Practice and procedure – where developer seeks to
change condition of preliminary development approval by this Court
– where original unsuccessful submitter appellant seeks to be
joined as a party – where developer opposes leave –
where Council and DERM support leave being given – whether
the presence of the submitter would be desirable and just to enable
the court to effectively adjudicate
Facts: This was an application in pending
proceeding brought by Mackay Conservation Group Inc
(MCG) for an order pursuant to r. 69(1)(b) of the
Uniform Civil Procedure Rules 1999 that it be included as a party
to an application by Eastpoint Mackay Pty Ltd
(Eastpoint) to amend a condition of a preliminary
development approval, which condition was imposed as part of a
suite of conditions imposed by the Court after a lengthy
unsuccessful appeal by MCG as an adverse submitter against
Council's decision to approve the development.
The condition which Eastpoint wished to change was condition 2
of the preliminary approval which limited the period in which it
had to construct the hotel part of the development to five years
from the commencement of the currency period and after the
development of not more than 154 residential detached housing lots
in stages 1 and 2 of the development. No housing lots had been
established. The period for constructing the hotel had in fact
elapsed, but by order of the Court had been extended to the
determination of Eastpoint's application by the Court.
Eastpoint wished to extend the period by three years.
The construction of the hotel was a critical factor in the Court
originally determining that the proposal, which included a
significant residential component, came within the various relevant
descriptions in the planning scheme, thus leading to the
Court's opinion that there was no conflict with the planning
The originating application sought to change condition 2 of the
development approval on the basis that it was a permissible change
for the purposes of s. 367 of the Sustainable Planning Act
2009 (SPA). The originating application was
opposed by both Council and the DERM.
Eastpoint had also made a request to Council pursuant to s.
383(1) of the SPA to extend the period in condition 2, and the
appeal was against Council's deemed refusal of that
All parties agreed that if MCG's application was successful
it should be joined as a party to the appeal, which by consent
would be consolidated with the originating application.
Decision: The Court held that:
Despite the confined nature of the issues to be determined on
the application, it was difficult to conceive how the actual
submitter appellant MCG, undoubtedly a highly credentialed and
responsible entity with a public interest agenda in the Mackay
region, which conducted the lengthy and expensive appeal which
resulted in a raft of conditions including condition 2, should now
be shut out of the proceedings.
It was difficult to see how MCG would satisfy the first limb of
r 69(1)(b) but the wider ambit of the second limb led comfortably
to the conclusion that MCG was an entity whose presence before the
Court would be desirable, just and convenient to enable the Court
to determine effectively and completely the issue raised on
Eastpoint's application and appeal.
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