Australia: Court refused an application to join a permissible change proceeding, as all the relevant issues had been placed before the court, so inclusion would result in additional costs

IN BRIEF

The case of Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53 concerned an application under rule 69(1)(b)(ii) of the Uniform Civil Procedure Rules 1999 by Beriley Pty Ltd, an adjoining landowner, seeking to be included in a proceeding in which Novadeck Pty Ltd requested a further permissible change to a development approval for land located at 28 Benhiam Street, Calamvale.

Beriley raised concerns relating to increases in the pad levels for townhouse dwellings located close to the common boundary and changes to the proposed acoustic barriers located on the same boundary. Relevantly, the Brisbane City Council had issued a notice to Novadeck under section 373(1) of the Sustainable Planning Act 2009 objecting to these further changes.

Claiming that it was necessary to not only consider the changes to the development approval before the Planning and Environment Court but also the "real extent of the change" from the original approval, Beriley asserted that it could not rely upon the Council to ensure that its concerns were properly agitated. However, in dismissing the application, the Court stated that the further changes were to be assessed solely by comparing them to the most recent approval and that the concerns of Beriley were nonetheless being brought to the attention of the Court by the Council.

Ultimately, the Court was of the view that it was not desirable, just and convenient to include Beriley as a party to the permissible change application in circumstances where all of the relevant issues were placed before the Court with Beriley's inclusion only potentially adding to the costs of the parties.

WHILE BERILEY HAD NO RIGHT TO BE HEARD, THE COUNCIL HAD ALREADY TAKEN THEIR CONCERNS INTO ACCOUNT IN ASSESSING THE PERMISSIBLE CHANGE APPLICATION

On 8 October 2008, the Planning and Environment Court granted a development permit for a material change of use (multi-unit dwelling) and a preliminary approval for building work (multi-unit dwelling) to Novadeck, which was later changed by a judgment of the Court on 7 December 2015.

At the time of the proceeding, Novadeck had constructed 49 two-storey townhouse dwellings on the land whilst Beriley was in the process of constructing 51 residential units on the land located to the south of the subject land.

In its application, Beriley claimed that its presence before the Court would be desirable, just and convenient to enable the Court to adjudicate effectually and completely on all matters in dispute concerning Novadeck's application. Beriley sought to agitate concerns relating to increases in the pad levels for townhouse dwellings located close to the common boundary and changes to the proposed acoustic barriers located on the same boundary.

Under section 373(1) of the Sustainable Planning Act 2009, the Council issued a notice to Novadeck objecting to the changes and the Court stated that while Beriley had no right to be heard, the Council had nonetheless taken its concerns into account in assessing Novadeck's permissible change application.

COURT HELD THAT THE DEVELOPMENT APPROVAL AGAINST WHICH A CHANGE WAS MEASURED WAS THE DEVELOPMENT APPROVAL IN PLACE AT THE TIME THE PERMISSIBLE CHANGE APPLICATION WAS MADE AND NOT THE ORIGINAL APPROVAL

The Court considered the interrelationship between the prescriptive planning regime in Queensland and rule 69 of the Uniform Civil Procedure Rules 1999. In doing so, the Court considered Leda Holdings Pty Ltd v Caboolture Shire Council [2007] 1 Qd R 467 and Coolum Properties Pty Ltd & Bunnings Group Ltd v Maroochy Shire Council & Ors [2007] QCA 299 in which the Court of Appeal discussed the discretion conferred by rule 69 as intending to "facilitate the determination of proceedings in accordance with the rules of natural justice" and should not be approached as if it were intended to "restrict the availability of the common law right of a person likely to be affected by a decision to be heard in relation to that decision."

Beriley asserted that it could not rely upon the Council to ensure that its concerns were properly agitated in the application, submitting that the magnitude of the changes in the permissible change application being great, contrary to that submitted by Novadeck.

Relying upon the reasoning in Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council (2015) QPELR 462, Beriley submitted that in determining whether the further changes were permissible, it was necessary to not only consider the changes the subject of the application but also the changes from the original approval.

However, the Court disagreed and observed that the development approval against which a change was measured in all cases was the development approval in place at the time the permissible change application was made. The original approval was therefore not relevant.

IT WAS UNCONTENTIOUS THAT BERILEY DID NOT HAVE A RIGHT TO BE HEARD IN THE DETERMINATION OF NOVADECK'S PERMISSIBLE CHANGE APPLICATION AS ITS INCLUSION WAS NOT DESIRABLE, JUST AND CONVENIENT

In concluding that the applicability of the rules of natural justice was subject to the relevant statutory law that applied, the Court found it was uncontentious that Beriley did not have a right to be heard in the determination of Novadeck's permissible change application. Further, on the facts, it was held that the concerns of Beriley were nonetheless being brought to the attention of the Court by the Council.

There was nothing before the Court that suggested the Court would not be able to undertake the task mandated by the legislative framework in assessing the permissible change application without including Beriley as a party to the proceeding under rule 69 of the Uniform Civil Procedure Rules 1999.

Accordingly, the Court held that is was not desirable, just and convenient to include Beriley as a party to the proceeding where all the relevant issues were placed before the Court and its inclusion would only potentially add to the costs of the parties.

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