Stevenson Group Investments Pty Ltd v Nunn

[2009] QPEC 82

[2009] QPEC 82

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

Application No 1861 of 2009

STEVENSON GROUP INVESTMENTS PTY LTD

Applicant

and

GRAHAM NUNN

and

CODD STENDERS

and

TANGALOOMA PTY LTD

and

TANGALOOMA ISLAND RESORT PTY LTD

and

BRISBANE CITY COUNCIL

and

RJ and RM LEVER PTY LTD

and

STATE OF QUEENSLAND and OTHERS

and

GM and JM McMAHON (Trustee)

and

LWH and JA DAVIS

and

GW SIMMONS (Trustee)

and

PR and E HATHERELL

and

PAG and RJ ARNAUD

and

HIDEBOURNE PTY LTD (Trustee)

and

WJ WILLIAMS

and

R SHAW & SA HAWKINS (Trustee)

and

K & N GEDDES PTY LTD (Trustee)

and

QUEENSLAND FIRE & RESCUE SERVICE

and

TANGALOOMA PHOTO SHOP PTY LTD

and

TANGALOOMA MORETON ISLAND RESORT

Respondent

First Respondent

Second Respondent

Third Respondent

Fourth Respondent

Fifth Respondent

Sixth Respondent

Seventh Respondent

Eighth Respondents

Ninth Respondent

Tenth Respondent

Eleventh Respondents

Twelfth Respondent

Thirteenth Respondent

Fourteenth Respondents

Fifteenth Respondent

Sixteenth Respondent

Seventeenth Respondent

Eighteenth Respondent

BRISBANE

..DATE 11/09/2009

ORDER

CATCHWORDS: 

Originating application by owner of multiple units in a building for declaration it was unlawfully constructed, that respondent private certifier was not empowered to approve it - court had ordered joinder of many other owners as application appeared to contend they must vacate - amendments to application did not overcome deficiencies the court had previously identified - pleadings directed, rather than further amendment and particularisation

HIS HONOUR:  This is an extraordinary proceeding in my experience.  An originating application in which the owner of six units in, what I believe is, a five-storey building at Tangalooma Resort, Moreton Island, referred to as Deep Blue One, seeks declarations from the Court that the construction has not been lawfully approved.

That construction was apparently complete in 2005 and it was effected pursuant to a building permit granted by the first respondent, a private certifier. 

It was some time after that, I believe in 2006, that the applicant acquired its units which it says it has not occupied yet because of concerns about the building.  I accept that the proceeding which was commenced on the 3rd of July this year was inspired by frustration that other proceedings including appeal number 1002 of 2009 commenced about 14th of April this year by the third respondent and also appeal 1003 of 2009 commenced then by Brian George Osborne - likewise applications in the Commercial and Consumer Tribunal involving inter alia Mr Osborne, the present applicant and the Queensland Building Services Authority - have not produced any resolution of the issues of concern.  The proceedings mentioned in this Court relate to enforcement proceedings undertaken by the Brisbane City Council which presumably wishes to have matters to do with the development regularised.

On the 31st of July this year the application came before Judge Wilson when there were only four respondents.  His Honour considered that the Council ought to be brought in because of its potential interest in issues to do with assessment and also all of the other unit owners in the building because - where the relief sought was stated in the "grounds" in the originating application - it was stated that "the building work which has occurred is unlawful and should be vacated".  There was no suggestion in the list of declarations sought, as set out at the beginning of the originating application, that anything so dramatic as a forced evacuation might be required (which I for one would have expected), although item (m) was "such further declarations or orders as the Court considers appropriate".

Mr Stevenson, appearing for the applicant (he said there was no relationship), insists that it's not sought to force anyone to vacate the premises although that might be necessary if, for example, the Building Services Authority has its way and further work has to be done on the building.

Judge Wilson ordered not only the addition of new parties but also that there be some revision of the originating application which he criticised in general terms as lacking "clarity, cohesion and necessary particulars".  He said that both the relief sought and the grounds relied on required further thought and particularisation.  Nothing of any significance has happened, although there have been some minor changes, either in the time limited by his Honour or since he fixed today as the next mention date.

The applicant omitted to change the heading of the proceeding to name all respondents, the cast including the "Chief Executive, Department of Infrastructure and Planning" and "Chief Executive, Department of Community Safety", both represented by Ms Hussey today. They were thought by the applicant and its advisors to be relevant parties in the circumstances, the former on account of a general interest in planning matters, since one of the issues appears to be whether the Council or Mr Nunn ought to have been assessment manager - the latter representing the Queensland Fire and Rescue Service who unsurprisingly, in my view, and particularly in light of experience in other matters (such as Livingstone Shire Council v Brian Hooper of M3 Architecture [2004] QPELR 308 at [45] ff), by law had some role to play in respect of the design of buildings of the size involved here.

It was, although it may not be clear from the originating application in any of its forms, that there is some criticism of the performance of the Queensland Fire and Rescue Service in Mr Stevenson's submissions, presumably because they were prevailed on to become involved and approve building work after the event.  Ms Hussey expressed an interest in obtaining particularisation on that score. 

What Mr Stevenson hoped to achieve today was a set of directions of a standard kind recording the Court's satisfaction regarding compliance with relevant provisions about the giving of notice of the originating application.  The circumstances in respect of service, which in most cases they've attempted by post it seems, are such the Court couldn't safely make such a declaration. 

I think it's premature to make the other directions set out which contemplate written requests for the giving of particulars, identification of the issues in respect of the particulars that might emerge.  They're after disclosure and inspection of documents, identification of experts, activities involving them, preparation of joint reports, mediation and the like.

In the interest of efficiency it seemed to me a good idea to eschew the customary exercises about particulars and to seek to cover that by an order for a statement of a claim to be provided by the applicant, which ought to contain everything likely to be requested and given by way of particulars.  It is not appropriate to shut any party out at this stage, but there has been a good deal of discussion of pertinent matters.

The case is sufficiently complex to require that it progress further before the issues can be confidently identified and the scope of disclosure clarified.  I'm particularly anxious at those brought in pursuant to Judge Wilson's concern that everybody affected or potentially affected by the orders that might be made in the proceeding having to make disclosure.  It seems unlikely to me they'd have anything.

Ms Hussey's clients, one of them at least, would appear to be anxious to be quit of the proceeding - as some of the other new respondents may be.  As it happens, about half of them are represented by Mr Johnston who also represents the first, second and third respondents.  There maybe potential for conflict there but as things stand at the moment I can well understand unit holders in the building being anxious to make common cause with the first, second and third respondents to establish what they paid good money for, presumably, is lawful there.

There is a Local Plan for Moreton Island which Ms Johnston, representing the Council, informs the Court contemplates a tourist development at Tangalooma at a fairly modest scale - as she put it, be constructed to take the appearance of houses.  Those are the arrangements presently applicable under Brisbane City Plan 2000.  I haven't seen the structure of present concern or its siblings numbered 2 and 3, the state of construction of which I'm uncertain about; it's unlikely they have the appearance of houses.

The potential justification for that disharmony with what would appear to be the Council's current planning vision for Moreton Island is an old approval dating back to 1983.  Ms Williamson's affidavit exhibits a few pages of typewritten conditions which aren't particularly informative.  What is likely to be crucial is the content of the plans which development approved in 1983 was to be "generally" consistent with.

The applicant contends that an appropriate level of consistency does not exist and that the whole notion of engaging a private certifier by way of working out the 1983 approval was wrong, that there ought to have been an impact assessment process under the Integrated Planning Act 1997, City Plan 2000 and the current law in respect of development around 2004.

There've been charges of delay flying against Mr Johnston's clients in respect of conduct not only in this proceeding but the other ones - the others in this Court and proceedings in the Tribunal.  I understand the same situation pertained before Judge Wilson and I feel unable to make any assessment about it.  I express my considerable concerns that Mr Johnston's availability is presented as a reason for an unfortunate extended delay before the matter could be mentioned again and before a Defence to the Statement of Claim, which I foreshadowed that I think the applicant should produce, can be arranged. 

The matter is sufficiently complex to persuade me that it's both advantageous and preferable for Mr Johnston who's familiar with it to continue to play his role.  His proposed order today was one requiring the applicant to provide a further amended originating application.  Mr Stevenson's concern that what he faced was an application without any formal document being provided for relief under rule 280 of the UCPR has not been borne out. 

In my opinion it's not a good idea in the circumstances to require a new originating document to be prepared. I think it's desirable to seek instead the rather greater focus that one can expect from a statement of claim complying with the rules of pleading and I determine that the applicant ought be ordered to provide one by 2nd of October 2009 which was the date ultimately proposed by Mr Stevenson in light of the delay which Mr Johnston's situation dictated. 

That statement of claim should be self-contained, that is, understandable without reference to other documents.  It ought to be prepared after consideration of the matters raised in Hopgood Ganim's letter of 17th of August 2009 exhibited to Ms Williamson's second affidavit, and also the matters mentioned in argument today by Mr Johnston.  That comment is not intended to suggest that every point made ought to be satisfied.

I think there's been rather too much protestation of confusion and that Mr Johnston's clients have a pretty good idea of what they face and haven't really been embarrassed by references to section 5.3.5 of the Integrated Planning Act 1997 which appear to be to those sections in their original form when they dealt with private certifiers rather than their form in recent years when they've dealt with other topics such as infrastructure and charging.

Particular matters to be dealt with in the statement of claim which ought to contain the complete and final statement of declarations and orders sought are that relief is sought only in respect of Deep Blue One.  It's necessary to avoid causing alarm among persons connected with Deep Blue Two or Deep Blue Three.  It's told to me from the Bar table that, notwithstanding that the development application and/or development approval in 2004 might have related to all three buildings, separate approval processes have been invoked in respect of Two and Three, Mr Stevenson suggesting that this bespeaks some acknowledgment that things weren't done properly for Deep Blue One.

Particulars which ought to be included, and this is not an exclusive list, include, in relation to referral agencies, identification of all those said to be relevant and the circumstances that they have triggered their involvement, also any complaint about any referral agency's performance of its functions.

Apropos paragraph 10, the correct form and correct assessment manager should be identified rather than there be a repetition of assertions that the correct ones were not involved.

Apropos paragraph 11, the circumstances which made the application impact assessable should be specified.

Particulars ought to be given of the way in which Mr Nunn "acted outside his authority under Chapter 5, Part 3" of IPA, which is presumably the "Act" referred to.
Apropos paragraph 16, particulars ought to be given sufficient to support the allegation that the development hasn't been constructed in accordance with the approved drawings which are presumably those approved by Mr Nunn.  It may not be possible to give a complete list of departures from the drawings but it appears to be essential to give enough to show discrepancies of significant concern in a practical sense.

The further development approvals required mentioned in general terms in paragraph 20 should be particularised and the ways in which "the building work as constructed is not generally in accordance with the original approval" as set out in paragraph 21.  I repeat what I've said in relation to lack of accord with approved plans, although it appears to me likely that the issue alluded to at paragraph 21 is at the heart of the controversy which is likely to come down to whether Mr Nunn was justified in proceeding as a private certifier to a grant of approval in the way that he did.

In other contexts, it has emerged that reliance on relatively ancient development approvals was now impossible, to the frustration of developers.

I'm assuming that non-compliance with the conditions as shown in drawings approved on 28th July 2004 covers the same ground as Item 16; if it doesn't, additional particulars should be given.

That statement of claim should be sent to all parties.  I don't propose to give any special directions in relation to service, in particular, one to immunise the applicant against problems should some deficiency be complained of in the future.  I accept the likelihood is that post will be used.  In at least one instance, a recipient of the originating application by that means has been accommodating enough to return a signed acknowledgment.

It remains to be seen whether any of the other respondents will make a complaint about lack of understanding of what was served on them which, in the case of some, appears to have followed a meeting at which explanations, the detail of which is unknown to the Court, may have been given.

As Mr Johnston says, given the lack of reference to those respondents in the title in the documents served, some may have been mystified as to why they ought to enter an appearance or, indeed, whether they were entitled to.

I am going to make a special order granting liberty to all respondents, other than the first four, to signify in writing to the Registrar (if it be the case) that they do not wish to participate in the proceeding, in which event they are excused from further participation and cease to be a party.

The statement of claim which the applicants provide is to be provided by the 2nd of October and a defence by those parties wishing to defend by the 22nd of October.  That last detail is inserted in an attempt to keep the matter moving forward as well as can be done in the circumstances.  It remains to be seen whether the mention which I fixed for the 15th of October 2009 leads to any additional time being allowed for a defence.  Whether or not it happens may depend on the quality of the statement of claim.

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