Secured Lifestyle Pty Ltd v. Burdekin Shire Council

[2007] QPEC 79

[2007] QPEC 079

PLANNING AND ENVIRONMENT COURT

JUDGE ROBERTSON

P & E Application No 3098 of 2006

SECURED LIFESTYLE PTY LTD	Appellant
and
BURDEKIN SHIRE COUNCIL	Respondent

and

MONTROSA PTY LTD   Co-respondent

and

THE CHIEF EXECUTIVE OF THE
DEPARTMENT OF THE ENVIRONMENTAL
PROTECTION AGENCY                    Co-respondent

TOWNSVILLE

..DATE 24/09/2007

ORDER

HIS HONOUR: The co-respondent/applicant, Montrosa Pty Ltd, is seeking orders pursuant to rule 69 of the Uniform Civil Procedure Rules, that Hillward Proprietary Limited as trustee for the R D Ahern Family Trust be permitted to join the appeal as a co-respondent by election and that Montrosa be permitted to withdraw as a party to the appeal.

The appeal is a submitter appeal against a decision of the Burdekin Shire Council dated the 18th of September 2006 to approve a development application by Montrosa to enable reconfiguration of a lot and development of a retirement village on land at 26 Chippendale Street, Ayr.  Montrosa made the development application in November 2005.  At that time it was not the registered proprietor of the land, but the application was made with the consent of the then owners, Mr and Mrs Cremin.  On the 31st of January 2007 Montrosa contracted with the Cremins to purchase the land.  In February 2007 Montrosa contracted to sell the land to Hillward, with settlement of both contracts to be contemporaneous.  Hillward is now the registered proprietor of the land. 

Montrosa's application focuses on whether or not Hillward can, on the material before the Court, be regarded as an "applicant" as that term is defined in schedule 10 of the Integrated Planning Act. Relevantly, the definition in schedule 10 of an applicant is "(b) for a development application mentioned in chapter 4, includes the person in whom the benefit of the application vests". The application is opposed by the submitter appellant. Council's submission was initially at the time of the filing of its written outline that there was insufficient evidence upon which the Court could hold that Hillward could come within that definition, however since the filing of the most recent affidavit of Robert Dennis Ahern, a director of Hillward, on the 21st of September 2007, council's position is to, as it were, support the application.

Rule 69 comes into play because of rule 3 of the Planning and Environment Court rules. The appellant has made a submission that because the application "is beyond the relevant statutory limitation period", rule 69 subrule (2) is applicable and the application does not meet the statutory test contained therein. This is a reference to the order sought by Montrosa that the time to file the notice of election as co-respondent by Hillward be extended until today. Clearly, the time prescribed for the filing of a notice of election, as prescribed by the IPA, has passed but in the absence of any authority I hold that this statutory time limit is not a "limitation period" as referred to in rule 69 (2). The limitation period referred to therein is clearly, in my view, a reference to the type of limitation periods provided for in the Limitation Act and for example the Corporations Law.

That leaves for consideration whether or not on the material before the Court it can be said that Hillward is an "applicant" as defined in schedule 10. The leading authority on the issue is a decision of the Court of Appeal in Sushames & Ors v. Pine River Shire Council & Ors [2006] QCA 171, in which that Court unanimously dismissed an appeal against a decision of his Honour Judge Rackemann in this Court refusing an application by the then registered proprietor of the land, Cennzeal, to be joined as a co-respondent in a submitter appeal. Keane JA, who wrote the leading judgment of the Court with whom Williams JA and White J agreed, expressly approved a statement made by his Honour Judge Rackemann in the earlier decision to this effect - by reference to Cennzeal, his Honour said this:

"It was not the original-named applicant.  The application was not made on its behalf.  It had no role in the application process before the council and is not a party to any agreement or arrangement which purports to vest the benefit of the application in Cennzeal.  It is simply an owner who gave written consent to Soncom to make a development application."

In the outline of submissions filed on behalf of the respondent council on the 21st of September 2007, Miss Frankling, in my respectful view, correctly summarised the findings of Justice Keane in the Sushames case as follows: 

"(1)The provisions of the IPA does not envisage any role for an owner of land as a co-respondent for an appeal to the P & E Court;

(2) being the beneficiary of development approval as an owner and being the applicant for a development application are different;

(3) IPA does not expressly provide for an owner to have the benefit of a development application, regardless of whether the owner will ultimately get the benefit of the development approval;

(4) this case differs from the case where the terms of a ... contract of sale seek to assign the benefit of a development application to a purchaser.  In such a case the benefit of a development application has been vested in the purchaser."

In the Sushames case Cennzeal was always the registered proprietor of the land.  Similar to what occurred here, another party, Soncom, had applied for a development approval with the consent of the owner.  The day after the application was made Soncom entered into a contract to purchase the land from Cennzeal.  Council later approved the development application and a number of submitters appealed.  After the appeal was lodged the contract between Soncom and Cennzeal terminated and Soncom wished to consent to an order that the submitters' appeal be allowed.  Cennzeal, however, wished to resist the appeal and unsuccessfully applied to this Court to be joined as a co-respondent. 

There is an obviously clear and important distinction here because the contract between Montrosa and Hillward has now settled and the argument therefore focussed on a number of conditions in the contract between them which Montrosa argues vests the benefit of the application in Hillward.  These are clauses 5.1, 5.2, 5.3, 7.1, 7.2 and 7.3 in the contract, which is annexed to Mr Ahern's affidavit filed on the 21st of September 2007.  Montrosa's submissions are set out in its written outline at paragraphs 6 to 7.  It is clear from Sushames that Hillward must demonstrate something more than its status as registered proprietor to satisfy this Court that it is an "applicant" for the purposes of the appeal.

Ogle v. Pine Rivers Shire Council & Ors [2004] QPEC 71 is an example of where this Court permitted joinder. That was a decision of his Honour Judge Robin QC and to the extent that there is any divergence in the way in which the relevant principles are enunciated between that decision and Sushames, clearly the latter prevails. However it is pertinent to note that Keane JA specifically declined to resolve a number of criticisms made of the earlier decision. As Keane JA pointed out in Sushames, there is a difference between a development application and a development approval. By virtue of section 3.5.19(1)(c) of the IPA, the effect of a submitters' appeal is to prevent the development approval taking effect until the appeal is determined. I have already referred to council's submissions. They now support the application, with a number of riders, to which I will refer in a few moments.

The appellant's submission is a lot more robust.  It positively submits that the relevant provisions of the contract between Montrosa and Hillward fall short of satisfying this Court that the benefit of the development application has vested in Hillward.  As I have made it clear, I disagree.  In my view this is a clear case in which the contractual provisions between the original applicant, Montrosa, and the present registered owner, Hillward, are sufficient for me to hold that Hillward now "stands possessed of the benefit of the application", to use the words of his Honour Judge Rackemann in the original Sushames decision.
...
HIS HONOUR:  I will order as per the draft, which I have initialled, dated today's date and lodged with the papers.

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