Australia: Even if an entity is an entity directly affected by a permissible change request, there is no standing before the Planning and Environment Court

In brief

The Planning and Environment Court decision of Aveo Clayfield Pty Ltd v Brisbane City Council [2017] QPEC 60 involved an application in a pending proceeding by a third-party who wished to be joined as a co-respondent by election.

The proceeding involved an application under section 369(1)(d) of the Sustainable Planning Act 2009 (SPA) by the Applicant seeking orders to change various aspects of a development approval for a retirement village on land situated at 469 Sandgate Road, Albion. The development approval was issued by the Court on 12 February 2016.

The SPA continued to apply to the proceeding despite the Planning Act 2016 (Planning Act) coming into effect on 3 July 2017 as the application was filed on 21 June 2017.

The scope of the permissible change application

The Applicant contested that the changes it sought to make to the development approval were "permissible changes" within the ambit of section 367 of the SPA.

The procedure for changing a development approval under the SPA required that a copy of the request be given to various entities which afforded them the opportunity to object to the request. Submitters or other third-parties, however, were required to be served and given the same opportunity.

The third-party and its contentions

The development approval was issued by the Court and therefore the process for changing the development approval was to file an originating application in accordance with rule 8 of the Planning and Environment Court Rules 2010 (PECR), which relevantly states as follows:

"8 Originating process respondent

(1) An originating application must name as a respondent the entity directly affected by the relief sought."

The third-party, being the entity that owns land adjoining the land the subject of the development approval, asserted that it was an "entity directly affected" by the changes to the development approval and should be a co-respondent to the proceeding because it "[would] suffer a direct impact if the proposed changes are approved, including privacy, amenity, traffic and potential acoustic impacts".

Was the third-party directly affected by the changes to the development approval?

To determine whether the third-party was an entity directly affect by the changes to the development approval, the Court referred to its decision in Dillon v Douglas Shire Council [2004] QPEC 50 where it relevantly held as follows:

"The word 'directly' is a common word in the English language and, to my mind, it is well understood. Relevantly, it means 'immediately' or 'straight away'. If an originating application seeks an order that a person do something or refrain from doing something, that person is directly affected. Here, the council is directly affected because immediately the court declares the meaning of the provisions, the council will be bound to administer them in a way consistent with the interpretation and declarations. However, the declarations which the court may make, if it makes any, will not require [the applicant] immediately to do or not to do anything."

The Court contrasted this position with its more recent determination in Donovan v Brisbane City Council [2016] QPEC 041 where it relevantly held as follows:

"... the test laid down in Dillon is peculiar to the relief therein sought, namely declaratory relief. The test is not of universal application whatever the relief sought. That is not the only manner in which a person may be directly affected by relief sought. In Dillon, the relief sought was a declaration relating to certain provisions of the relevant legislation. In determining whether the appellant was directly affected for the purposes of rule 8 of the [PECR], the Court first considered the nature of the relief sought and concluded that the applicant, was not directly affected because it was not required to do anything or refrain from doing anything.

Here, the relief sought is quite different. If granted, it will entitle the Applicant to proceed with the proposed construction. One should proceed on the basis that any approval granted will be pursued and exploited to the intent that construction will take place. The mere fact that the Applicants for Joinder will not be immediately required to partake or forgo some course of action, as the test in Dillon suggests, does not mean they are not directly affected by the relief sought by the Originating Application.

The Applicants for Joinder have submitted that the proposed changes, as a result of the permissible change to the development approval in the Originating Application will directly affect their use and enjoyment of their property ..."

In attempting to reconcile these two approaches, the Court considered the following principles of statutory interpretation stated by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147, which had regard to the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28:

"... the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning..."

In applying these principles of statutory construction, the Court made the following observations:

  • It is not the legislative intent that the PECR, which is subordinate to the substantive legislative provisions in the SPA, expand the rights of parties who otherwise do not have a right to be heard in respect of a request to change a development approval.
  • That the assessment of a permissible change application is a confined enquiry which is informed by the relevant provisions of the SPA. The fact that the responsible entity in this case was the Court did not warrant an alternative interpretation of rule 8 of the PECR such that a third-party, who did not otherwise have a right to be heard would be given an opportunity to be heard simply because the procedure for making the request to change the development approval necessitates the filing of an originating application.

Conclusion

The Court held that rule 8 of the PECR did not confer rights upon a third-party that otherwise did not exist under the SPA and that any literal interpretation of rule 8 of the PECR which suggested otherwise should be avoided.

The Court therefore dismissed the application for joinder.

Relevance to the Planning Act

The procedure for requesting a change to a development under section 369 of the SPA is now provided for under section 78 of the Planning Act. The procedure has remained largely unchanged and this decision in respect of the SPA is relevant albeit not binding in respect of the Planning Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Ian Wright
 
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