Aveo Group Limited v Brisbane City Council [2024] QPEC 40

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Aveo Group Limited v Brisbane City Council [2024] QPEC 40 PARTIES: AVEO GROUP LIMITED ACN 010 729 950 (Applicant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: 1753/24 DIVISION: Planning and Environment PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 4 September 2024, ex tempore DELIVERED AT: Brisbane HEARING DATE: 4 September 2024 JUDGE: Everson DCJ ORDER: Application dismissed 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 submitters who were parties 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 and in the exercise of the Court’s discretion CASES: Walters & Ors v Brisbane City Council & Anor [2019] QPEC 3 Wyandra St Developments Pty Ltd v Brisbane City Council [2024] QPEC 28 LEGISLATION: Planning Act 2016 (Qld) -- 1 of 5 -- 2 Planning and Environment Court Act 2016 (Qld) Planning and Environment Court Rules 2018 (Qld) COUNSEL: K Buckley for the Applicant SOLICITORS: Cooper Grace Ward for the Applicant Brisbane City Legal for the Respondent [1] This is an originating application seeking changes to a development approval given by a judgment of this Court on 28 March 2019. It is submitted that they are minor changes and should be approved by the Court, undertaking an assessment pursuant to section 81 of the Planning Act 2016 (Qld) (“PA”). Orders are also sought either removing the prescribed completion period for the proposed development or extending it. [2] The development approval is for a Retirement Facility in seven stages and a Preliminary Approval for carrying out building work at 24 Free Street, Newmarket. The development application attracted 451 properly made submissions, with all but six objecting to it. After the respondent approved the proposed development on 18 December 2017, 58 of the submitters appealed the decision to this Court. In Walters & Ors v Brisbane City Council & Anor,1 the Court delivered its reasons approving the proposed development on 18 February 2019. The reasons extended to 67 pages and 359 paragraphs. Allegations of non-compliance with numerous assessment benchmarks were canvassed. The design of the proposed development and amenity concerns were argued and the subject of expert evidence at the hearing of the appeal. [3] In its originating application, the applicant proposes to make numerous changes to the development approval. These include changes to the staging, the number and size of the individual units within the development and to the location of community facilities. Changes are also proposed to the design of the buildings, including to facades and footprints. There will be a slight increase in the number of car parks provided in the context of a complete re-design of the basement carpark. It is proposed that there will be changes to the provision of open space and landscaping, including a reduction in deep planting. 1 [2019] QPEC 3. -- 2 of 5 -- 3 [4] Unfortunately, none of the submitter appellants in the appeal which resulted in the development approval, are named as respondents to the originating application. They have not even been served. As far as I can discern, no attempt has been made to make them aware of the changes to the development approval sought by the applicant in this proceeding. [5] The Court is the responsible entity for the application to change the development approval, pursuant to section 78(2) of the PA. That is why the mechanism for making such an application is the filing of an originating application pursuant to section 6 of the Planning and Environment Court Rules 2018 (Qld) (“PECR”). It is a requirement pursuant to section 8(1) of the PECR that an originating application “must name as a respondent the entity directly affected by the relief sought”. [6] In Wyandra St Developments Pty Ltd v Brisbane City Council,2 Kefford DCJ stated that the requirement in section 8(1) quoted above is explained in part by the common law doctrine of natural justice. Her Honour observed at [13]: The duty to afford natural justice does not extend to persons who are simply indirectly affected as a member of the public or a class of the public generally. Rather, there must be some individual interest that directly affects the individual: Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, 584. The obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on the statutory framework. What is appropriate in terms of natural justice depends on the circumstances of the case, including, amongst other things, the nature of the inquiry, the subject-matter, and the rules under which the decision- maker is acting: Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, 584-5. [7] Obviously there is a difference between a submitter appellant having a right to be heard and whether or not they have something worthwhile to say. It is the right to be heard which is lost by not naming and serving the parties to an appeal in a subsequent proceeding of the type before me. It is one thing to deny them an opportunity to be 2 [2024] QPEC 28. -- 3 of 5 -- 4 heard about matters that affect them and another thing to submit, as the applicant does, that what they may have to say is of little or no consequence. [8] Subsequently, her Honour observed that submitters who participate in an appeal in this Court are to be named as respondents to an originating application brought seeking a minor change to a resulting development approval. Her Honour emphasised that there is no statutory intention to the contrary. Her Honour observed that such a finding is consistent with a broad discretion conferred on the Court in assessing such an application pursuant to section 81(2) of the PA. Ultimately, her Honour held at [29]: This supports a finding that, in an originating application made to the Court to change a development approval given or changed by the Court, it is necessary to name those individuals who were party to the original judgment to give effect to the doctrine of natural justice. Naming those individuals as a respondent to the originating application provides them with the relevant opportunity to be heard. [9] The applicant seeks to distinguish the reasoning in Wyandra St Developments on the basis that the appeal leading to the development approval before me proceeded to a judgment after a full hearing on the merits, whereas Wyandra St Developments was a consent judgment of the Court and the proposed changes in that case went to the heart of the compromise. It is submitted that none of the proposed changes before me seek to alter the submitter appellants’ primary concerns in the appeal, which related to the “bulk, form or scale” of the approved development, although it is subsequently conceded that changes proposed to the built form may be relevant to them. [10] In the alternative, it is submitted that I should excuse any non-compliance in naming the submitter appellants as respondents and serving them, utilising the broad discretion to deal with non-compliance pursuant to section 37 of the Planning and Environment Court Act 2016 (“PECA”). In this regard, in exhibit 1 before me the similarities in the proposed building footprints and streetscape elevations are emphasised. [11] Given the extent of the issues canvassed in the reasons for judgment in determining the appeal, and the number and scope of the proposed changes the subject of the -- 4 of 5 -- 5 originating application, I am not satisfied that there is a basis for distinguishing Wyandra St Developments. Judge Kefford was right to point out the importance of not seeking to exclude parties who have legitimate interests in the outcome of proceedings in this Court. While it is true that Chapter 3, Subdivision 2, of the PA does not expressly mandate the inclusion of submitter appellants as parties to an originating application seeking changes to a development approval, there are strong discretionary reasons for their inclusion. These include not only considerations of natural justice, but also the need for the Court to fully assess the minor change application, pursuant to section 81(2) of PA, which requires the Court to consider all matters it “would or may assess or have regard to if the change application were a development application” in subsection 81(2)(da). There is also a broad discretion for the Court to consider another matter that it “considers relevant” in section 81(2)(e). [12] It would be unusual for the Court to proceed to assess an application for a minor change to a development approval without affording submitter parties to a preceding appeal a right to be heard. Obviously they have a right to be heard in respect of a development application should they elect to become parties to a subsequent appeal. Clearly, this is a matter within the contemplation of section 81(2). [13] The applicant has had an opportunity to amend its originating application to include the submitter appellants and then to serve them in circumstances where it was filed after the delivery of judgment in Wyandra St Developments. It has elected not to do so and sought final orders today, foreshadowing an application for discretionary relief pursuant to section 37 of the PECA if necessary, to avoid its obligations in this regard. It is not appropriate, in the exercise of the discretion of the Court, to excuse this non- compliance. [14] The originating application is dismissed. -- 5 of 5 --