Wyandra St Developments Pty Ltd v Brisbane City Council - [2024] QPEC 28

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Wyandra St Developments Pty Ltd v Brisbane City Council [2024] QPEC 28

PARTIES:

WYANDRA ST DEVELOPMENTS PTY LTD (ACN 668 629 909)

(Applicant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

SALLY YOUNG AND ANDRE GIGUERE

(Applicants for joinder)

FILE NO:

567/24

DIVISION:

Planning and Environment

PROCEEDING:

Application in Pending Proceeding

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

4 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2024 and further submissions received on 20 and 23 May 2024

JUDGE:

Kefford DCJ

ORDER:

I ORDER:

(A)     BY 4 PM ON 12 JUNE 2024, WYANDRA ST DEVELOPMENTS PTY LTD IS TO FILE AN AMENDED ORIGINATING APPLICATION IN WHICH IT NAMES PAUL JAMES MCCARTHY, EUGENE SIMKOVIC, AND SALLY YOUNG AND ANDRE GIGUERE AS RESPONDENTS TO THIS PROCEEDING;

(B)     BY 4 PM ON 26 JUNE 2024, WYANDRA ST DEVELOPMENTS PTY LTD IS TO SERVE THE AMENDED ORIGINATING APPLICATION ON EACH OF THE NAMED RESPONDENTS; AND

(C)     THE MATTER BE LISTED FOR REVIEW ON 10 JULY 2024.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION FOR A MINOR CHANGE TO A DEVELOPMENT APPROVAL – where the applicant sought to change a current development approval – where the current development approval had been granted by the Court – where the applicant did not name as respondents the individuals that were a party to the decision of the court that granted the current development approval –– whether the parties to the development approval granted by the Court were directly affected and required to be named as respondents under r 8 of the Planning and Environment Court Rules 2018

LEGISLATION:

Planning Act 2016 (Qld) ss 78, 79, 80, 81, 81A, 229, sch 1

Planning and Environment Court Rules 2018 (Qld) rr 6, 8

Uniform Civil Procedure Rules 1999 (Qld) r 69

CASES:

Aveo Clayfield Pty Ltd v Brisbane City Council [2017] QPEC 60; [2018] QPELR 139, distinguished

Collard v Brisbane City Council [2009] QPEC 62; [2010] QPELR 6, cited

Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, applied

Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 41; [2007] 1 Qd R 467, approved

Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53; [2016] QPELR 951, distinguished

COUNSEL:

J Lyons for the Respondent
E Morzone KC and G Kiss for the Applicants for joinder

SOLICITORS:

Connor O’Meara Solicitors for the Applicant
Brisbane City Legal for the Respondent
Stokes Lawyers for the Applicants for Joinder

Wyandra St Developments Pty Ltd has a development permit that authorises the making of a material change of use for multiple dwellings and food and drink outlet (“the current development approval”). The development approval attaches to land at 37 Wyandra Street, Teneriffe (“the subject land”).
The current development approval was given by judgment of this Court on 25 November 2022 in Appeal No. 1913 of 2021. That was an appeal against the Council’s deemed refusal of an application made to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QPEC 28
Decision Date: 4 June 2024

CaseChat Overview and Summary

Wyandra St Developments Pty Ltd applied for a minor change to a development approval that had previously been granted by the Court. The Brisbane City Council opposed the application, arguing that Wyandra St Developments Pty Ltd had failed to name certain individuals as respondents in the proceedings. These individuals were party to the original court decision that had granted the development approval. The Brisbane City Council contended that the individuals should be named as respondents under rule 8 of the Planning and Environment Court Rules 2018. The court was required to determine whether the individuals who were party to the original court decision that granted the development approval were directly affected by the application and needed to be named as respondents under rule 8.

The court examined the nature of the application and the relevant rule. It determined that the individuals who were party to the original court decision were directly affected by the application for a minor change to the development approval. The court held that these individuals needed to be named as respondents under rule 8 to ensure that they had the opportunity to be heard and to protect their interests. The court found that Wyandra St Developments Pty Ltd's failure to name these individuals as respondents was a procedural error that needed to be rectified.

In light of the above, the court ordered that Wyandra St Developments Pty Ltd file an amended originating application naming the individuals as respondents by a specified date. The court also ordered that the amended application be served on the individuals by a later date. The matter was to be reviewed to ensure that the procedural error was rectified and that the interests of all parties were protected. The court emphasised the importance of following the rules and procedures to ensure that all parties have the opportunity to be heard and that their interests are protected.

Orders

Orders of the court

I ORDER:

(A) BY 4 PM ON 12 JUNE 2024, WYANDRA ST DEVELOPMENTS PTY LTD IS TO FILE AN AMENDED ORIGINATING APPLICATION IN WHICH IT NAMES PAUL JAMES MCCARTHY, EUGENE SIMKOVIC, AND SALLY YOUNG AND ANDRE GIGUERE AS RESPONDENTS TO THIS PROCEEDING;

(B) BY 4 PM ON 26 JUNE 2024, WYANDRA ST DEVELOPMENTS PTY LTD IS TO SERVE THE AMENDED ORIGINATING APPLICATION ON EACH OF THE NAMED RESPONDENTS; AND

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wyandra St Developments Pty Ltd v Brisbane City Council [2024] QPEC 28
PARTIES:	WYANDRA ST DEVELOPMENTS PTY LTD (ACN 668 629 909) (Applicant) v BRISBANE CITY COUNCIL (Respondent) and SALLY YOUNG AND ANDRE GIGUERE (Applicants for joinder)
FILE NO:	567/24
DIVISION:	Planning and Environment
PROCEEDING:	Application in Pending Proceeding
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	4 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	9 May 2024 and further submissions received on 20 and 23 May 2024
JUDGE:	Kefford DCJ
ORDER:	I ORDER: (A) BY 4 PM ON 12 JUNE 2024, WYANDRA ST DEVELOPMENTS PTY LTD IS TO FILE AN AMENDED ORIGINATING APPLICATION IN WHICH IT NAMES PAUL JAMES MCCARTHY, EUGENE SIMKOVIC, AND SALLY YOUNG AND ANDRE GIGUERE AS RESPONDENTS TO THIS PROCEEDING; (B) BY 4 PM ON 26 JUNE 2024, WYANDRA ST DEVELOPMENTS PTY LTD IS TO SERVE THE AMENDED ORIGINATING APPLICATION ON EACH OF THE NAMED RESPONDENTS; AND (C) THE MATTER BE LISTED FOR REVIEW ON 10 JULY 2024.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPLICATION FOR A MINOR CHANGE TO A DEVELOPMENT APPROVAL – where the applicant sought to change a current development approval – where the current development approval had been granted by the Court – where the applicant did not name as respondents the individuals that were a party to the decision of the court that granted the current development approval –– whether the parties to the development approval granted by the Court were directly affected and required to be named as respondents under r 8 of the Planning and Environment Court Rules 2018
LEGISLATION:	Planning Act 2016 (Qld) ss 78, 79, 80, 81, 81A, 229, sch 1 Planning and Environment Court Rules 2018 (Qld) rr 6, 8 Uniform Civil Procedure Rules 1999 (Qld) r 69
CASES:	Aveo Clayfield Pty Ltd v Brisbane City Council [2017] QPEC 60; [2018] QPELR 139, distinguished Collard v Brisbane City Council [2009] QPEC 62; [2010] QPELR 6, cited Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, applied Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 41; [2007] 1 Qd R 467, approved Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53; [2016] QPELR 951, distinguished
COUNSEL:	J Lyons for the Respondent E Morzone KC and G Kiss for the Applicants for joinder
SOLICITORS:	Connor O’Meara Solicitors for the Applicant Brisbane City Legal for the Respondent Stokes Lawyers for the Applicants for Joinder