Ogle v Pine Rivers Shire Council - [2004] QPEC 71

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ogle v Pine Rivers Shire Council & Ors [2004] QPEC 071

PARTIES:

DONALD GORDON OGLE
Appellant
v
PINE RIVERS SHIRE COUNCIL
Respondent
And
STATE OF QUEENSLAND
Co-Respondent
And
CLIFFORD ALLEN WILLMETT
Co-Respondent by Election
And
R P & P A OLSON
Co-Respondents by Election

FILE NO/S:

BD1313 of 2003

DIVISION:

Planning & Environment

PROCEEDING:

Application in pending appeal for addition of a party.

ORIGINATING COURT:

Brisbane

DELIVERED ON:

10 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2004

JUDGE:

Robin QC, DCJ

ORDER:

Directions to be given to permit new registered proprietor of development site to exercise its right to appeal as “applicant”.

CATCHWORDS:

Application by new registered proprietor of site the subject of a development application refused by Council to be joined as appellant in an “applicant appeal” by the former registered proprietor (who made the development application) – whether new proprietor an “applicant” entitled to appeal for purposes of IPA Sch 10 definition as “the person in whom the benefit of the (development) application vests” – whether, if jurisdiction to add a new appellant existed, it should be exercised in the circumstances – whether institution of a separate appeal to be heard with existing appeal preferable.

Integrated Planning Act 1997 s 3.5.28(1), s 4.1.27, s 4.1.51, s 4.1.55, Sch 10
Planning & Environment Court Rules r 3(2) r 11A.
Property Law Act 1974
UCPR r 69

Cases considered:
ArchitectsDewar & Associates Pty Ltd v Redlands Shire Council [1997] QPELR 144
Belperio v Brisbane City Council (3428 of 2004); [2004] QPEC 069
Bower v Brisbane City Council [1990] QPLR 127
Condo Fisheries Pty Ltd v Gold Coast City Council [2000] QPELR 5
Connolly v Brisbane City Council (3369 of 2004); [2004] QPEC 069
Coolibah Pty Ltd v Commissioner of Taxation [1981] Qd R 69
Dorrstein v Brisbane City Council (1967) 14 LGRA 97
DTS Group v Brisbane City Council (3429 of 2004); [2004] QPEC 069
Grimley Pty Ltd v Gold Coast City Council [1994] QPLR 252
Hamill v Brisbane City Council [2004] QPEC 030
Riethmuller v Brisbane City Council [2004] QPEC 063
Ugarin Pty Ltd v Logan City Council[2004] QPEC 001
Wyndrone Pty Ltd v Townsville City Council [1988] QPLR 55

COUNSEL:

Mr M. Connor (Solicitor) for the Appellant

Mr A.N. Skoien for the Respondent

Mr M.B. Wilkinson (Solicitor) for the Co-Respondent

Mr W. Cochrane for the Co-Respondent by Election (Olson)

Mr S. Couper QC for the Applicant

SOLICITORS:

Connor O’Meara for the Appellant

Shire Solicitor, P.R.S.C for the Respondent

Crown Solicitors for the Co-Respondent

Nicholsons Solicitors for the Co-Respondent by Election (Olson)

John M. O’Connor & Co for the Applicant

This is an application by Tendiris Pty Ltd filed on 16 June 2004 for an order joining it as an appellant. The present appellant, Mr Ogle, and the co-respondent by election, Mrs Olson (whose husband has passed away) deny the court’s jurisdiction to make the order and submit that the court should decline to exercise any discretion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] QPEC 71
Decision Date: 10 November 2004

CaseChat Overview and Summary

The case of Ogle v Pine Rivers Shire Council involves an application by a new registered proprietor of a development site to be joined as an appellant in an appeal against the refusal of a development application by the council. The former registered proprietor, who originally made the development application, is the primary appellant in the ongoing appeal. The new proprietor seeks to join as an appellant to assert its rights as the current beneficiary of the development application. The legal issues before the court were whether the new proprietor qualifies as an "applicant" under the definition in the IPA Schedule 10, and if the court has the jurisdiction to allow a new appellant to join the existing appeal, whether it should exercise that jurisdiction. The court also considered whether it would be preferable to have a separate appeal instituted.

The court examined the definition of "applicant" in the IPA Schedule 10, which states that an "applicant" is "the person in whom the benefit of the (development) application vests." The court found that the new proprietor, as the current registered proprietor of the site, was indeed the person in whom the benefit of the development application vested, and therefore qualified as an "applicant." The court then turned to the issue of whether it should exercise its jurisdiction to allow the new proprietor to join the existing appeal. The court considered the practicalities of the situation, the interests of justice, and the potential for duplication of proceedings. Ultimately, the court determined that it was appropriate to exercise its jurisdiction to allow the new proprietor to join the existing appeal.

In conclusion, the court held that the new proprietor was entitled to be joined as an appellant in the ongoing appeal against the council's refusal of the development application. The court directed that appropriate steps be taken to permit the new proprietor to exercise its right to appeal as an "applicant." This decision ensures that the current beneficiary of the development application can participate in the appeal process and assert its rights.

Orders

Orders of the court

Directions to be given to permit new registered proprietor of development site to exercise its right to appeal as “applicant”.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ogle v Pine Rivers Shire Council & Ors [2004] QPEC 071
PARTIES:	DONALD GORDON OGLE Appellant v PINE RIVERS SHIRE COUNCIL Respondent And STATE OF QUEENSLAND Co-Respondent And CLIFFORD ALLEN WILLMETT Co-Respondent by Election And R P & P A OLSON Co-Respondents by Election
FILE NO/S:	BD1313 of 2003
DIVISION:	Planning & Environment
PROCEEDING:	Application in pending appeal for addition of a party.
ORIGINATING COURT:	Brisbane
DELIVERED ON:	10 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 2004
JUDGE:	Robin QC, DCJ
ORDER:	Directions to be given to permit new registered proprietor of development site to exercise its right to appeal as “applicant”.
CATCHWORDS:	Application by new registered proprietor of site the subject of a development application refused by Council to be joined as appellant in an “applicant appeal” by the former registered proprietor (who made the development application) – whether new proprietor an “applicant” entitled to appeal for purposes of IPA Sch 10 definition as “the person in whom the benefit of the (development) application vests” – whether, if jurisdiction to add a new appellant existed, it should be exercised in the circumstances – whether institution of a separate appeal to be heard with existing appeal preferable. Integrated Planning Act 1997 s 3.5.28(1), s 4.1.27, s 4.1.51, s 4.1.55, Sch 10 Planning & Environment Court Rules r 3(2) r 11A. Property Law Act 1974 UCPR r 69 Cases considered: ArchitectsDewar & Associates Pty Ltd v Redlands Shire Council [1997] QPELR 144 Belperio v Brisbane City Council (3428 of 2004); [2004] QPEC 069 Bower v Brisbane City Council [1990] QPLR 127 Condo Fisheries Pty Ltd v Gold Coast City Council [2000] QPELR 5 Connolly v Brisbane City Council (3369 of 2004); [2004] QPEC 069 Coolibah Pty Ltd v Commissioner of Taxation [1981] Qd R 69 Dorrstein v Brisbane City Council (1967) 14 LGRA 97 DTS Group v Brisbane City Council (3429 of 2004); [2004] QPEC 069 Grimley Pty Ltd v Gold Coast City Council [1994] QPLR 252 Hamill v Brisbane City Council [2004] QPEC 030 Riethmuller v Brisbane City Council [2004] QPEC 063 Ugarin Pty Ltd v Logan City Council[2004] QPEC 001 Wyndrone Pty Ltd v Townsville City Council [1988] QPLR 55
COUNSEL:	Mr M. Connor (Solicitor) for the Appellant Mr A.N. Skoien for the Respondent Mr M.B. Wilkinson (Solicitor) for the Co-Respondent Mr W. Cochrane for the Co-Respondent by Election (Olson) Mr S. Couper QC for the Applicant
SOLICITORS:	Connor O’Meara for the Appellant Shire Solicitor, P.R.S.C for the Respondent Crown Solicitors for the Co-Respondent Nicholsons Solicitors for the Co-Respondent by Election (Olson) John M. O’Connor & Co for the Applicant