant has no statutory right to join the proceeding

PLANNING: where applicant has potential liability for infrastructure costs pursuant to the South East Queensland (Water Distribution and Retail Restructuring) Act 2009, where infrastructure condition to development permit relating to water supply and waste water is impugned by Notice of Appeal- where applicant is by law created a concurrence agency after 1.7.10 but its function as such is mandatorily  delegated to the Council until 30.6.13

Legislation

Integrated Planning Act1997

South East Queensland (Water Distribution and Retail Restructuring) Act 2009

Sustainable Planning Act2009

Uniform Civil Procedure Rules 1999

Cases

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

Sushames & Ors v Pine Rivers S.C. & Ors. [2006] QCA 171

APPEARANCES: 

Mr J. Lyons (Counsel instructed by Unitywater Legal Services) for the applicant Unitywater

Mr A. Williams (solicitor from p&e Law) for the appellant

Mr M. Birks (solicitor from S.C.R.C Legal Services) for the respondent

1. The Northern South-East Queensland Distributor-Retailer Authority trading as Unitywater ABN 89 791 717472 (“Unitywater”) seeks leave pursuant to r 69 Uniform Civil Procedure Rules (1)(b (“UCPR”) to be included as a co-respondent in this consolidated appeal concerning a development proposed by the appellants at 7 and 9 Ballinger Road, Buderim.  The application is opposed by the appellant.  The attitude of the Council is to support the application, albeit with some ambivalence.  Council did not seek to make substantive submissions at the hearing last Friday.

Brief history of the development

1. The appellants have a number of development permits in relation to the site.  The history of the various MCU applications dating back to 2000 is set out in the Notice of Appeal filed 4.10.11 (No. 218/11).  The development proposed in the Buderim Village Centre is for a mixed commercial and accommodation units complex.

1. On the 18 March 2009 Council issued a Negotiated Decision Notice which included infrastructure conditions.  Condition 33 of the Decision Notice provided for an 8.5 metre height limit for the development.  The permit included an Advice Number 1 requiring the appellants to submit a separate application in order to achieve the height of the building as proposed.

1. The appellants accordingly applied to the Council for “a material change of use permit for additional building height (no additional storeys)”.  It is common ground that this application was for effectively the same development permitted by the 2009 permit except for the increase in building height.

1. On the 8 December 2010 Council approved the height increase to 12 metres, but imposed conditions, some of which were different to the conditions attached to the 2009 permit.

The appeals

1. In relation to the 2010 permit, the appellants filed an Appeal No. 88 of 2011 on 9 May 2011 against Condition 7 of the Permit, which is relevantly in the following terms:

“7.The applicant must pay contributions towards trunk infrastructure in accordance with the following Planning Scheme Policies:

(a)Planning Scheme Policy DC1 – Water Supply and Sewerage Infrastructure;

…

(d)Planning Scheme Policy DC4 – Storm Water Quality;

…

(g)Planning Scheme Policy DCA – Administration.”

1. The argument articulated in the Notice of Appeal is that the increase in height does not have any material effect upon the scale or intensity of the use proposed for the premises, and that there is no increased demand on infrastructure to warrant the imposition of a condition in different terms to the infrastructure condition attached to the 2009 permit.

1. On the 5 August 2011 (i.e. after the filing of Appeal No. D88/2011), the appellant made a request to Council pursuant to s 369 of the Sustainable Planning Act2009 (“the SPA”) to change Condition 33 of the 2009 permit so as to allow the construction of a building to 12 metres. Not surprisingly, given the Advice Note 1 in the 2009 permit, Council refused the request and the appellants then appealed against that refusal by Notice of Appeal filed the 4 October 2011 (218/2011).

1. The appeals were consolidated by Order of this Court made 21 October 2011 and some directions were made including an order for mediation to be held on or before the 25 November 2011.

The application

1. The present application was filed on the 5 December 2011.  The parties had notice of Unitywater’s desire to be joined and the mediation has been adjourned.

1. The grounds for the application are stated as follows:

“1.Unitywater is a distributor-retailer for its geographical area established under s 8 of the South East Queensland Water Distribution and Retail Restructuring Act 2009 (The SEQ Water Act).

2.The geographic area of Unitywater includes the local government area of the Respondent (the Council).

3.Pursuant to the SEQ Water Act, Sustainable Planning Act2009 (the SPA), and the Sustainable Planning Regulation 2009, Unitywater is, inter alia:

(a)responsible for providing water services and waste water services for its geographic area;

(b)a concurrence agency for certain development applications with these functions delegated to the local government; and

(c)responsible for infrastructure contributions for water and waste water.

…

8.On 15 November 2011 the Council provided reasons for refusal in relation to P&E Court Appeal No. 218 of 2011.  In particular, reason for Refusal 3 provided that:

‘… if condition 33 is changed in accordance with the request, the request should be approved subject to additional conditions including new conditions with respect to the payment of infrastructure contributions.’

Joinder

9.Having regard to the above, the issues in dispute in the appeals involve infrastructure contributions including infrastructure contributions for water services and waste water services provided by Unitywater.

10.Accordingly, Unitywater has a material interest in respect of the issues in dispute in the appeal to the extent they relate to infrastructure contributions for water services and waste water services provided by Unitywater. …”

1. Essentially these grounds are supported by a short affidavit by Unitywater’s solicitor, Mr Milles, who swears in Clause 5 of his affidavit filed 5 December 2011:

“5.Having regard to the notices of appeal for these matters and the Council’s reasons for refusal, it appears that Unitywater is responsible for assisting the Court in determining the water and wastewater infrastructure contributions the subject of these appeals.  As such, Unitywater is of the view that its presence before the court would assist in the determination of the issues in dispute in this proceeding.”

1. The applicant relies on r 69(1)(b) of the UCPR which provides:

“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.”

The arguments advanced at the hearing

1. Mr Williams, on behalf of the appellant, argues that as Unitywater was not a concurrence agency at the time of the making of either application, it is not entitled to be joined as a party, as it had no such entitlement under the SPA or the Integrated Planning Act1997 (the IPA) or the Planning and Environment Court Rules (the PECRs). He argues therefore that r 3 of the PECRs does not permit Unitywater to have recourse to r 69 UCPR. Rule 3 of the PECRs is in these terms:

“3.        Application of rules

(1)These rules apply to proceedings in the court.

(2)If these rules do not provide for a matter in relation to a proceeding, or proceedings, in the court and the rules applying in the District Court would provide for the matter in relation to a proceeding, or proceedings, in the District Court, the rules applying to the District Court apply for the matter in the court with necessary changes.”

1. He is correct that at the relevant date of both development applications Unitywater was not a concurrence agency for the purpose of either development application. This is because the subject development applications were made prior to the 1 July 2010. The Sustainable Planning Regulation Schedule 7 was amended on the 1 July 2010 by ss 2(1)(d), 71 and 72 of the SEQ Water Act to create, for the first time, the role of distributor-retailers as concurrence agencies. Until 30 June 2013 the functions of distributor-retailers such as Unitywater as concurrency agencies are mandatorily delegated to the Council pursuant to s 53(5)(a)(i) of the SEQ Water Act. Council was not required to provide Unitywater with a copy of the Notice of Appeal under s 755U of the SPA.

1. Accordingly Mr Williams submits in Appeal 88/2011 Unitywater:

“1.        had no role in the assessment of the application;

2.was, and is not, an active concurrence agency;

3.was not required to be served with a copy of the Notice of Appeal by any means; and

4.has no entitlement under SPA to be a party to the appeal.”

1. All four points he makes are correct.

1. However, the cases he relies upon and in particular Sushames & Ors v Pine Rivers S.C. & Ors. [2006] QCA 171 does not support his primary submission to the effect that a person or entity with no statutory right to be a party to proceedings in this court has no right to resort to r 69 in an attempt to convince the court that he or she or it should be included as a party for either or both the reasons set out in r 69(1)(b)(i) and/or (ii) because the PECRs “cover the field”. The decision at first instance by his Honour Judge Rackemann reported at [2005] QPEC 096, clearly shows that the registered proprietor, and unsuccessful appellant before the Court of Appeal sought to be joined pursuant to that very rule, but the case at first instance and on appeal was determined on whether or not the relevant party was an “applicant” by reference to the extended definition of that term in the IPA. His Honour determined that the applicant was not a person whose presence before the court was necessary or desirable, just and convenient for the purposes set out in r 69 UCPR. Neither his decision nor the judgment of the Court of Appeal confirming the correctness of his decision, is authority for the proposition now advanced by Mr Williams.

1. Unitywater is a distributor-retailer for the Sunshine Coast Regional Council’s local government area and its function include providing and charging for water and sewerage services.

1. Section 77I of the SEQ Water Act provides (relevantly):

“77I(1)This subdivision applies for a relevant action by a participating local government of a distributor-retailer if—

(a)under the relevant action a liability to the local government has accrued to it, or may at any time accrue to it; and

(b)all or part of the liability is for—

(i)water infrastructure constructed or to be constructed in the distributor-retailer’s geographic area; or

(ii)a charge for the provision of water services or waste water services.

…

(3)In this section the relevant action means any of the following—

…

(b)a development approval under the Planning Act decided after 1 July 2010 if the relevant development application was made before 1 July 2010.”

1. Section 77J is in these terms:

“If all of the liability is for water infrastructure or for the charge for water services or wastewater services, the liability is taken to be a liability to the distributor-retailer instead of the local government.”

1. Clearly the Court’s decision in relation to Condition 7, or indeed in relation to the height issue raised in the later appeal against the s 369 refusal, has the potential to affect the liability of Unitywater for water supply services, water infrastructure and charging for sewerage services. These are matters relevantly taken up in the impugned Condition 7(a).

1. Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 41 is also authority for the proposition that an entity who has no statutory right to join proceedings (in that case an appeal from a decision of this Court to the Court of Appeal), nonetheless is not prevented from applying pursuant to r 69 to be included as a party.

1. In that case, [2007] 1 Qd R 467 at 470, Keane JA (as his Honour then was), relevantly observed (Williams JA and McMurdo J agreeing):

“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 his Honour 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 to be given an opportunity of replying to it.”

In Annetts v McCann (1990) 170 CLR 595 at 598-599, 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 displays 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 interest.”

1. In this case, the infrastructure conditions will clearly be a major focus of the appeal.  There is a potential, as a matter of law, for the Court’s decision to affect the liability of Unitywater for water infrastructure and charges for water services and sewerage.

1. As the cases referred to by Keane JA in Leda at 496 paragraphs 40-49 indicate, there is no merit in Mr Williams’ superficially appealing “floodgates” argument articulated in his thoughtful and careful submission at paragraphs 3 and 4 on p 6. If a person has no statutory right to be a party to proceedings before this court, and then seeks to be joined pursuant to r 69, that person will have to satisfy the requirements of r 69(1)(b)(i) and/or (ii).

1. The Order of the Court is that Unitywater be included as a co‑respondent to the appeal.