Smits v. Moreton Bay Regional Council & Ors; Tendiris Pty Ltd v Moreton Bay Regional Council & Ors
[2009] QPEC 63
•15 July 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Smits v Moreton Bay Regional Council & Ors; Tendiris Pty Ltd v Moreton Bay Regional Council & Ors [2009] QPEC 63 | |
PARTIES: | BD1313/03 LEONARDUS GERADUS SMITS v MORETON BAY REGIONAL COUNCIL (formerly Pine Rivers Shire Council) and STATE OF QUEENSLAND and CLIFFORD ALLEN WILLMETT and P A OLSON and R P OLSON BD4569/04 TENDIRIS PTY LTD v MORETON BAY REGIONAL COUNCIL (formerly Pine Rivers Shire council) and STATE OF QUEENSLAND and CLIFFORD ALLEN WILLMETT and PAMELA ANNETTE OLSON and DARRYL THOMAS HONOR and SAMFORD AND DISTRICT PROGRESS AND PROTECTION ASSOCIATION and PETER JAMES EDMISTON and SUSAN LOUISE EDMISTON | (Appellant) (Respondent) (Second Respondent) (Third Respondent) (Fourth Respondent) (Fifth Respondent) (Appellant) (Respondent) (Co-Respondent) (First Co-Respondent by Election) (Second Co-Respondent by Election) (Third Co-Respondent by Election) (Fourth Co-Respondent by Election) (Fifth Co-Respondent by Election) (Sixth Co-Respondent by Election) |
FILE NO/S: | 1313 of 2003 and 4569 of 2004 | |
DIVISION: | Appellate | |
PROCEEDING: | Respondent’s application for striking out of one of two applicant appeals, alternatively consolidation | |
ORIGINATING COURT: | Planning & Environment Court | |
DELIVERED ON: | 15 July 2009 | |
DELIVERED AT: | Brisbane | |
HEARING DATE: | 08 July 2009 | |
JUDGE: | Robin QC DCJ | |
ORDER: | The appeals be consolidated and stayed until the appellants have common legal representation | |
CATCHWORDS: | Integrated Planning Act 1997 s 4.1.52(b) – Uniform Civil Procedure Rules r 78, r 81 – parallel appeals against Council refusal of a development application by applicant and new owner of site where the applicant’s land had been sold by mortgagee to the new owner – appellants presented divergent approaches – applicant subsequently displaced when new owner’s director acquired his rights, removed as appellant by Court of Appeal and replaced by the director – director and new owner subsequently engaged separate legal representation occasioning confusion to other parties and uncertainty as to whether the original proposal or a changed one was being propounded (one version in each appeal) – respondent Council successfully applies for consolidation and a stay until the appellants have common legal representation. | |
COUNSEL: | A Greinke for the Appellant in BD1313/03 J Houston for the Appellant in BD4569/04 A Skoien for the Respondent in BD1313/03 and BD4569/04 E Hussey (solicitor) for the Second Respondent in BD1313/03 and the Co-Respondent in BD4569/04 R Yuen (solicitor) for the Fourth and Fifth Respondents in BD1313/03 and the Second Co-Respondent by Election in BD4569/04 Third Co-Respondent by Election in 4569/04 was self represented | |
SOLICITORS: | Morgan Conley for the Appellant in BD1313/03 John M O’Connor & Company for the Appellant in BD4569/04 Moreton Bay Regional Council Legal Services Department for the Respondent in BD1313/03 and BD4569/04 Crown Law for the Second Respondent in BD1313/03 and the Co-Respondent in BD4569/04 Nicholsons Solicitors for the Fourth and Fifth Respondents in BD1313/03 and the Second Co-Respondent by Election in BD4569/04 | |
There are two developer appeals before the court, both complaining of the refusal by the applicant Council’s predecessor (Pine Rivers Shire Council) of a development application made by Donald Gordon Ogle on or about 21 June 2002; his application was for a material change of use for low density residential subdivision of a 440 hectare site (comprising some 207 allotments of an average area of 5,714m2 and leaving some 292 hectares of public open space). His appeal BD 1313 of 2003 was lodged on 28 April 2003. The other appeal was lodged on 15 December 2004 by Tendiris Pty Ltd. In each appeal the application of present concern is one filed by the Council on 21 May 2009. The Council asks that the Tendiris appeal be dismissed, alternatively that Tendiris be removed as appellant, Mr Smits to be substituted as appellant in its place, this to be accompanied by further orders (counterparts of which are the relief sought in BD1313 of 2003) that the appellants in these two appeals have the same solicitors on the record, an order that the appeals be consolidated, alternatively be ordered to be heard together, with directions for future steps also sought.
It is highly unusual to have parallel developer appeals on foot in respect of the same Council determination. I have to take responsibility for that course being pursued, the reasons for which are recorded at Ogle v Pine Rivers Shire Council [2005] QPELR 291. In summary, Mr Ogle’s site had been sold to Tendiris by a mortgagee exercising power of sale. Tendiris had applied to be added as an appellant in BD1313 of 2003. It was held that its status as “applicant” for the development application had been established in the circumstances sufficiently to entitle it to pursue an appeal against Council’s refusal. It and Mr Ogle were hostile to each other; he was seeking to protect and exploit whatever advantages he had as the maker of the development application and as the appellant. Tendiris did not want its ability to pursue the application and appeal compromised by anything Mr Ogle, strategically placed as he was, might do or not do. A similar situation arose in Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 41.
It was thought untenable to have in a single appeal proceeding multiple appellants with interests that did not coincide, and to have them separately represented. For that reason, the outcome was a new separate appeal by Tendiris, authorised by the court. The appeals came to exhibit differences. That of Tendiris attracted additional co-respondents by election, one of whom (Mr Honor) appeared at the hearing on 8 July 2009. The provisions of Division 10 of Part 1 of Chapter 4 of the Integrated Planning Act 1997 (IPA) required notice of the new appeal to be given to submitters such as Mr Honor, who had not taken up the opportunity to join in the Ogle appeal. Mr Honor expressed the concern which the others in that category probably share, that the opportunity to be heard on the merits of the development proposal when the time comes will be lost if the Tendiris appeal (4569 of 2004) is summarily disposed of. There is little attraction in depriving those who took up their second (but not their first) opportunity to have a say being deprived of it in this way.
Tendiris wishes to propound a revised development proposal. This is one of the difficulties the Council points to in support of its approach of seeking to have identified a single developer-adversary. The Court of Appeal has taken the view that at any one time in the life of an appeal under Chapter 4 of IPA “there will be only one party with whom the local authority must deal as the applicant”: Ogle v Pine Rivers Shire Council QCA [2008] 232 at [26], alluding to Sushames v Pine Rivers Shire Council [2007] 1 Qd R 382; [2006] QCA 171. It had been noted at para [11] that Mr Ogle and Tendiris propose “different forms of development in their respective appeals”, on the face of things something which might cause embarrassment, although one would expect that the “owner” of the development application, rather than the owner of the land for the time being, would have the stronger claim to recognition. In Sushames at [15] it was said:
“[15] It should also be emphasised that an application for a development approval contemplated by the IPA is one coherent proposal, which is put forward as such and is to be assessed as such. That application is, necessarily directed by an applicant. When the IPA speaks of “the applicant” as “the person in whom the benefit of the application vests”, it is referring to the person or group who, at the time of the appeal, is exclusively entitled to control the application as the person with the beneficial interest in the application for the development permit. Importantly, the provisions of the IPA do not envisage a multiplicity of such “applicants” at any one time. The IPA does not envisage that an application to be assessed may be advanced or modified or withdrawn by several divergent voices. That situation would be intolerable for an assessment manager.”
Only one ‘applicant’ can have “the running of an application at any one time”. See [26].
Whatever might happen in other contexts, in the present situation, the propounding of different proposals may, as things now stand, not be productive of particular difficulty. The court accepts from Mr Houston a summary of the circumstances in terms of Tendiris contemplating changing the proposal by reducing its scale in deference to what it took to be the Council’s attitude to development on the site so far as that could be gleaned from Council’s “information request”. As things have turned out, it seems, Council officers are as opposed as ever. Matters have proceeded more energetically in Tendiris’ appeal than in the Ogle one, to the point that directions have been given for the determination as a preliminary issue whether the changes Tendiris has in mind represent “minor change” for the purposes of s 4.1.52(2)(b) of the IPA with the consequence that the Tendiris appeal is a suitable vehicle for deciding the fate of the amended proposal. The court hears that (whether he was entitled to exercise a voice or not) Mr Ogle participated in the interlocutory steps to deal with the preliminary point, such as exchange of “pleadings”; it is said that he raised the Southeast Queensland Regional Plan which had supervened as an obstacle to the form of development envisaged by him being changed.
The preliminary point remains to be resolved. If Tendiris has its way, its appeal will proceed by reference to the changed application; if it is does not have its way, it can proceed in its appeal on the basis of the Ogle proposal.
There was some discussion on 08 July 2009 as to whether it might be preferable to have the preliminary point (which the court was told the Council was responsible for raising) determined before the 21 May 2009 applications were considered, on the basis that one or other of the appeals might go away. Although at one stage attracted to that notion, I have decided not to pursue it. The “preliminary point” may well consume a great deal of resources (it was said to have been set down for some days); I think it is preferable for the parties to have more time to consider whether it might not be better now to leave the “preliminary point” for the main hearing.
The significant event which has changed much and brought about the Council’s applications is the removal of Mr Ogle from the picture. Tendiris, or its shareholder/director, Mr Smits, brought about that event by obtaining (via Tendiris) an assignment to him of the mortgagee’s rights. Tendiris applied unsuccessfully to this court to have Mr Ogle removed as appellant, but persuaded the Court of Appeal that this should happen in accordance with Rule 69 of the UCPR in Ogle v Pine Rivers Shire Council [2008] QCA 232. Keane JA commenced his reasons for judgment:
“[1]On 21 August 2007 the Planning and Environment Court (“the P & E Court”) refused the application of Tendiris Pty Ltd (“Tendiris”) under r 69 of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”) for the removal of Mr Ogle, and the substitution of Tendiris, as the appellant in Appeal No BD1313 of 2003 presently pending in the P & E Court.
[2]On 20 September 2007, pursuant to s 4.1.56 of the Integrated Planning Act 1997 (Qld) (“the Act”), Tendiris filed an application in this Court seeking leave to appeal against that decision.
[3] Mr Smits is the sole director of Tendiris. Tendiris subsequently assigned all its rights as mortgagee of the land, including such rights as it has in respect of Appeal No BD1313 of 2003, to Mr Smits. On 31 March 2008 this Court ordered, by consent, that Mr Smits be included in Tendiris’ application for leave to appeal as a second applicant, and that the Pine Rivers Shire Council (“the Council”) be included as a second respondent. I note here that the Council did not take an adversarial role in the hearing of the application in this Court.
[4] Tendiris’ contention is that, in terms of r 69(1) of the UCPR, Mr Ogle has “ceased to be an appropriate or necessary party” to Appeal No BD1313 of 2003, and should be removed from that appeal, and that Tendiris, or Mr Smits, should be included in the appeal as the appellant as “a person whose presence … is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding”.”
It is not entirely clear why Mr Smits (the second applicant) was selected to replace Mr Ogle in BD1313 of 2003 rather than Tendiris, as Tendiris had originally proposed. Para [4] set out above suggests it did not matter which was selected. In the paragraph of his reasons immediately before stating his conclusions, his Honour said:
“[32]In summary, when the dust thrown up by the arguments advanced on Mr Ogle’s behalf is allowed to settle, the position starkly revealed is that there is no good reason why Mr Ogle would wish to pursue his appeal, and no apparent prejudice to him in being removed as applicant in that appeal and being replaced by Tendiris or Mr Smits. On the other hand, it is obviously undesirable from the point of view of all the other parties that the appeal proceed on the basis that two forms of development are being propounded by appellants speaking with different voices. These matters are plainly relevant to the exercise of the discretion conferred by r 69(1) of the UCPR. They provide a compelling case for the exercise of the discretion in favour of the removal of Mr Ogle and his replacement by Tendiris or Mr Smits in that proceeding. The learned primary judge did not take these matters into account at all, and, consequently, his discretion miscarried.”
Mr Smits may well have been selected as the current “owner” of the development application, replacing Mr Ogle (via Tendiris).
Mr Skoien (for the applicant Council) put in evidence the Transcript of the argument in the Court of Appeal. He made particular reference to a passage setting out discussion between the Court and Counsel representing both Tendiris (first applicant) and Mr Smits (second applicant) – who was not either Mr Houston (who represented Tendiris in this court) or Dr Greinke (representing Mr Smits as the appellant in what was once the Ogle appeal). As it happens, Dr Greinke represented Mr Ogle in the Court of Appeal. The passage see Transcript 79-81 followed Counsel’s statement at 23 (specifically referred to by Mr Skoien): “Courts generally don’t like parties who blow hot and cold as it’s sometimes termed – or approbate and reprobate.” The more pertinent passage is:
“Keane JA: What necessitates the application then for the removal of Mr Ogle and the substitution of your client in B1313 of 2003 as opposed as just letting that thing wither on the vine and you pursue your own.
Counsel: Well, for it to wither on the vine, Mr Ogle has to be removed as a party so obviously -----
Keane JA: Otherwise you’ve got two appeals going forward which are different in their – which are different in the proposed outcomes.
Counsel: That’s so. I suspect the thinking at the time of the application for Mr Smits to be substituted for Mr Ogle was based upon what your Honour just said that because they were two appeals which related to two different forms of the application albeit the one application, then it would seem a bit odd for the one party to be running two different forms of the application but I think we can look at it with fresh eyes today with the benefit of the thinking that’s gone into the preparation of this case. Really, the outcome that the applicants seek is just one appeal on foot with only one appellant, be it Smits or Tendiris.
Muir JA: And it doesn’t matter which appeal.
Counsel: It doesn’t matter which appeal, exactly.
Muir JA: So where did that timing problem go that you raised at the beginning?
Counsel: The timing problem only arises if your Honours (a) entertain the equitable – the sale point and the point before that just – the equitable assignment point.
Keane JA: Which meant that Tendiris didn’t have – it didn’t itself any basis for commencing its appeal.
Counsel: Correct. Even though the Court – the Planning and Environment Court said that it did have if this Court upheld the equitable assignment point and the sale point as developed by our learned friend here it would involve this Court saying, in effect, retrospectively, Judge Robin was wrong in that respect but our answer to that is to say, well, things have moved on from there. It’s not just Sushames that has happened since Judge Robin’s decision, you have had the assignment of the mortgage from EHMS the mortgagee who sold the land to Tendiris. They have now assigned the mortgage to Tendiris and then subsequently and perhaps somewhat confusingly, Tendiris has signed the mortgage to Smits.
Keane JA: Well, subsequently, and irrelevantly, surely -----
Counsel: Yes.
Keane JA: ----- for our purposes.
Counsel: I would think -----
Keane JA: Mr Smits and Tendiris can play whatever games they like amongst themselves but it’s got nothing to do with us, has it?
Counsel: That’s so, your Honour, and your Honour used the expression, you know, they speak with one voice and your Honour indicated that that was the – in effect, the effect of this Court’s decision in Sushames. May I point out your Honour used that precise expression in the case. Your Honour was always consistent wand that was, I think, in paragraph 16. Your Honour used exactly the same expression in talking about nothing standing in the way of a group of parties being involved.
So with respect, we agree with your Honour’s suggestion that that’s irrelevant. The only reason I mentioned at the tail end of my argument that Smits may need to – or Tendiris may need to take over both was, as I said, on my feet, it occurred to me that that had the appearance of being inconsistent with our own argument about the one appropriate applicant rule.
But I’ll say self critically I should have, really, had in mind at the time your Honour’s observations in Sushames about the one voice. I wouldn’t have even volunteered that if I had had the one voice aspect in mind. So it is a distraction as your Honour says. It’s not adverse to the applicant’s interests. This Court doesn’t need to rule on it.
The convenient course is for the Court to make an order that Ogle be removed as a party to that appeal and that time be extended, if your Honours consider the equitable assignment point and the sale point and decided against us, time is extended to, you know, in effect, two weeks after the date of the Judgment of this Court to permit an appeal by Smits because he is now the equitable owner of the rights under clause 38 to institute an appeal and be substituted for Ogle in his appeal. You might then end up with two appeals but it’s the one applicant, the one application and, effectively, the one appeal.
Keane JA: and it wouldn’t matter to you if we said substitute Tendiris, would it?
Counsel: No, no, it wouldn’t. …”
It is odd to find that Tendiris and Mr Smits are now resisting the concept of a single appeal proceeding in this court. There is a flavour of Mr Smits and Tendiris being concerned they have found themselves in a legal minefield in which the war may be lost because of some unforseen technicality; I have some sympathy for that approach in respect of the status of the Tendiris appeal (notwithstanding that there seems to be nothing in Ogle v Pine Rivers Shire Council [2008] QCA 232 raising any doubt). I have far less sympathy regarding the fears of a similarly unexplained character expressed as to possible unforseen, unjust outcomes if consolidation of the two appeals in this court be ordered, rather than there being two separate appeals “heard together”. Mr Houston was at pains to preserve the earlier appeal date attaching to Mr Ogle’s appeal. His client should be protected there in my opinion.
The Council and the other parties in my judgment are entitled to sympathy and to whatever relief the court may justly be able to provide in the regrettable new circumstances in which, notwithstanding Mr Ogle’s departure from the scene, they continue to face two appellants, now (although not at the Court of Appeal stage last year) separately represented. I accept from Mr Skoien that communication has proved difficult with responses coming in along the lines that the other appellant or his or its lawyers ought to be looked to in particular respects. Mr Skoien’s first written outline gives chapter and verse for a general proposition that the two appellants appear to be reserving as much room for manoeuvre as they possibly can, positions being indicated “as presently advised”, and the like. The adverse parties should not be compelled to litigate in such an unsatisfactory way unless there is no way to avoid it.
Except for the aspect of propounding different developments, which on examination may show no sinister aspect, there would seem to be no basis whatever for thinking that Mr Smits’ interests and his company’s are in any way conflicting. It is astounding that the prospect of an end to conflict between appellants which seemed to be removed in August last year may have revived. Mr Houston was not able to suggest any likely conflict of interest (nor, my enquiry revealed, was he in a position to offer an undertaking that his client would pay additional costs of all other parties incurred by reason of the new separate representation of the two appellants). Again, the explanation seems to be some vague fear that an otherwise favourable outcome might be lost unless both appeals are kept going independently.
The Council has abandoned any attempt to strike out or dismiss the Tendiris appeal, likewise (as I understood Mr Skoien) any attempt to substitute either appellant. It has abandoned pursuit of an order that the two appellants have the same solicitors on the record – for which the court is grateful, assuming (for the sake of argument) that it would have jurisdiction to make an order of that kind regarding a litigant’s representation (which strikes me as a doubtful proposition). What is sought instead, and is likely to have the same practical effect, is an order that the appeals be stayed until the prospective appellants have common legal representation. Such an order ought to be made, to apply in both appeals.
There is no need to repeat here what was said in reference to the case of Lewis v Daily Telegraph (No. 2) [1964] 2 QB 601 in Ogle v Pine Rivers Shire Council [2005] QPELR 291 at [27]. In Lewis, according to the headnote, a consolidated “action could not proceed for trial until a single solicitor was placed on the record for both the plaintiffs.” Lewis does not propound any universal rule. Instances of refusal to require common representation may readily be found. In Council of the City of Hawkesbury v Mushroom Composters Pty Ltd [1995] NSWLEC 87 a significant factor was the late stage at which the court was asked to require applicants to consolidate their legal representation. Federal Court decisions which refer to Lewis and bespeak a concern at the unnecessary complications and costs generated by separate representation include Hamod v State of New South Wales [2001] FCA 157 at [57] and Kirby v Centro Properties Ltd [2008] FCA 1505. Even when no point is taken courts may observe upon departures from the Lewis approach; Minister for Planning v Gales Holdings Pty Ltd [2006] NSWCA at [4]; Fox v Olsen [1999] SASC 411 at paragraph [19]. A recent discussion of the authorities, in the course of refusing an application for representation by separate counsel for each of two plaintiffs is Dehsabzi v John Fairfax Publications Pty Ltd (No. 3) [2008] NSWDC 273. The present is a proper case, as the evidence stands, for requiring common representation if the respondent Council and the various co-respondents are to be required to face the appeals. A stay of the kind now sought by Mr Skoien was said to represent the usual practice in Hamod, loc cit.
In my view, the appeals ought to be consolidated. Rule 78 of the UCPR, which may be resorted to pursuant to s 3(2) of the Planning and Environment Court Rules, provides:
“[r 78] Consolidation of proceedings
78The court may order that 2 or more proceedings be consolidated if –
(a)the same or substantially the same question is involved in all the proceedings; or
(b)the decision in 1 proceeding will decide or affect the other proceeding or proceedings.”
Should any unforeseen unjust consequences ensue from consolidation (which is a rarity in this court, if it ever happens), the order can be varied under r 81, which specifically entitles the court to order the proceedings be separated. The removal of Mr Ogle from the picture has removed the whole basis on which the court permitted (indeed encouraged) the pursuit of parallel appeals. The likelihood of divergent courses being pursued by Tendiris and Mr Ogle was patent. No proper rational (or other) basis on which Tendiris’ and Mr Smits’ interests might conflict was suggested.
It has not been suggested what further directions might be given at this stage. The parties may be able to work things out given the court’s intimation of its favouring consolidation.
Further, in respect of different development proposals being advanced (even by the same appellant), Mr Houston referred to Ecovale v Gold Coast City Council [1997] QPELR 344 at 346 as an instance of three different plans being presented to the court, of which Judge Quirk selected one. What happened was noted in the Court of Appeal at [1999] 2 Qd R 35, 38 and 42 without any critical comment. This strikes me as an unsurprising example of a practical approach which may be adopted from time to time. In Ecovale, the developer’s preferred plan was to incorporate Easement A for access purposes, if that were not possible, Easement B, failing which there was a Proposal C, not reliant on provision of an easement (but involving abandonment of a drive-thru bottle shop). As indicated elsewhere, I am not particularly troubled in the present circumstances about the propounding of different development proposals, not anticipating any conflict between the current appellants. Presumably, the preferred proposal is Tendiris’ one. It will be determined at a preliminary hearing or at the hearing of the consolidated appeals whether that is the one upon which the court ultimately adjudicates. Given submissions about it, to this stage, I am not persuaded that provided the appellants do not argue inconsistently with each other, they may not propound a changed proposal, then revert to Mr Ogle’s one if the court will not allow them to proceed to a merits hearing on the changed one. Ecovale was based on the law before IPA, but it would equally apply under IPA in my view. It offers an illustration of the common practice of a preliminary hearing about a “minor change” not being resorted to. A developer runs a risk in leaving a “minor change” issue for resolution at the hearing. Cf Heilbronn & Partners Pty Ltd & Ors v Gold Coast City Council [2005] QPELR 386, where adherence to the original development proposal was not feasible.
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