Cylinder Cove Pty Ltd v Townsville City Council & Ors [2023] QPEC 11

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Cylinder Cove Pty Ltd v Townsville City Council & Another [2023] QPEC 11 PARTIES: CYLINDER COVE PTY LTD (Appellants) v TOWNSVILLE CITY COUNCIL (Respondents) and STRATIS MONOLIS (Co-Respondents) and DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE LOCAL GOVERNMENT AND PLANNING (Co-Respondents by election) FILE NO/S: 1837/2022 DIVISION: Planning and Environment Court PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 24 March 2023 DELIVERED AT: Brisbane HEARING DATE: 24 March 2023 JUDGE: Rackemann DCJ ORDER: The time for the Chief Executive, Department of State Development, Infrastructure, Local Government, and Planning (Chief Executive) to file and serve a Notice of Election under rule 15(2) of the Planning and Environment Court Rules 2018 (Qld) (PEC Rules) be extended to 22 March 2023. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF -- 1 of 3 -- 2 ACTION AND OF PARTIES – GENERALLY – where the Chief Executive applied to extend time to join as a party to the proceeding – where the Court has discretion to extend time in circumstances where there have been sufficient grounds demonstrated – where orders were sought for the proceeding to be joined with another where the Chief Executive is already a party – where the Chief Executive initially decided not to elect to join – whether the Court should exercise its discretion to extend time in the circumstances. COUNSEL: W Macintosh for the Appellant. B Swain for the Respondent. KW Wylie for the Co-Respondent by election. SOLICITORS: HWL Ebsworth for the Appellant. Gadens Lawyers for the Respondent. HopgoodGanim Lawyers for the Co-Respondent by election. -- 2 of 3 -- 3 [1] This is an application to extent time to allow the Chief Executive to join as a party. The Court has discretion to extend time in circumstances where there have been sufficient grounds demonstrated. In this case, the matters at issue in the appeal concern matters of relevance to the referral jurisdiction of the Chief Executive. It is in the interests of justice that the Chief Executive be permitted to join, particularly in circumstances where it is not suggested that there would be any prejudice to the other parties if the extension time were granted. It may be noted further, that orders are sought today for this proceeding to be joined with another, where the Chief Executive is already a party. [2] The disappointing aspect of the application relates to the explanation for what is a very late decision by the Chief Executive to wish to join. It appears that the Chief Executive initially decided not to elect to join, on the basis that there was not a direct challenge to the conditions which were imposed by reason of the Chief Executive’s response to the referral. That is a very narrow and inadequate basis upon which to make a decision, upon whether the right to elect to become a party should be exercised. [3] As is said in the affidavit material, and also in the outline of submissions in support of the application, it is, of course, not uncommon once an appeal is up and running for changes to proposals or changes to conditions to occur. One would have thought that in circumstances where the matters in issue concern the subject matter of the referral agency’s jurisdiction, that the decision on whether to elect to become a party would focus upon the relevance of those issues and that the referral agency would elect to respond, in order to assist the Court with evidence as to why it says that the proposal is acceptable if the conditions it contends for are imposed. One can only hope that the experience in this case and in others, where it has been in a position of having to seek the indulgence of the Court as a result of a late change of heart, will cause the decision-making processes to change. Nevertheless, in this case, for the reasons I have outlined, it is appropriate to grant the relief sought. -- 3 of 3 --