Salsabil Charitable Organisation Pty Ltd v Gold Coast City Council
[2015] QPEC 9
•13 March 2015, Ex tempore
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Salsabil Charitable Organisation Pty Ltd v Gold Coast City Council & Ors [2015] QPEC 9
PARTIES:
SALSABIL CHARITABLE ORGANISATION PTY LTD
(appellant)v
GOLD COAST CITY COUNCIL
(respondent)CURRUMBIN RESIDENTIAL AND LIGHT INDUSTRY SAFETY COMMITTEE INC.
(first co-respondent by election)
LISA ALANA BATTYE
(second co-respondent by election)
HARRY ALFRED BONIFACE
(third co-respondent by election)
AJ & R SLAUGHTER
(fourth co-respondents by election)
ALLAN PAUL MACFARLANE
(fifth co-respondent by election)
FILE NO:
4130 of 2014
DIVISION:
Planning & Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning & Environment Court, Brisbane
DELIVERED ON:
13 March 2015, Ex tempore
DELIVERED AT:
Brisbane
HEARING DATE:
13 March 2015
JUDGE:
Everson DCJ
ORDER:
1. The non-compliance of the appellant with respect to ss 260 and 263 SPA is excused.
2. I decline to make an order transferring the appeal to Southport.
3. I dismiss the amended application
CATCHWORDS:
ENVIRONMENT AND PLANNING – DISCRETION – DEVELOPMENT APPLICATION NOT PROPERLY MADE – APPLICATION FOR TRANSFER – whether failure to obtain consent of owner of land should be excused – whether appeal should be transferred to the Southport registry
Sustainable Planning Act 2009 (Qld), ss 260, 261, 263, 440, sch 3.
COUNSEL:
Mr M Williamson for the appellant
Mr S Ure for the respondent
Mr R Frigo for the first co-respondent by election
SOLICITORS:
Gantt Legal for the appellant
Norton Rose Fulbright for the respondent
O’Keefe Mahoney Bennett Solicitors for the first co-respondent by election
This is an appeal against decision of the respondent made on the 16 September 2014 to refuse the development application of the appellant for a material change of use for a place of worship on land at Currumbin Waters, more particularly described as lot 137 on RP174859 and lot 138 on RP174860.
I have before me an amended application brought by the first co-respondent by election seeking that the notice of appeal be struck out or permanently stayed. A declaration is also sought that the development application was not a “properly made application” pursuant to section 261 of the Sustainable Planning Act 2004 (“SPA”). Alternatively, the first co-respondent by election seeks an order transferring the appeal to the Southport registry of the court.
Today on behalf of the first co-respondent by election Mr Frigo has abandoned the relief seeking the appeal be struck out or be permanently stayed pursuant to the Uniform Civil Procedure Rules 1999 or the inherent jurisdiction of the court. The argument which remains is that the development application was not a properly made application and in such circumstances the appeal ought to be struck out. Alternatively, the first co-respondent by election still seeks an order transferring the appeal to the Southport registry of the court.
Before outlining the chronology of the events giving rise to the primary relief sought in the application, it is appropriate to note the relevant provisions of SPA which are relied upon by the first co-respondent by election. Section 263 states that the consent of the owner of the land the subject of the application for a material change of use is required. Section 260 states that such an application must contain or be accompanied by the owner’s written consent or contain a declaration to this effect. Pursuant to section 261, an application is a properly made application only if these requirements have been complied with. In schedule 3 it is stated:
p
“owner, of the land, means the person for the time being entitled to receive the rent for the land or would be entitled to receive the rent for it if it were let to a tenant at a rent.”
The development application included what purported to be the consent of the owners of both lots. At the relevant time the registered owner of lot 137 was Basview Pty Ltd and the registered owner of lot 138 was Venron Pty Ltd. Directors of Basview Pty Ltd Mr Mizner and Mr Monaghan, purported to consent to the development application on its behalf in respect of lot 137. The same directors of Venron Pty Ltd purported to consent in identical terms on its behalf in respect of lot 138. It appears from evidence before me that Venron Pty Ltd held lot 138 was the undisclosed trustee of the Venron Staff Superannuation Fund. The development application was lodged on 3 March 2014 and the purported consent of the directors of Venron Pty Ltd is dated 16 January 2014 in the case of Mr Mizner and 20 January 2014 in the case of Mr Monaghan. To further complicate matters it has now been revealed that by a deed dated 14 April 2000, Venron Pty Ltd ceased to be a trustee of the Venron Staff Superannuation Fund. Venron Pty Ltd was wound up by an order of the Federal Court on 5 September 2014. There is no reference to lot 138 in the report of the liquidator.
When the appellant became aware of the winding up of Venron Pty Ltd it terminated the contracts to purchase both lots on 3 October 2014 and renegotiated new contracts. New contracts with Basview Pty Ltd in respect of lot 137 and the trustees of the Venron Staff Superannuation Fund in respect of lot 138 were entered into on 10 December 2014. I have before me evidence that each of the trustees continues to consent to the making of the development application. There is no evidence before me which suggests that at the time the development application was lodged the appellant was aware of any of the difficulties in securing title to lot 137 which have since come to light.
Given the technical nature of the basis for the primary relief sought by the first co-respondent by election, and in particular the assertion that the absence of consent of the owner of lot 138 is such that the application is not a properly made application, it is necessary to have regard to section 440 of SPA which is in the following terms:
“(1) Subsection (2) applies if the Court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied.
(2) The Court may deal with the matter in the way the Court considers appropriate.
(3) To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.”
Effectively, on the evidence before me the ownership of lot 138 was not as disclosed in a search of the title because of the operation of section 15 of the Trusts Act 1973. This permitted the trustees of the Venron Staff Superannuation Fund to become joint tenants and owners without any conveyance, transfer or assignment being noted on the title. It is conceded by the appellant that in the circumstances the consent of the owner was not obtained in respect of lot 138 and that it is therefore necessary to have resort to section 440 to excuse the non-compliance in this regard.
A number of matters fall for consideration in the exercise of my discretion pursuant to section 440. Mr Frigo on behalf of the first co-respondent by election concedes a complete absence of prejudice to his client in the event I exercise my discretion in favour of the appellant. There is no evidence before me that any party will suffer any prejudice should I exercise my discretion in favour of the appellant in the manner that is sought. The respondent makes no submissions to the contrary either.
Mr Frigo submits that the conduct of the appellant in terminating its contracts to secure the land the subject of the development application when it became aware of the liquidation of Venron Pty Ltd is conduct relevant to the exercise of my discretion, which is unfavourable to the appellant. I do not accept the submission. The appellant was faced with a situation where it discovered that the party with whom it had contracted in respect of lot 138 was in liquidation. It was therefore entirely understandable that it would seek to secure the property the subject of the development application by contracting with the true owners as a matter of urgency. I am satisfied that the appellant acted expeditiously in doing so.
Other than a complete absence of prejudice, a matter which is particularly relevant to the exercise of my discretion is the fact that the appellant, on the evidence before me, was entirely blameless in failing to secure the consent of the owners of lot 138 in circumstances where a search of the title revealed the owner to be Venron Pty Ltd and the directors of Venron Pty Ltd represented that they were able to consent on its behalf. Another matter which is relevant to the exercise of my discretion is the prejudice which will be faced by the appellant in the event the appeal does not proceed. The appellant has placed evidence before me that it has expended in excess of $50,000 in seeking to obtain a development approval for a place of worship and a further $30,000 upgrading the subject site in the meantime.
Balancing the blameless conduct of the appellant in not obtaining the consent of the owner of lot 138, the complete absence of prejudice to any party should I exercise my discretion in favour of the appellant pursuant to section 440, the prejudice that the appellant would suffer should the appeal not proceed and having regard to matters of public interest which lie at the core of the excusatory power itself, I decline to make the declaration sought. I further order that the non-compliance with respect to the requirement to provide the owner’s consent pursuant to the relevant provisions of SPA is excused.
I now turn to the alternative relief which is sought. It is submitted to me that the appeal ought to be transferred to the Southport registry because the proceeding can be more conveniently or fairly managed in Southport. In support of this submission the first co-respondent by election relies upon the fact that most of the parties live or are based within the area serviced by the Southport registry. In particular, the co-respondents by election live there, and the respondent is the local government responsible for the area. It is also submitted that the lawyers for the first co-respondent by election, including their counsel, practise from within the area serviced by the Southport registry. It has been brought to my attention that it is anticipated that evidence will be called from lay witnesses at the hearing of the appeal.
The appeal is, however, at a very early stage. The respondent does not urge a transfer of the matter and the lawyers for the respondent and the appellant, including their counsel, do not conduct their practices from within the area serviced by the Southport registry. Expert witnesses have not been nominated at this stage and it is impossible for me to discern what percentage of the witnesses who it is proposed will ultimately give evidence practise or reside within the area serviced by the Southport registry.
A number of potential scenarios are available to the court, including conducting a site inspection and hearing evidence from lay witnesses or other witnesses who reside or have offices within the jurisdiction covered by the Southport registry in Southport and hearing the balance of the appeal in Brisbane. It is simply too early for me to make a realistic assessment of the merits of the proposal to change the venue. I therefore decline to make an order transferring the appeal to the Southport registry.
I dismiss the amended application.
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