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

1. 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 it might have under UCPR r 69 to grant the relief sought. The other co-respondent by election, Mr Willmett, did not appear when called. (The court accepts from the applicant’s Counsel that service upon him occurred and can be proved if necessary.) The co-respondent is abiding the court’s order. The respondent Council submitted that the jurisdiction invoked exists, but refrained from presenting any argument as to the manner in which the discretion ought to be exercised.

1. The Notice of Appeal asserts that on 21 June 2000 Mr Ogle made a development application to the Council in respect of land of his covering some 148 ha for a material change of use for a low density residential subdivision comprising 207 allotments on part of the site.  The co-respondent became involved because the Department of Main Roads is a concurrence agency under s 3.3.16 of the Integrated Planning Act 1997 (IPA).  The Council refused the application by a decision notice dated 25 March 2003.

1. The Notice of Appeal was filed on 28 April 2003.  It seeks an order that the appeal be allowed, and the development application be approved and the development permit applied for be granted subject to conditions which are reasonably required or relevant but not an unreasonable imposition.  The co-respondents by election were adverse submitters.  According to the decision notice there were 820 additional “properly made submissions opposing the proposal”.  Only Mr Willmett and the Olsons, of the submitters, elected to continue their opposition in the appeal.

1. The land is now in the registered proprietorship of the applicant, following a Supreme Court order made as recently as 13 October 2004 that a caveat lodged by him against the title be removed.

1. Mr Ogle has lost his interest in the land in consequence of the exercise of power of sale by a mortgagee, Elliott & Harvey Mortgage Securities Limited.  The sale process was begun by service of a notice of exercise of power of sale on Mr Ogle on 11 July 2003.  The contract of sale of the land to the applicant (Exhibit 1 to the affidavit of Mr Smits) is dated 15 April 2004 and was completed on 11 June 2004, following which the caveat was lodged.  A copy of the mortgage is Exhibit 2 to the affidavit.

1. The entitlement of persons to become an appellant (indeed, even a party to an appeal) in this court is controlled by the IPA.  Thus, a submitter appeal under s 4.1.28 is not available to any person who made a submission to the assessment manager, but only to those who made a “properly made submission”, as defined:  Hamill v Brisbane City Council [2004] QPEC 030; cf Riethmuller v Brisbane City Council [2004] QPEC 063; [2004] QPEC 064. The present appeal was brought under s 4.1.27, whereby:

“(1) An applicant for a development application may appeal to the

court against any of the following—

(a)  The refusal … of a development application …

(2) An appeal under sub-section (1)(a) … must be started within 20 business days (the “applicant’s appeal period”) after the day the decision notice … is given to the applicant.”

By s 4.1.55, “if an action must be taken within a specified time, the court may allow a longer time to take the action if the court is satisfied there are sufficient grounds for the extension.” This provision is available to allow extension of the applicant’s appeal period: Riethmuller v Brisbane City Council [2004] QPEC 063.

1. Any entitlement of the present applicant (Tendiris) to become an appellant in the court depends on its being an applicant for purposes of s 4.1.27. Schedule 10 of the IPA provides definitions, the order of which is intriguing:

“applicant, for a development application mentioned in chapter 4, includes the person in whom the benefit of the application vests.

applicant, for chapter 3, means the applicant for a development application.”

Tendiris could not possibly be an “applicant” for chapter 3 purposes.  It made no development application.  It contends, supported by the Council, that it is an “applicant” for the chapter 4 purposes presently relevant, as “the person in whom the benefit of the application vests.”

1. The IPA definitions have no precursors in earlier legislation whose elucidation in decided cases might have provided guidance to the court.  The phenomenon of development applications being made by agents such as architects or surveyors, who are not the “real” applicant, in the sense that they do not propose to become developers on their own account, has led to a body of jurisprudence regarding when it is permissible for the “real” applicant to take over a matter when it reaches court.  There are cases where the applicant does not mean to become owner of the relevant land unless the development application is approved.  In Dorrstein v Brisbane City Council (1967) 14 LGRA 97, there was no difficulty about the substitution. The judge refused it in Wyndrone Pty Ltd v Townsville City Council [1988] QPLR 55. The former was followed in Grimley Pty Ltd v Gold Coast City Council [1994] QPLR 252, also in Bower v Brisbane City Council [1990] QPLR 127, where the agent (late) and the developer both ended up as respondents in an objector appeal; at 128, Judge Row rejected the appellants’ submission that a person must have some proprietary or financial interest in the application to be entitled to become a party to the appeal. Mr Cochrane, appearing for Mrs Olson, placed reliance on ArchitectsDewar & Associates Pty Ltd v Redlands Shire Council [1997] QPELR 144, whose headnote is:

“An application for town planning consent had been lodged with the Respondent by a purchaser under a contract of sale with the consent of the registered proprietor.  The Applicant subsequently lodged an appeal against certain conditions imposed upon the approval of the application.  An objector appeal was also lodged, and the Applicant elected to respond to that appeal.  Subsequently, the Applicant exercised a right to terminate the contract for sale of the land.

This was an application by the registered proprietor to continue to prosecute the appeal against conditions and to elect to become a respondent to the objector appeal.  The registered proprietor claimed that the appeals before the Court had a direct and substantial effect upon his legal rights as to the permitted use and conditions on the development land, and that as registered proprietor of the land would be bound by the results of the appeal.

The Local Government (Planning and Environment) Act did not give a right of appeal to the owner of land as such nor a right to become a Respondent by Election to an objector appeal. The registered proprietor relied upon 03 r11 of the Supreme Court Rules which was included in the Local Government Court Rules by reference to r39. The registered proprietor also relied on natural justice grounds.

Held, in dismissing the application that:

1.   It could not be said that in either of the appeals the registered proprietor was a person against whom any form of relief was claimed.  It may be that he had an interest in the outcome but that in itself would not on the interpretation of r11 appear to be a sufficient reason for his joinder pursuant to it.

Coolibah Pty Ltd v Commissioner of Taxation (1981) Qd R 69 referred to.

2.   Appeals such as this were not really of a kind where one party may be held directly liable to another, but involve a review of the consideration of a planning authority.  Although it had to be said that the interests of various parties including the registered proprietor were affected by the result, no particular liability on any person’s part was established by the proceedings accordingly there was no denial of natural justice.

Gurtner v Circuit [1968] 2 QB 587 referred to.

3.   The owner of land as distinct from an applicant who also happens to be an owner was not identified by the Act as being either a necessary or competent party for an appeal.”

and Condo Fisheries Pty Ltd v Gold Coast City Council [2000] QPELR 5, whose headnote is:

“In March 1998, the owners of the land (“the owners”) entered into a conditional contract for the sale of land (“the site”) to Sunland.  Sunland thereafter made a development application to the Respondent, with the consent of the owners, which application was approved in July 1998.  In September 1998, two objectors filed a notice of appeal which was subsequently served upon Sunland.

In these proceedings the owners sought an order that the rezoning application be amended by deleting the name of the Applicant Sunland and inserting the owners’ names and that the time for filing of a notice of election on behalf of the owner be extended.  In support of the application, the owners submitted that in making the application, Sunland had acted as their agent and sought to rely upon the contract of sale and a construction agreement between the parties.

Held, in dismissing the application, that

1. Neither the contract of sale nor the construction agreement provided that the application by Sunland was made as agent for the owners.

2. In numerous cases, the Court had been able in the circumstances of the particular cases to identify the real applicant even where that entity had not made the application itself.  However, it appeared that there had been no cases where documents extraneous to the application had been relied on to support the proposition that there was an agency or that an entity was acting on behalf of another party.

3. In this instance the owners had been unable to identify any material disclosing their interest at some relevant point in the correspondence relating to the appeal.  Furthermore, the circumstances in the case did not give rise to any agency between the owners and Sunland.

4. The Court was unable to discern how anybody in the public arena, including the Respondent, could ever have known that the owners would wish to stand in and substitute for Sunland.

5. There was no provision in the Local Government (Planning and Environment) Act 1990 which would permit the substitution requested. S4.15(5) did not provide for the particular relief being sought.”

1. It is a matter of speculation whether the IPA definitions were intended to resolve issues of the kinds which arose in those cases. In none of them was there the circumstance encountered here of a person who had no connection with a matter at the time of making of the relevant development application. It is clear, I think, that the “Chapter 4” definition of applicant does bring in such persons, potentially, in particular a person who becomes the owner of the subject land at some time after the making of the development application. While there is no commonly understood concept of an application running with the subject land (at least, until the enactment of the new definition), a resulting approval, including its conditions, does run with the land; it both binds and benefits the new owner. The new owner would be entitled to institute a “conditions” appeal under s 4.1.27(1)(b). There is no good reason for not acknowledging the same entitlement in respect of appeals as mentioned in paras (c), (d) and (e). If there can be a “conditions” appeal, or one against a deemed refusal, etc, there is no reason why the new owner cannot appeal against a refusal.

1. The use of the words “benefit” and “vests” in the definition is unusual.  The word “benefit” does appear elsewhere in the IPA. In s 3.1.2(12) reference to the “benefit of an easement”, in the context of a consent that might otherwise be required, probably contemplates the formal legal status of the holder of a dominant tenement. However, the meaning of the word must be far wider in s 5.3.8(2)(a) which proscribes any “benefit (whether for the private certifier’s benefit or another person)”. In that context, I think that any advantage, actual or potential, would be within the section. I am sure the same generous interpretation applies to “benefit” in the Schedule 10 definition of indigenous land which:

“means, for regulating the clearing of vegetation under VMA, land held under a following Act by, or on behalf of or for the benefit of, Aboriginal or Torres Strait Islander inhabitants or for Aboriginal or Torres Strait Islander purposes.”

Likewise, in s 5.4.9(1); where compensation is being assessed, it invites consideration of:

“(b)   any benefit accruing to the land from the change, including but not limited to the likelihood of improved amenity in the locality of the land;
(c)     if the owner owns land adjacent to the interest in land, any benefit accruing to the adjacent land …..”

I do not think that “benefit” in the definition should be construed in any technical or restricted way, except that it probably connotes a direct benefit, in light of the association with “vests”.  It is obvious that the chance of the development application’s leading to an approval is valuable.

1. So far as the word “vests” is concerned, there is no other appearance or any variant of it in the IPA.  In the PropertyLaw Act 1974, “vest” and “vesting” appear in numerous sections, including the ones surrounding the arcane rule against perpetuities in part 14 (s 206ff). In the present context, one should not be tempted to read the definition now under consideration as if “vests” has any special technical meaning. The use is an intransitive verb meaning. According to the Macquarie Dictionary extracts provided by Mr Connor, “vest” means:

“15. to become vested in a person or persons, as a right.
  16. to pass into possession; to devolve upon a person as possessor”,

“vested” meaning:

“1. settled or secured in the possession of a person or persons, as a complete or fixed right, an interest sometimes possessory, sometimes future, which has substance because of its relative certainty.”

In Harmer v FCT (1989) 91 ALR 550 at 562-63 French J considered OED definitions and stated that the weight of authority supports the view that in English law “vest” means vesting in interest, rather than vesting in possession.

1. Tendiris, once it is the owner of the land, comes within s 3.5.28(1) of the IPA:

“The development approval attaches to the land, the subject of the application, and binds the owner, the successors in title and any occupier of the land”,

and must be potentially an applicant for purposes of the definition and of provisions such as s 4.1.41(1)(b) and s 4.1.43(3) – neither of which, of course, applies in Mr Ogle’s appeal.  Once a party, it would be bound by the onus of proof requirements placed upon an applicant by s 4.1.50(1), (2) and (3).  There may be multiple applicants: Bower v Brisbane City Council [1990] QPLR 127. The chapter 4 definition brings in those who have the “benefit” of the application (including the rights and opportunities flowing from it, qualified by the concomitant obligations and restrictions, that may arise from it in due course). It operates not only when the application is made (by chapter 3 applicants) but is capable of bringing in those who at any later time, until appeal rights to this court are exhausted, would enjoy such rights and opportunities and (if they chose to exploit them) abide by the qualifications. The circumstances will often be, as here, such that other parties are ignorant of a new potential protagonist, the chapter 4 applicant in whom the benefit at some time “vests”. It will be for that protagonist to assert its claims to be treated as an applicant. Nothing in the IPA supports the suggestion that nothing can “vest” until there is an approval.  The situation comes close (though I do not need to decide this) to an application’s “running with the land” for chapter 4 purposes.  Use of the (strictly) present tense form, “vests” suggests to my mind that happenings after the making of the development application are allowed for.

1. The definition is not an exhaustive list of applicants.  It does not exclude the chapter 3 applicant.  It recognises as an applicant a person described as one “in whom the benefit of the application vests” – an expression which, in my opinion, would cover one to whom that benefit belongs, or who comes to occupy a position enabling the person to exploit whatever advantages/opportunities etc may arise from the application without needing any authority or assistance from anyone else.

1. The arguments against Tendiris included the proposition that Mr Ogle owned the development application, which was in his name as registered proprietor and was brought about by his work and expenditures; they assert that Tendiris is acting opportunistically, even cynically, in attempting to appropriate the benefit of Mr Ogle’s work without making any contribution.  The court must be conscious that Mr Ogle has at stake potentially valuable opportunities to exploit his ownership of the development application and his role as the existing appellant, for example, by obtaining payment or other consideration from Tendiris to ensure that the appeal is prosecuted effectively (from its point of view), rather than compromised or withdrawn.  (Reference was made to r 11A of the Planning and Environment Court Rules and Mr Ogle’s ability to withdraw his appeal, which may be affected by whether Tendiris has become an “active party” as defined, entitled to be heard.  The court does not say anything further about this topic, or whether Tendiris might have other avenues of redress.)

1. There are difficulties about the argument described in the preceding paragraph.  It depends on a notion that the benefit in question “vests” in Tendiris only if Mr Ogle is divested of it, which ordinarily would happen only if he took some step to divest himself, or if there was some compulsory divestiture.  The definition does not require that.  Once Tendiris becomes registered proprietor, s 3.5.28 creates inchoate, future or contingent benefits available to it, without any action taken by or against Mr Ogle, whose right to continue to prosecute his appeal as he sees fit is unaffected.  Under the new definition, he is not entitled to prevent Tendiris from exercising its own rights as an appellant. 

1. I reject the argument that there is a benefit to Tendiris for present purposes only if it elects to take advantage of any development approval that may come out of Mr Ogle’s development application.  Mr Connor, representing him, submitted:

“8.    Here, there are a number of factual matters which suggest that the benefit of the application has not vested in Tendiris, namely:

(a)in the contract of sale between Tendiris and the mortgagee, the mortgagee was careful not to suggest it was transferring any rights in the development application:

“11.  FUNDAMENTAL TERMS

11.1The Buyer acknowledges and agrees that the Buyer is aware that the Seller is selling as Mortgagee Exercising Power of Sale.

11.2The Buyer further acknowledges and agrees that it buys the property “as is” and subject to the current Local Government Zoning and all current restrictions on its development as may be imposed by that zoning.

11.3The Buyer further acknowledges and agrees that it is aware that the registered proprietor/mortgagor to the Seller has lodged an application for a material change of use to the property which material change of use was rejected by the Local Government and is currently the subject of an appeal and continuing negotiations between the registered proprietor/mortgagee and the Local Council.

11.4The Buyer acknowledges and agrees that it is aware that the Seller has no control or input into such negotiations.

11.5The Buyer further acknowledges and agrees that in respect of any plan lodged in respect of such a material change of use and negotiations with the Seller may not be in a position to transfer intellectual property or a copyright or any other entitlements to those plans.

11.6The Buyer covenants and acknowledges that it is not entitled to rescind or terminate this contract or attempt to do so or claim  compensation or damages arising from the current or any future zoning and is not entitled in any way to postpone settlement of this contract or make this contract or its settlement or completion dependant or conditional in any way upon the change of zones.

11.7The Buyer expressly acknowledges and agrees that in the event that between the date of this contract and the Settlement Date any such material change of use may be granted by the Local Council, the Seller shall be entitled on 7 days notice to terminate this contract as a result of such material change of use.  In the event the Seller so terminates this contract the deposit will be returned to the Buyer but the Buyer shall otherwise have no rights in respect of calling for completion of this contract damages claims or compensation or otherwise against the Seller.”

(b)indeed the mortgagee had no entitlement in law or equity to vest the benefit of the application on Tendiris;

(c)Tendiris has not reached agreement with Ogle for consideration (or otherwise) to transfer any interest that Ogle may have in the application to Tendiris;

(d)Ogle seeks to maintain the benefit of the development application for his own purposes.”

1. The contract provisions set out confirm, as one would expect, that Tendiris purchased fully aware of the development application and the appeal.  I reject the argument that anything to do with them was excluded from the sale. Clause 11 unsurprisingly protects the mortgagee from claims should Tendiris not get to enjoy any fruits of the development application and associated matters.

1. The effect of 11.7 is that if a material change of use is approved before completion, the mortgagee may terminate the contract by notice given within a week.  This is a condition subsequent – it had no effect on an agreement’s coming into existence or not.  The potentially defeating condition never happened; now, after completion, any approval would be too late to trigger 11.7.  The plain intent of it was that if an approval which enhanced the value of the land eventuated, the mortgagee had an election to arrogate the windfall to itself, with the consequence that Mr Ogle’s indebtedness might be further reduced.

1. Further, the contention in Mr Connor’s 8.(b) is overcome by condition 38 in the mortgage:

“38.      Charge & Assignment

The Mortgagor expressly hereby charges and assigns to the Mortgagee and acknowledges and confirms that this mortgage extends to all council approvals, development applications, building approvals, draft plans of subdivisions, designs, plans of engineering works and any other matter relating to the land and all the right title and interest of the Mortgagor therein including all intellectual property rights.”

1. Intended or not, the effect of the definition of a chapter 4 applicant is to avoid the outcome in Architects Dewar and Condo Fisheries, and to take things further, by recognising as an applicant for appeal purposes a person assuming ownership of the relevant land only after the making of the development application, even after the commencement of an “applicant appeal”: there is no basis on which some cut-off date for the relevant vesting can be identified.  The new definition extends beyond the chapter 3 applicant the class entitled to participate in an appeal as an applicant.  In my view the entitlement of a registered proprietor of the subject land is beyond dispute.

1. That Tendiris may be an applicant does not necessarily entitle it to the relief it presently seeks.  Joinder of parties is a matter for the exercise of the court’s discretion under UCPR r 69, made relevant by r 3(2) of the Planning & Environment Court Rules.

1. The interest which Tendiris has as registered proprietor of the subject land makes indisputable its being a person “in whom the benefit of the development application” has vested.  There is no comparison with the situation of the Commissioner of Taxation in Coolibah Pty Ltd v The Commissioner of Taxation [1981] Qd R 69. He was held not entitled to come in as a party in proceedings where no relief was or could be claimed by or against him, and in which his legal right, “to the payment of the lawful amount of money which is exigible by way of income tax under the provisions of the Income Tax Assessment Act” (see 72), was a right which could “not be affected … by the result which may be reached” in that particular proceeding (73).

Public Interest

1. The applicant’s submission was that both (i) and (ii) of r 69(1)(b) justify Tendiris’ presence before the court. There is the requisite direct effect on its rights and liabilities required by (i): Pegang Mining Co Ltd v. Choong Sam [1960] 2 MLJ 52 at 56; News ltd v. Australian Rugby Football League Ltd [1996] 74 FCR 410 at 524-525; Interchase Corp Ltd(In Liq) v. FAI General Insurance Co Ltd [2000] 2 QdR 301 at 316; Macquarie Bank Ltd v. Lin [2001] QSC 341 at [14] (authorities identified by Mr Couper SC and Mr Houston) and to satisfy (ii): MAM Mortages Ltd (In Liq) v. Cameron Bros (a firm) (2002) QCA 330 at [27] ff.

Their submission goes on:

“Further, it is desirable, just and convenient to have the applicant joined, not only because the applicant is now registered proprietor of the land and its rights are directly affected by the outcome of the appeal, but also because Mr Ogle, having ceased to have an interest in the land, may not prosecute the appeal fully.  If a proper application of town planning principles dictates that the appeal ought to be allowed and a development permit granted, then it follows that there is a public benefit in the vigorous prosecution of the appeal, as well as the benefits which might enure to the applicant from the successful prosecution of it.  It would be unjust if the applicant’s rights with respect to the land were decided in its absence, particularly where the present appellant has little incentive to safeguard those rights.  This is particularly so in circumstances where there is now substantial doubt about the future ability of the applicant to make any further application, having regard to the draft South East Queensland Regional Plan, recently announced by the Queensland Government.”

1. It should be observed apropos the first sentence that nothing prevents Mr Ogle’s prosecuting his appeal to the maximum; the argument is that he may choose not to do so.  There is evidence that he has interests in other land which may be enhanced if the number of lots permitted on Tendiris’ land is reduced from the number presently proposed, for example.  As to what is said about public benefit, I think it romanticises the role of a developer to equate its pursuit of private profit with public benefit.  There is presumably other land that might be subdivided into residential allotments, so that there is no loss, necessarily, if this land is not.  The South East Queensland Regional Plan may have its own impact on assessment of where public interest and benefit lie.  I do think there is a public interest in avoiding repetition of the long, costly process that has got Mr Ogle’s application decided by the Council and before the court.  Why should that be repeated?  The number of objections received by the Council does not suggest that the public need to have any further say.

1. I have rejected Mr Cochrane’s argument that whether a person obtains a “benefit” for purposes of the definition depends on whether or not some development approval or permit is actually taken up. I reject the argument (which I think was made) that there must be an approval or permit before there can be any “benefit”. Mr Cochrane may be correct that “there is nothing which presently attaches to the land”. However, procedures are in train which may (now by the Court’s order) produce an approval which will attach to the land. The definition refers to benefit of the application, not of any “approval”. Tendiris has a real interest to pursue. I think it is inescapable that Tendiris may bring an “applicant appeal”. It has the difficulty of being out of time, which may be cured by the Court under s 4.1.55. Mr Couper foreshadowed reliance on s 4.1.5A.

1. Even if complaints that Tendiris is acting opportunistically were made out, that provides no proper basis for the court’s declining to act under r 69.

1. The difficulty which concerns the court is that if Tendiris comes in (as it desires) as an appellant, which will occur with separate legal representation from Mr Ogle’s, the orderly conduct of the proceeding may be compromised;  in a practical sense, even if it is permissible to have appellants separately represented in the same appeal, that ought to be avoided.  If an appeal is to be properly advanced, there has to be a single legal representative conducting it.  In relation to conventional actions with multiple plaintiffs, see Lewis v Daily Telegraph(No 2) [1964] 2 QB 601; Goold & Porter Pty Ltd v Housing Commission (1974) VR 102. The expedient of making a potential plaintiff a defendant (noted in Re Mathews (1905) 2 Ch 460) may not be available given the restrictions as to parties in appeals imposed by the IPA.  The court may hear two or more appeals together IPA (s 4.1.51). It is commonplace for that occur with parallel adverse submitter appeals; s 4.1.51 authorises more complex combinations where appropriate. See, for example, Ugarin Pty Ltd v Logan City Council [2004] QPEC 001 and Belperio v Brisbane City Council (3428 of 2004), DTS Group v Brisbane City Council (3429 of 2004) and Connolly v Brisbane City Council (3369 of 2004), 15 October 2004, all at [2004] QPEC 069.

1. Accepting that Tendiris ought to be a party, and that it cannot displace Mr Ogle as appellant (also that there may be difficulties in introducing it in Mr Ogle’s appeal as a respondent or co-respondent), the preferable outcome appears to be that it commence its own “applicant appeal” within an extended period to be allowed by the court under s 4.1.55. In that appeal it may be that the Council is the only appropriate respondent. Tendiris may be willing (indeed there may be difficulties whose implications I have not yet considered if it is not) to proceed on a notice of appeal whose terms depart no more than is absolutely necessary in light of the change of party from Mr Ogle’s. The court would be amenable to making directions to simplify service on appropriate parties, for example by authorising service on the solicitors presently engaged by them. It is difficult to see why the co-respondents ought to be brought into a new appeal against their wishes. No doubt directions can be formulated which will ensure that all parties now before the court have the fullest opportunity to present their cases and challenge the cases of others. It should be left to the parties to consider these reasons and attempt to devise workable directions, failing which the court will do what it can.