Robertson DCJ
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 scheme.
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 request.
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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