Pine Rivers Shire Council v Queensland Heritage Council
[2005] QPEC 77
•05/08/2005
[2005] QPEC 077
PLANNING AND ENVIRONMENT COURT
JUDGE RACKEMANN
P & E Appeal No 1867 of 2003
| PINE RIVERS SHIRE COUNCIL | Appellant |
| and | |
| QUEENSLAND HERITAGE COUNCIL and HELICOPTER SERVICES PTY LTD | Respondent Co-Respondent by Election |
BRISBANE
..DATE 05/08/2005
JUDGMENT
HIS HONOUR: In these proceedings the Pine Rivers Shire Council has appealed against a decision of the Queensland Heritage Council to enter the Lakeside International Raceway on the Heritage Register on a permanent basis. By a document filed on the 23rd of December 2004, Helicopter Services Pty Ltd purported to elect to become a co-respondent to the appeal.
By application filed on 31 May 2005, the appellant applied for declaratory relief and other orders to the effect that Helicopter Services Pty Ltd was not a necessary or proper party and that it be removed as a party to the appeal.
It would seem from the material and in particular from the affidavit of Mr Sakzewski, that the interest of the so-called co-respondent by election was that it claimed a right to become the owner of some of the land which it thought was part of the listing.
There are currently proceedings on foot in the Supreme Court pursuant to which Helicopter Services claims a right to become the owner of certain land which is in close proximity to the raceway. On the hearing of the application however, it was conceded that such land does not, in fact, form part of the land the subject of the decision of the Queensland Heritage Council and that Helicopter Services does not have any right to be a party to the appeal.
Nevertheless Helicopter Services asked to be included as a party pursuant to Rule 69 of the Uniform Civil Procedure Rules, and in particular, pursuant to Rule 1(b) which provides as follows:
"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;
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."
In relation to that rule, I was referred to the decision in Macquarie Bank Limited v Fu-Shun Lin and others [2001] QSC 341.
The motivation for Helicopter Services wishing to be a party to the proceedings was explained, in the course of submissions, as the effect which a listing or otherwise of the subject property might have on the future development potential, and hence worth, of the land in respect of which it claims an interest through the Supreme Court proceedings. It was said that, if the heritage listing were set aside, then it would be more likely that the land upon which the race track sits would be redeveloped for some sort of residential purposes which would, in turn, make it more likely that the relatively narrow strip of land, in respect of which Helicopter Services claims an interest, would be able to be developed.
That interest, while perhaps understandable, is not one which makes Helicopter Services a necessary party within the meaning of that expression for the purposes of subparagraph (i) of the rule. Helicopter Services did not place any reliance on that limb of the rule.
The limb on which reliance was placed was subparagraph (ii). In particular, it was said that it would be desirable, just and convenient for Helicopter Services to be joined having regard to its interest in the area and, more particularly, having regard to its lengthy association with the race track which, it is said, may enable the Court to be better informed about matters related to the heritage value of the race track.
Subrule (ii) does not provide that a person may be included as a party where it is desirable, just and convenient in a general sense. Rather, the subrule is expressed so that the person's presence before the Court will be desirable, just and convenient "to enable the Court to adjudicate effectually and completely on all matters in dispute connected with the proceeding".
In this case, the issues in dispute in the proceedings have been defined by reference to the notice of appeal which, in turn, raises issues as to whether the race track met the criteria for entry in the register pursuant to section 23 of the Queensland Heritage Act.
While I can understand that Helicopter Services might have a commercial interest in maximising the future development potential of the race track land, that does not mean that its presence before the Court as a party is desirable, just and convenient in order for the Court to be able to adjudicate effectually and completely on the matters that are the subject of dispute in the current proceedings, that is, the heritage significance of the race track land.
It may well be that Helicopter Services, or those persons who are concerned in the operation of Helicopter Services, may know factual matters which are of relevance to the rather broadly expressed criteria in section 23, but that does not put them in any different position than a witness who might be called in a proceeding to give relevant evidence or, indeed, in a different position to a person who is sufficiently knowledgeable and interested in the heritage listing to have made a submission at the appropriate time.
Helicopter Services has not pointed to any specific matter which, in my judgment, would make their presence as a party desirable, just and convenient in order to enable the Court to adjudicate effectually and completely on the matters in dispute. Even if it were thought that the pre-conditions to joinder had been met, the Court still retains a discretion and, given the matters to which I have referred, I would not have been prepared to exercise my discretion in favour of joinder.
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HIS HONOUR: On the question of costs I exercise my discretion not to order costs. Costs is regulated by section 4.1.23 which requires each party to bear their own costs unless the matter falls within the circumstances listed in subsection (2). Ultimately the application was treated as one for discretionary joinder under rule 69. That was resolved as a matter of discretion against Helicopter Services. However, I would not regard that application as frivolous or vexatious.
What the appellant points out is that the wrong procedure was first followed, that is, that Helicopter Services purported to file a notice of election when it had no right to do so which, in turn, caused his client to bring an application and to get material in support of that application, which it would not have had to have done if it was simply responding to an application for joinder.
That may raise a discretion to award costs on the basis that Helicopter Services defaulted in a procedural requirement or that its actions in filing the notice of election was at least frivolous, it not having any arguable legal basis.
As a matter of discretion however, even if the jurisdiction is enlivened I would not be prepared to order costs in this case. The circumstances giving rise to the filing of the notice of election have been explained by reference to some correspondence. Helicopter Services sent a letter dated 25th of November 2004 to the Registrar of the Court in which, amongst other things, it was said that permission was requested for the company to be a party to the legal proceedings before the Planning and Environment Court. The response of the Court, on the 30th of November 2004 was, in part, that:
"You may elect to file a Planning and Environment Form PEC-7, Election to Co-Respond but I would urge you to obtain legal advice prior to that step."
As the appellant said, Helicopter Services should properly have taken legal advice, which may have identified the erroneous thinking in terms of the filing of Election, but
I am not persuaded to exercise my discretion to order costs in those circumstances.
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HIS HONOUR: I will make an order that Helicopter Services Pty Ltd be removed as a party to the appeal.
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