Stewart-Zerba v Brisbane City Council
[2006] QPEC 6
•14 February 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Stewart-Zerba v Brisbane City Council & Anor [2006] QPEC 006
PARTIES:
ANNABELLE STEWART-ZERBA
Appellant
V
BRISBANE CITY COUNCIL
Respondent
And
CONSOLIDATED PROPERTIES GROUP PTY LTD
Co Respondent
FILE NO/S:
BD 1313/2004
DIVISION:
Planning and Environment
PROCEEDING:
Application in a proceeding
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
14 February 2006
DELIVERED AT:
Brisbane
HEARING DATE:
19 January 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Order that the State of Queensland be substituted for Consolidated Properties Group Pty Ltd as the co-respondent in the appeal
CATCHWORDS:
PLANNING LAW – CONSTRUCTION OF LEGISLATION – meaning of ‘applicant’ under Integrated Planning Act 1997, Sch 10 – whether assignment of interest under preliminary approval for development qualifies assignee as an applicant who is entitled to be substituted for original applicant in submitter appeal
PLANNING LAW – PRACTICE AND PROCEDURE – discretion to substitute parties under Uniform Civil Procedure Rules, r 69
Integrated Planning Act 1997, Sch 10
Uniform Civil Procedure Rules, r 69
Hymix Industries v Alberton Investments [2001] QCA 334
Ogle v Pine Rivers Shire Council [2005] QPELR 29
Sushames v Pine Rivers Shire Council [2005] QPEC 096.COUNSEL:
Mr M Hinson SC for the Applicant, State of Queensland
Mrs Stewart-Zerba in person
Ms K Johnston, Solicitor, for Brisbane City Council
Mr T Stork, Solicitor, for the Co-respondentSOLICITORS:
Crown Law for the State of Queensland
Mrs Stewart-Zerba on her own behalf
Brisbane City Legal Practice for the Respondent
Deacons for the Co-respondent
This is an application by the State of Queensland to be substituted for Consolidated Properties Group Pty Ltd as the co-respondent in this submitter appeal. The application was supported by the Council, and Consolidated Properties, but opposed by the appellant, Mrs Stewart-Zerba.
Her appeal is against Council’s decision to grant Consolidated’s application for preliminary approval to demolish a building on land at 90 Coonan St, Indooroopilly. The State has at all times been the owner of the land and Consolidated’s application to Council was properly accompanied by the State’s written consent[1]. Since the filing of the appeal Consolidated has abandoned its attempts to purchase the land from the State and no longer has, therefore, any commercial interest in it (or its own development application, or the preliminary approval it attracted).
[1] As required by the Integrated Planning Act 1997, s 3.2.1(3)(a)(ii)
Consolidated has executed a deed purporting to assign to the State whatever rights it has arising from its application and the preliminary approval.
The question to be determined is whether the State, as owner, qualifies as an ‘applicant’ under the Integrated Planning Act 1997 (IPA) and, hence, has a strong claim to be substituted for Consolidated. Schedule 10 defines an applicant for the purposes of IPA chapter 4 as ‘… the person in whom the benefit of the application vests.’ An alternative approach to the question is to ask whether, if there is uncertainty about that (absent the deed of assignment) the deed is sufficient to bring the State within the definition.
That is not the end of the matter, of course: qualification as an ‘applicant’ does not entitle the State to the relief it seeks, which remains a matter involving the discretion arising under r 69 of the Uniform Civil Procedure Rules[2].
[2]Ogle v Pine Rivers [2005] QPELR 291 per Robin QC, DCJ at 297
The alternative questions arise because two recent decisions of this court appear to reach different conclusions about the meaning and effect of the definition. They are Ogle v Pine Rivers [2005] QPELR 291 (Robin QC, DCJ) and Sushames v Pine Rivers [2005] QPEC 096 (Rackemann DCJ).
The State says that it qualifies as an ‘applicant’ if Ogle is followed; or in the alternative, by virtue of the assignment, it overcomes the hurdle raised by Sushames.
In Ogle the first question was answered in the affirmative. The appellant had previously owned the land, but it was later sold by a mortgagee in possession to the applicant who also desired to join the action as an appellant, over the opposition of the appellant/original owner, and a submitter. Under the mortgage the original owner charged and assigned to the mortgagee all his rights and interests in development applications relating to the land, and those rights were included in the contract by which the mortgagee sold to the applicant.
Robin QC, DCJ discussed, in some detail, the meaning of the words ‘benefit’ and ‘vests’ in the definition and whether a registered proprietor of land, even one who accedes to ownership at some time after the appeal has commenced, is capable of falling within the definition. His Honour concluded those words should not be construed in a technical or restricted way and, read in the context of other IPA provisions, could extend to include those later owners.
In Sushames the circumstances were not dissimilar to those arising here, although the original applicant opposed the substitution. Rackemann DCJ was unpersuaded that an owner, who had previously done no more than give its consent to an application, could later qualify as a person who stood possessed of the benefit of a development application; but, suggested that a party to which an applicant (within the definition) had assigned its rights might do so. He said:
[30] It seems to me that the better approach is to regard the extended definition as conferring upon the person who, for reasons other than the extended definition, stands possessed of the benefit of the application, the right to participate in the appeal in their own name and to identify that person by reference to matters concerning the application, rather than the potential benefit, in the broad sense, which might flow contingent upon an approval coming into effect (emphasis added)
While Mrs Stewart-Zerba’s submissions were primarily directed to what she contended was the inefficacy of the deed, she did appear at one point to argue that Consolidated is not an ‘applicant’ (and the State cannot, therefore, become one) because a development approval (which, under the definition in Sch 10, includes a preliminary approval) has already been granted. It is clear, however, that IPA uses ‘applicant’ in different ways - to describe, for some purposes, an applicant for an approval[3] but elsewhere, for the purposes of Chapter 4, to describe a party who has the benefit of an approval which is, however the subject of an appeal: ss 4.1.41(1), and 4.1.50(2); and the definition, for the purposes of that chapter, must be read in a way which accords with that usage.
[3] under Chapter 3
She also argued that the attempt to circumvent any potential difficulties with the definition by assigning rights or interests cannot succeed, because the deed either fails to assign anything, or it cannot do so. As to the first point she was critical of some of the phraseology of the deed, but I am satisfied it is sufficient to achieve its apparent purpose.
As I also understood her, Consolidated’s alleged inability to effect an assignment occurs because IPA s 3.5.28 attaches development approvals to the land, and they are not personal to the developer or owner who cannot, then, assign or deal with them. Reliance was placed upon a passage from the judgment of Atkinson J in Hymix Industries v Alberton Investments [2001] QCA 334 at para [22] but what fell from her Honour does not, with respect, support the proposition and is, in context, simply a re-statement of the import of the section.
On its face the section’s primary purpose is to ensure that changes of ownership do not affect the validity of approvals given in respect of the land[4]. Attaching approvals to the land, as the section does, is a mechanism to achieve this; it is not, however, an expression of an intent that the ‘benefit’ envisaged by the definition of ‘applicant’ for the purposes of Ch 4 in Sch 10 cannot include just such things as approvals. Indeed, it is difficult to see what benefit an applicant might have if an approval, or the prospect of it, is excluded.
[4] See, eg, the Departmental Explanatory Guide, p 112
As I understood the appellant’s further arguments, there is also nothing to assign because the preliminary approval has no substance, or value. Under the IDAS scheme, however, a preliminary approval cannot be said to be worthless. It is a form of conditional approval[5], but subject to the later grant of a development permit. Any subsequent attempt to resile or depart from its terms would attract, to the grantee, rights to pursue and obtain performance.
[5]Tower 720 Pty Ltd v Hervey Bay [2003] QPELR 178, at 187
As Mr Hinson SC pointed out, whatever the deed purports to assign, the right in which the State has a particular interest is that arising under s 4.1.43(3), which provides that in an appeal brought, as here, by a submitter, the ‘applicant’ is automatically a party. The importance of the right arises from the fact that, under IPA, in a submitter appeal the onus of establishing that the appeal should be dismissed falls upon the applicant: s 4.1.50(2).
I also accept Mr Hinson’s submission that it is unnecessary, here, to choose between the expansive construction of the definition favoured by Judge Robin QC, or the narrower interpretation favoured by Judge Rackemann. The State is an ‘applicant’ as defined on either approach.
In particular, I am satisfied the preliminary approval has substance and value, and is capable of assignment; and, that the benefit of it, and the development application, are effectively assigned by the deed[6] and the State has, through it (on the Sushames principle) ascended to the position where it is entitled to be described as an ‘applicant’.
[6] Ex RRH3, Affidavit of Robert Hutchings filed 18 January 2006
Other objections were raised, relevant to the discretion which then arises under UCPR r 69. There is a risk, it was said, that the use of an assignment to overcome the objections raised in Sushames could result in a multiplicity of applicants or ‘serial’ assignment. But only one substitution is presently sought and the possibility of later applications is hypothetical. The prospect of more parties was not seen as prohibitive in Ogden, where another applicant was added.
Some potential complexity with disclosure was also raised but there has not, to date, been any application suggesting present difficulties. The prospect of a need for non-party disclosure to be sought against Consolidated’s agents, if they are not obliged to transmit discoverable documents to the State, may be no different from the situation which already pertained. The position is, simply, unclear but there is nothing to suggest additional prejudice, relevant to the r 69 discretion.
The operation of r 69 is attracted by reason of r 3(2) of the Planning and Environment Court Rules 1999[7]. It provides that a party whose involvement in a proceeding is, in summary, necessary to enable effective adjudication or desirable, just and convenient for that end may be added. The absence of any continuing interest on the part of Consolidated, replaced by that of the State, and its qualification under either test as an ‘applicant’, plainly allows it to meet those criteria.
[7]Jimbelung Pty Ltd v Beaudesert [2005] QPELR 621
I will hear any further submissions the parties may have about further directions, or other orders they seek.
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