Wakely v Summit View Meritor Pty Ltd

[2013] QPEC 36

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Wakely & Ors v Summit View Meritor Pty Ltd & Ors [2013] QPEC 36

PARTIES:

MICHAEL WAKELY & SANDRA BLACKWELL 
(First Applicants)

and

ANDRE LOPES & MAIRA LOPES 
(Second Applicants)

and

PETER DENNELLY & JUDITH-ANN DENNELLY
(Third Applicants)

and

JENNIFER MILLER
(Fourth Applicant)

and

ROY THOMPSON & SUSAN THOMPSON
(Fifth Applicants)

and

JOHN FILIPIAK & MARYANNE FILIPIAK
(Sixth Applicants)

and

PETER JENSEN
(Seventh Applicant)

and

ANTHONY FORD & TERESA FORD
(Eighth Applicants)

and

ERWIN SOONTIENS & ANNALISE SOONTIENS
(Ninth Applicants)

and

BERNARD WUNSCH & SANDRA CORDIN
(Tenth Applicants)

and

SIMON GROGAN
(Eleventh Applicant)

and

TERENCE MCGEOGH & HARRIET MCGEOGH
(Twelfth Applicants)

and

ELANKAYER SITHIRASENAN & VASUGI SITHIRASENAN
(Thirteenth Applicants)

and

MELISSA MACOBOY
(Fourteenth Applicant)

and

RONALD REEVE
(Fifteenth Applicant)

and

PHILLIP RHODES & SANDRINE RHODES
(Sixteenth Applicant)

and

STEVEN ESSEX & JENNIFER DAVIES
(Seventeenth Applicants)

and

LEE MACHIN
(Eighteenth Applicant)

and

ROBIN BURKE & HEATHER JANE BROOKE
(Nineteenth Applicants)

v

SUBMIT VIEW MERITOR PTY LTD   
(First Respondent)

and

STEPHEN GRANT TURNER 
(Second Respondent)

and

SOUTH BURNETT REGIONAL COUNCIL    
(Third Respondent)

FILE NO/S:

 1753 of 2013

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

26 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

26 June 2013

JUDGE:

Everson DCJ

ORDER:

Application granted

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPLICATION – application for summary judgment by third respondent – ambit of power to make declarations – ambit of power to make enforcement order – discretionary considerations

Sustainable Planning Act 2009 (Qld), ss 456, 457, 601 and 604
Uniform Civil Procedure Rules 1999 (Qld), r 293
Planning & Environment Court Rules 2010 (Qld), s 3

COUNSEL:

A. Skoien for the Applicants
S. Fynes-Clinton for the Third Respondent

SOLICITORS:

Michael Sing Lawyers Pty Ltd for the Applicants
King & Company Solicitors for the Third Respondent

HIS HONOUR:   This is an application for summary judgment brought by the third respondent local government to the originating application.  The only relief sought against the third respondent is set out in paragraphs 9 and 10 thereof in the following terms:

“9.  An order that the Third Respondent shall diligently progress, assess, and determine any application or request lodged for approval, authorisation, or permission in respect of the Required Works.”

“10.  An order that:

(a) in the event of any non-compliance by the First Respondent or the Second Respondent with orders of the Court made in these proceedings in respect of the Required Works;

(b) in the event of non-compliance by the First Respondent with any approval, authorisation, arrangement, or permission issued in respect of the Required Works;

(c) in the event of a winding up order, deed of administration, or appointment of receivers in respect of the First Respondent;

the Third Respondent shall, at no cost to the Applicants, and without removing any responsibility on the part of the First Respondent and the Second Respondent, share all responsibilities of the First Respondent and the Second Respondent in respect of the commencement and completion of the Required Works.”

The application for summary judgment is made pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (“UCPR”), in circumstances where they apply to proceedings in this court by virtue of section 3 of the Planning and Environment Court Rules 2010. Rule 293 is in the following terms:

“(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.

(2) If the court is satisfied –

(a) the plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim;  and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the defendant for all or part of the plaintiff’s claim, and may make any other order as the court considers appropriate.”

In its application, the third respondent submits that paragraph 9 of the originating application is no more than a prayer reflecting the third respondent’s duty under the Sustainable Planning Act 2009 (“SPA”) and otherwise at law and is therefore superfluous and of no utility. In respect of paragraph 10, it is submitted that the court possesses no jurisdiction to grant the remedies sought in paragraph 10. The originating application concerns circumstances where the first respondent developer breached development approvals issued to it by the third respondent for the purpose of developing a residential housing estate. The third respondent, by virtue of a negotiated decision notice, permitted the first respondent to commence building works on certain residential lots before the completion of various operational works, including earthworks, road works, and the provision of services such as electricity, water, telephone, and effluent disposal.

It is submitted by Mr Skoien, who appears on behalf of the applicants, that the third respondent facilitated the commission of the development offence by enabling building work to occur in circumstances where the operational works did not need to be completed beforehand by the first respondent.  It is further alleged that the third respondent failed to properly police the development approvals it issued, with the result that the applicants purchased housing lots and took steps to develop them, in circumstances where the necessary services were not provided to each of the lots by the first respondent.  Although these allegations clearly call into question the conduct of the third respondent and give rise to potential claims for negligence, the issue before me is whether the conduct of the third respondent falls within the jurisdiction of this court in such a way as to make the relief sought in paragraphs 9 and 10 of the originating application properly justiciable by this court.

The first power which it is submitted by Mr Skoien is enlivened in these circumstances is pursuant to section 456 of SPA, which relevantly states:

“(1) Any person may bring a proceeding in the court for a declaration about any of the following –

(a) a matter done, to be done, or that should have been done for this Act other than a matter for chapter 6, part 11;

...

(e) the lawfulness of land use or development.”

It is submitted by Mr Skoien that the conduct of the third respondent is justiciable by this court pursuant to both subparagraph (a) and subparagraph (e). Although there is some superficial appeal in reading the above sources of jurisdiction broadly, it is necessary to have regard to the fact that this court is concerned with such matters as those specified above in a real rather than an abstract context. I agree with the submission of Mr Fynes-Clinton that section 456(1)(a) contemplates a right or obligation on the part of a particular party, pursuant to SPA and on the facts before me, although the third respondent may well have been negligent it is not the case that

it has acted unlawfully in issuing the development approvals relevant to this proceeding. The same considerations apply in respect of section 456(1)(e). It is not alleged that the third respondent itself used land or developed land in an unlawful manner.

Paragraph 9 does no more than state the legal obligations of the third respondent and is insufficient to justify making the third respondent a party to this proceeding. Paragraph 10 is equally unjustified in circumstances where the third respondent has not failed to comply with an obligation pursuant to the SPA, and has not itself acted unlawfully. I am, therefore, of the view that there is no power pursuant to section 456 which justifies the relief sought in paragraph 10 of the originating application.

The other sources of power which allegedly justify the relief sought against the third respondent are said to arise pursuant to section 601 and 604 of SPA, which provide for the making of enforcement orders. Relevantly, section 601 states:

“(1)A, a person may bring a proceeding in the court –

(a)  for an order to remedy or restrain the commission of a development offence.  (an enforcement order):”

Section 604 of SPA is in the following terms:

“(1)The court may make an enforcement order if the court is satisfied the offence –

(a) has been committed; or

(b) will be committed unless restrained;

(2) If the court is satisfied that the offence has been committed, the court may make an enforcement order whether or not there has been a prosecution for the offence under division 4.”

Again, Mr Skoien submits that these powers should be construed broadly, pointing out that there is nothing in the language of section 601 or section 604 which restricts their application in any particular way. While it is conceivable that circumstances may arise where the interests of justice may require a less than narrow approach to the making of an enforcement order, I am not persuaded that those circumstances exist on the facts before me.

On the facts before me, which are as pleaded in the originating application, there is no allegation that the third respondent itself has committed or been actively or knowingly involved in the commission of a development offence having regard to the allegations made against it. Rather, what is sought in paragraph 10 are contingent orders allowing for circumstances where orders which may be made by this court may either not be complied with or prove of no utility in the event of various prospective events. In my view the jurisdiction contemplated in section 601

and the powers provided for in section 604 do not conceive of such a contingent scenario where the third respondent itself has neither committed nor been knowingly
involved in the commission of a development offence.  Relief sought in paragraph 10 also contemplates a contempt of court on the part of the other respondents which I find unappealing as a vehicle for relief in any event.

In the circumstances I am satisfied that the applicants have no real prospect of succeeding in prosecuting their allegations against the third respondent in this proceeding which are as set out in paragraphs 9 and 10 above. 

I, therefore, grant the application and enter summary judgment for the third respondent in respect of the relief sought against it. 

I now come to the question of costs. The third respondent submits that in instituting the proceeding against it, as pleaded in paragraphs 9 and 10 of the originating application, the applicants proceeded in a vexatious manner enlivening the costs jurisdiction pursuant to section 457 of SPA and further that the way the proceeding was instituted and prosecuted it justifies an award of indemnity costs.

Pursuant to section 457 costs are in the discretion of the court. I am of the view that the broad approach to the construing of section 456, section 601 and 604 of SPA was, at least, notionally arguable by the applicants in circumstances where I am satisfied that the negotiated decision notice of the respondent which enabled building works to commence before operational works had been completed has been a major contributor to the dispute before the court. In these circumstances I decline to make an order as to costs.

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