Sushames v Pine Rivers Shire Council
[2005] QPEC 96
•29 September 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Sushames & Ors v Pine Rivers Shire Council & Anor [2005] QPEC 096
PARTIES:
STEVEN SUSHAMES, SHARON SUSHAMES
and HILLMIR PTY LTD (trading as J B GOODWIN MIDSON and PARTNERS)Appellant
v
PINE RIVERS SHIRE COUNCIL
Respondentand
SONCOM PTY LTD
Co-Respondent
FILE NO/S:
BD107/05
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
29 September 2005
DELIVERED AT:
Brisbane
HEARING DATE:
04 July 2005
JUDGE:
Rackemann DCJ
ORDER:
Application dismissed
CATCHWORDS:
Whether owner of land can be joined as co-respondent – extended definition of “applicant” under IPA – person whom “the benefit of the application vests”
Cases cited:
Architects Dewar and Associates Pty Ltd v Redlands Shire Council [1997] QPELR 144
Bower v Brisbane City Council [1990] QPELR 127
Condo Fisheries Pty Ltd and Worts v Gold Coast City Council [2000] QPELR 5
Dorrstein v Brisbane City Council (1967) 14 LGRA 97
Frenbrow Pty Ltd v Brisbane City Council (1970) 20 LGRA 214
Graham-Hall Constructions Pty Ltd v Brisbane City Council (1973) 28 LGRA 101
Grimley Pty Ltd v Gold Coast City Council and Villa World Limited [1994] QPELR 252
Harmer v FCT (1989) 91 ALR 550
Ogle v Pine Rivers Shire Council and Ors [2005] QPELR 29
Wyndorne Pty Ltd v Townsville City Council [1988] QPELR 55
Young & Anor v Gold Coast City Council [1996] QPELR 399
Yu and Anor v Brisbane City Council & Anor [2005] QPEC 78
Legislation:
Integrated Planning Act 1997
Planning and Environment Court Rules
Uniform Civil Procedure Rules
COUNSEL:
Mr J Houston for the applicant (Cennzeal Pty Ltd)
Mr B Lillywhite for the appellants
Mr RD Forbes for the respondent
Mr J Haydon for co-respondent
SOLICITORS:
John M O’Connor & Co for the applicant (Cennzeal Pty Ltd)
MacDonnells for the appellants
Pine Rivers Shire for the respondent
Wendy Hart Solicitors for co-respondent
The appellants have appealed against the Council’s decision to approve, subject to conditions, the co-respondent’s development application for a material change of use to establish a child care centre on the subject land. The co-respondent (Soncom), the applicant which made the development application, no longer proposes to develop a child care centre on the subject land and is prepared to consent to an order allowing the appeal. Cennzeal Pty Ltd (Cennzeal), the registered proprietor of the subject land, wishes to defend the submitter appeal and seeks to be joined as a co-respondent. Soncom opposes Cennzeal’s application.
Cennzeal’s application is on the basis that it is an “applicant” within the meaning of that term in the Integrated Planning Act 1997 (IPA) for the purposes of an appeal. Cennzeal was not named as an applicant in the development application but, for the purposes of ch 4, the expression “includes the person in whom the benefit of the application vests”[1]. Cennzeal claims to be such a person by reason of its ownership of the subject land.
[1]See Sch 10.
At about the time the development application was lodged, Soncom and Cennzeal entered into a conditional contract of sale. That contract was subject to a number of conditions, including the following:
“7. Signing of applications and plans.
7.1. The seller agrees on behalf of themselves, their executors, administrators and assigns that they shall permit the buyer and consent to the buyer making the application for development approval for a child care centre over the proposed lot 19 only in its own name. In the event that any documentation is required to be signed by the seller as registered proprietor for the purpose of enabling the said applications to be made, the seller agrees to forthwith sign same free of charge upon production of the requisite documents to the seller by the buyer. In so far as any of the steps may involve the seller in any liability or responsibility whatsoever, the buyer agrees to indemnify and keep indemnified the seller from all costs, expenses, losses, damages and claims arising out of the application.
8. Right of entry
8.1 The seller hereby authorises the buyer to enter upon the proposed lot 19, or any part thereof with its surveyors, engineers, architects or other consultants for the purpose of making reasonable inspections, surveys and inspections thereof and grants the buyer or its nominee the right to erect any sign or signs and advertisements necessary to enable the buyer to pursue any development approvals that may be required. Any such entry shall be at risk and expense of the buyer and the buyer must act reasonably at all times when on the subject property.”
The development application was made by the Soncom, with the written consent of Cennzeal[2]. There is no suggestion the application was made by Soncom for or on behalf Cennzeal or that Cennzeal then stood possessed of any right or role in relation to the carriage of the application.
[2]As is required, by s 3.2.1(10), in order for the application to be a properly made application.
Soncom, which is controlled by persons with experience in the planning, building and operation of child care centres, devoted time and financial resources to the application, including the production of proposal plans and the retention of consultants with expertise in traffic engineering and town planning.
The development application was assessed and approved, subject to conditions, on 1 November 2004. A decision notice, dated 3 November 2004 subsequently issued. The submitter appeal was filed on 13 January 2005. The co-respondent’s entry of appeal was filed on 20 January 2005. A consequence of the submitter appeal is that the approval has not come into effect (s3.5.19).
Subsequent to the institution of the appeal, Cennzeal purported to terminate the contract between itself and the co-respondent. There was discussion about Cennzeal’s preparedness to enter into a new contract for a higher purchase price, but no new agreement was entered into and the parties now accept that there is no subsisting contract.
Although it now has no intention to develop a child care centre on the subject site, Soncom opposes Cennzeal’s application. A director of the co-respondent, Mr Paul Comiskey, deposed that his company brought to bear its expertise, experience, time and resources on the basis that it would be the one to receive the benefit of any approval of the application. He deposed that the company has a concern to ensure protection of his commercial knowledge and is not prepared to assign, to Cennzeal or any other person or entity, its intellectual property in the application and reports accompanying it.
Cennzeal’s application is for leave to be joined as a co-respondent (pursuant to rule 69 of the Uniform Civil Procedure Rules and rule 3(2) of the Planning and Environment Court Rules). The application is however, made on the basis that Cennzeal is an ‘applicant’.[3] If it is an applicant within the extended definition then, in accordance with the Act, it is a co-respondent and is entitled to be heard in the appeal as a party[4]. Whether it is an applicant depends upon whether it falls within the extended operation as being a person in whom “the benefit of the application vests”.
[3]T29 l18-19, T36 l54-55.
[4]S 4.1.43(3) and (7).
In Ogle v Pine Rivers Shire Council and Ors [2005] QPELR 291, Robin QC DCJ observed that the use of the words “benefit” and “vests” are unusual. There are however, two things which may be noted about the extended definition. Firstly, it deals with a person who has the benefit of an “application” rather than a person who would have the benefit of an approval. Secondly, the extended definition does not purport, by its operation, to vest the benefit of an application in any person. It simply gives to a person in whom the benefit of an application otherwise vests, the status of an applicant for the purposes of ch 4.
In Ogle, Robin QC DCJ referred to Harmer v FCT (1989) 91 ALR 550 at 562-63 where it was said that “[t]he weight of authority supports the view that in English law it (‘vest’) means, prima facie, vesting in interest, although whether it is so construed in a particular case will depend upon the context”. As explained in the same part of the reasons of French J, an interest is vested in possession when it gives the right to present enjoyment. Vested in interest refers to a present right to future enjoyment. By contrast with a vested interest, a contingent interest is one which will give no right at all unless or until some future event happens.
In Ogle’s case Robin QC DCJ concluded that one should not be tempted to read the subject definition as if ‘vests’ has any special technical meaning. In my view, the term should be construed, in the present context, as referring to a person who stands possessed of the benefit of the application.
It is not uncommon for someone other than the named applicant to stand possessed of rights with respect to the application and be, in effect, the real applicant. It frequently occurs, for example, that a consultant town planner or other servant or agent will make and pursue a development application in their own name for and on behalf of another in accordance with the instructions of the principal on whose behalf they act. Even in the context of earlier legislative regimes, which did not include the extended definition, the court generally permitted the principal to participate, in its own name, as applicant, in a subsequent appeal. [5] The applicant named in the application also was a competent party, notwithstanding the absence of any proprietary interest in the subject land or financial interest in the fate of the application[6]. The extended definition would, at the least, extend to the principal of the named appellant[7].
[5]See Dorrstein v Brisbane City Council (1967) 14 LGRA 97; Graham-Hall Constructions Pty Ltd v Brisbane City Council (1973) 28 LGRA 101; Young & Anor v Gold Coast City Council [1996] QPELR 399 and Grimley Pty Ltd v Gold Coast City Council and Villa World Limited [1994] QPELR 252; Condo Fisheries Pty Ltd and Worts v Gold Coast City Council [2000] QPELR 5 at 8, but see also Wyndorne Pty Ltd v Townsville City Council [1988] QPELR 55 (contra).
[6]Bower v Brisbane City Council [1990] QPELR 127.
[7]See Yu and Anor v Brisbane City Council & Anor [2005] QPEC 78.
It is also not uncommon, for someone other than the original applicant to subsequently become possessed of rights with respect to the development application. This not uncommonly arises in the context of a sale or lease of, or other dealing with respect to, the subject land by someone who was both an applicant for development approval and an owner. That is the example which is contemplated in the explanatory note, which states that the extended definition “is necessary to cover the situation where the original applicant passes on such benefits to another person through sale or lease etc of the premises the subject of the application”. Although the explanatory note speaks of passing benefits “through sale or lease etc”, the fact of a sale does not[8] itself pass any right with respect to the application. It is not uncommon however, for the purchaser to bargain to obtain rights with respect to the development application, including intellectual property rights and a right to give instructions as to the exercise of the applicant’s rights in the application.
[8]Leaving to one side, for the moment, the effect of the extended definition.
This, at times, also arises in the context of other dealings including those between an applicant and a financier. In Ogle v Pine Rivers Shire Council (supra) for example, the mortgage document included a clause which, relevantly, provided that[9]:
[9]See par 19.
“38. Charge and assignment
The mortgagor expressly hereby charges and assigns to the mortgagee and acknowledges and confirms that this mortgage extends to all … development applications … including all intellectual property rights.”
There was no power, in the context of the now superseded legislation, to substitute another for the applicant at the appeal stage[10]. It was the original applicant who, under such arrangements, would continue to prosecute the appeal for the benefit of another[11]. Under the extended definition, those persons who otherwise stand possessed of the benefit of the application are now applicants in their own right and co-respondents to any submitter appeal and are entitled to be heard as parties.
[10]See Condo Fisheries Pty Ltd v Gold Coast City Council [2000] QPELR 5.
[11]See e.g. Frenbrow Pty Ltd v Brisbane City Council (1970) 20 LGRA 214.
Cennzeal is in a different position. 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. Absent the extended definition, there would be no arguable basis for it to claim any right in respect of the conduct of the application, far less be made a party to an appeal.
In Architects Dewar and Associates Pty Ltd v Redlands Shire Council [1997] QPELR 144, the registered proprietor consented to an application being made by a person who was then a purchaser under a contract of sale. The contract was subsequently terminated and the owner sought, pursuant to O 3 r 11 of the Supreme Court rules and r 39 of the Local Government Court rules, to be made a party to appeals relating to the approval. In dismissing the application the court said at 145:
“It could not be said that in either of these appeals the registered proprietor is a person against whom any form of relief is claimed. It may be that he has an interest in the outcome in that it may affect land use rights in respect to his property, but that in itself would not, on the abovementioned interpretation of the rule, appear to be a significant reason for his joinder pursuant to it.
…
…Appeals such as this are not really an action of that kind but involve a review of the consideration by a planning authority of a town planning application which may, or may not, lead to the setting aside of the decision made by the planning authority. Although it has to be said that the interests of various parties (including the registered proprietor of the land) are affected by the result, no particular liability on any persons’ part is established by the proceedings.
As already pointed out, such appeals (and those who are necessary or competent parties to them) are provided for by the Act. The owner of land as such (as distinct from an applicant who also happens to be an owner) is not identified by the Act as being either a necessary or competent party to an appeal…”
In Condo Fisheries Pty Ltd v Gold Coast City Council [2000] QPELR 5, the owners of land who had given their written consent to a development application being made by a purchaser under a conditional contract, failed in its application to the court to have the development application amended to substitute its name as applicants.
The issue is whether the position is now different by reason of the extended definition in the IPA. Counsel for Cennzeal relies upon this court’s decision in Ogle v Pine Rivers Shire Council (supra) in which the purchaser from a mortgagee exercising power of sale was held to be an applicant for the purposes of instituting an appeal. The facts of that case are quite different, but the submissions on behalf of Cennzeal are consistent with the reasoning. At para 20 Robin QC DCJ said:
“Intended or not, the effect of the definition of a chapter 4 applicant is to avoid the outcome in Architect’s Dewar and Condo Fisheries, and to take things further, by recognising as an applicant for appeal purposes a person assuming ownership of the relevant land only after the making of the development application …”
In coming to that conclusion, his Honour considered that, since a development approval attaches to the land and binds the owner, successors in title and occupants, the owner has an “inchoate, future or contingent” benefit, constituted by the chance of the application leading to an approval, which makes the owner a person with a “real interest” in the outcome of the application. While stating that the extended definition “probably connotes a direct benefit” he observed that the word “benefit”, in other parts of the Act, was used in the sense of “any advantage, actual or potential” and concluded that the expression should not be construed in a technical or restricted way. He said that the position comes close to an application running with the land for chapter 4 purposes (although he said that he did not have to decide that question). That would be a significant change to the previous position.
The interest of the owner in the outcome of a development application is not productive of any right prior to the council’s decision on an application, other than the right to grant or withhold consent to the making of the application. The extended definition does not apply to chapter 3. Prior to council’s decision, Cennzeal would have had no right to assume the role of applicant or to prevent Soncom from withdrawing the application, even if contractual relations had already ceased.
The explanatory note suggests that the extended definition was inserted, for the appeal stage, to accommodate a situation where the original applicant “passes on” the benefit of the application. It is not immediately obvious why the legislature would bestow the status of applicant on an owner (to which nothing had been passed in relation to the application) for the purposes of an appeal but not for the application stage.
It was pointed out that, upon the cessation of the contractual relationship, Soncom lost its beneficial interest the land, but I do not consider that the benefit of the application was, without more, thereby passed to Cennzeal. It is an entity which stands possessed of an interest in the land. If an approval were to come into effect, that approval would attach to its land and be binding on it. In that sense, it might accrue a benefit contingent on an approval coming into effect, but that, in my view, falls short of making it “the person in whom the benefit of the application vests”. I do not consider that the extended definition has the effect that a development application runs with the land or the effect of conferring the status of ‘applicant’ on an owner upon the failure of a conditional contract of sale.
The matter is not free of difficulty or argument. Legislative clarification would be beneficial, but it seems to me that the extended definition requires an identification of the person who stands possessed of the benefit of the application. I am unpersuaded that is done by reference to those or who might derive benefit, in the sense of any actual or potential advantage, from a subsequent approval.
There is some attraction to the extension of participation rights to those who have a “real interest” in the outcome of the development application, by reason of a prospective benefit in the event of an approval. The adoption of an overly generous interpretation may however, be productive of difficulty.
There is a need for certainty in the identification of the applicant for the purposes of part 4. The observation, in Ogle’s case, that it will be up to a new potential protagonist, in the context of an applicant appeal, to assert its claims to be treated as an applicant, must be tempered in the context of submitter appeals. Each applicant is, by virtue of s 4.1.43(3), a party to a submitter appeal. Within 10 business days after a submitter appeal is started, the submitter appellant must give written notice of the appeal to the applicant (s 4.1.41). In the appeal it is the applicant which bears the onus of establishing that the submitter appeal should be dismissed (s 4.1.50). An overly generous approach to the extended definition has the potential to create a multiplicity of potential ‘applicants’ and a degree of confusion in their identification.
It is often the case that many persons would be advantaged by an approval of an application and, in that sense, have an interest in the outcome of an appeal. Take, for example, an application for a development permit for a material change of use and a preliminary approval for building work for a proposed shopping centre. The application is made in the name of a consultant town planner on the instructions of a developer. That developer has conditional agreements with the following:
(i) The current owner of the land, from whom the site will be purchased in the event of an approval;
(ii) The builder who will carry out the building work in the event of an approval;
(iii) The entity which will become the anchor tenant together with a multiplicity of other persons who have agreed to tenant the 50 specialty shops in the shopping centre to be operated under the approval for material change of use
(iv) The person who will manage the centre;
(v) The trustee of a unit trust, which will purchase the shopping centre from the developer once it is operational.
Each of those persons stand to benefit from an approval and have an interest, in the broad sense, in the outcome of the appeal. There may, of course, be others with a less direct interest, such as owners of neighbouring properties (the amenity or value of which might be increased by the development the subject of any approval).
It seems to me that the better approach is to regard the extended definition as conferring upon a 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 potential benefit, in the broad sense, which might flow contingent upon an approval coming into effect.
In my view, Cennzeal is not a person in whom the benefit of the application vests and is not an applicant. It is not a party by force of statute and is not entitled to be heard in the appeal. The application to be joined, on discretionary grounds, was based on the proposition that Cennzeal is an applicant. Cennzeal is not a person whose presence before the Court is necessary or desirable, just and convenient for the purposes set out in r69 UCPR. I am not prepared to a exercise discretion to permit Cennzeal to be joined. The appeal will inevitably be allowed, in view of the applicant’s (Soncom) decision not to discharge the onus which, by reason of s4.1.50, rests upon it. If Cennzeal wishes to obtain a development approval, it will need to make its own application.
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