Bishopp Outdoor Advertising Pty Ltd v Moreton Bay Regional Council [2020] QPEC 1 (2020) QPELR 980

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Bishopp Outdoor Advertising Pty Ltd v Moreton Bay Regional Council [2020] QPEC 1 PARTIES: BISHOPP OUTDOOR ADVERTISING PTY LTD (Appellant) v MORETON BAY REGIONAL COUNCIL (respondent) FILE NO/S: 3938 of 2019 DIVISION: Planning and Environment Court, Brisbane PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 7 February 2020, ex tempore DELIVERED AT: Brisbane HEARING DATE: 7 February 2020 JUDGE: Everson DCJ ORDER: Application for joinder is dismissed CATCHWORDS: PLANNING AND ENVIRONMENT – APPLICATION – joinder of parties – whether a request under s 43 of the Transport Infrastructure Act 1994 (Qld) was made – whether the applicant should be joined as a party to the appeal pursuant to r 69 of Uniform Civil Procedure Rules 1999 (Qld) APPEAL – against refusal of development application for operational works for an advertising device LEGISLATION: Planning Act 2016 (Qld) Transport Infrastructure Act 1994 (Qld) Uniform Civil Procedure Rules 1999 (Qld) CASES: Novadeck v Brisbane City Council [2016] QPELR 951 Leda Holdings Pty Ltd v Caboolture Shire Council [2007] 1 Qd R 467 COUNSEL: K Wylie for the appellant H Stephanos for the respondent J Lyons for the applicant for joinder SOLICITORS: Mullins Lawyers for the appellant Moreton Bay Regional Council for the respondent Norton Rose Fullbright for the applicant for joinder -- 1 of 6 -- 2 [1] This is an application in which the chief executive administering the Transport Infrastructure Act 1994 (“TIA”), effectively the Department of Transport and Main Roads (“DTMR”), seeks to be joined as a party to the appeal. The appeal is against the decision of the respondent to refuse an application for a development permit for operational works for an advertising device on land at Morayfield adjoining the Bruce Highway (“the development application”). [2] The advertising device is a 42 m² illuminated sign, which is intended to replace an existing 18 m² illuminated sign. It will be visible from the Bruce Highway. Indeed, that is the purpose of the development application. The Bruce Highway is a State- controlled road and defined as a motorway pursuant to the TIA. It is therefore a road which comes under the jurisdiction of the DTMR. [3] The development application was code assessable, triggering assessment against the Advertising Devices Code pursuant to the respondent’s planning scheme. Relevantly, the respondent was required to assess whether or not the advertising device would adversely impact on the safety and efficiency of the State-controlled road in question, namely, the Bruce Highway. As it was entitled to do, the respondent sought third party advice about the development application pursuant to s 34.1 of the Development Assessment Rules (“DAR”) made under s 68 of the Planning Act 2016. Pursuant to the DAR, a third party is defined extremely broadly, being “any person, agency or organisation other than the parties to the application.” [4] In these circumstances, a third party of itself does not enjoy any appeal rights. However, the DTMR does have a statutory role to play in the assessment of a development application such as this. Pursuant to s 43 of the TIA: “(1) A local government must obtain the chief executive’s written approval if it intends to approve the erection, alteration or operation of an advertising sign or other advertising device that would be— (a) visible from a motorway; and (b) beyond the boundaries of the motorway; and (c) reasonably likely to create a traffic hazard for the motorway.” [5] A person whose interests are affected by such a decision of the DTMR may firstly ask the chief executive to review the decision pursuant to s 485, and ultimately has a -- 2 of 6 -- 3 right of appeal to the Planning and Environment Court pursuant to s 485B and Schedule 3 of the TIA. The respondent wrote a letter to the DTMR dated 19 August 2019, enclosing a copy of the development application and relevantly stating: “This request also includes a request for the Chief Executive’s Written Approval under Section 43 of the Transport Infrastructure Act 1993 [sic]. The proposal incorporates the replacement of the existing billboard advertising device with a new billboard. The new billboard is to be illuminated and generally consistent with the standard design and dimensions of a Supersite billboard. It is requested that you provide third party advice within ten (10) business days after the date of this letter.” [6] It is submitted by both the DTMR and the respondent that this letter constituted a request in the terms of s 43(1) of the TIA. On the facts before me, I do not accept this submission. The letter sought advice as well as purporting to request written approval pursuant to s 43. The advice stage of the decision-making process must necessarily occur prior to the formulation of an intention to approve the development application. There is no evidence before me that this letter evinces an intention to approve the erection, alteration or operation of the advertising sign, and moreover there is no evidence that the respondent had formed the view that the sign in question would be “reasonably likely to create a traffic hazard for the motorway” at the time the letter was written. [7] The application before me is brought pursuant to r 69 of the Uniform Civil Procedure Rules 1999 (“UCPR”), which apply because the Planning and Environment Court Rules 2018 do not provide for joinder in relation to a proceeding in this court. Relevantly, r 69 states: “(1) The court may at any stage of a proceeding order that— … (b) any of the following persons be included as a party— -- 3 of 6 -- 4 (i) a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters of dispute in the proceeding; (ii) a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with a proceeding.” [8] It is clear that the DTMR has significant concerns as to the safety of the proposed sign in the context of this section of the Bruce Highway. It is submitted on behalf of the DTMR that the safety and efficiency of a State-controlled road is an issue and that the custodian of the road, the DTMR, wishes to be heard in relation to it. It is further submitted that prejudice may arise should a finding be made adverse to the interests of the DTMR without it having the right to be heard. [9] It is also emphasised that joining the DTMR is desirable in the interests of case management and efficiency in circumstances where it holds significant statistical information concerning the Bruce Highway which is not in the hands of the respondent, in particular information relating to traffic safety issues. At first glance, therefore, it would appear that the DTMR has a compelling argument that its presence before the court is desirable, just and convenient pursuant to r 69 of the UCPR. [10] However, the application is brought in circumstances where the development application before the court is code assessable against the respondent’s planning scheme and the respondent is the assessment manager charged with the responsibility of determining the development application and determining it in circumstances where the relevant assessment benchmarks expressly require a consideration of the matters which are of concern to the DTMR. It is true that the legislative framework which applies to a development application such as this contemplates a role for the DTMR in the circumstances contemplated by s 43. These circumstances are subject to certain prerequisites. The local government must intend to approve the development application in circumstances where it would be reasonably likely to create a traffic hazard for the motorway in question. As is evident by the appeal itself, the respondent does not intend to approve the development application, and on the facts before me, I am of the view that the letter dated 19 August 2019 quoted above -- 4 of 6 -- 5 did not convey such an intention. As s 43 was not engaged, there was no scope for the DTMR to grant an approval of the type contemplated by this provision, and an opportunity to review and then appeal against such a decision to this court did not arise. [11] It is important to be cognisant of the fact that a right to be heard in respect of a matter in which a party asserts an interest is subject to the relevant statutory intent which is evident in the applicable legislation. As I observed in Novadeck v Brisbane City Council [2016] QPELR 951 at 957 [18]: “The applicability of the rules of natural justice is subject to the relevant statutory law that applies. Pursuant to SPA, Beriley does not have a right to be heard in the determination of the application brought by Novadeck. This is uncontentious. It is not the intention of SPA that those wishing to make a submission in respect of a development necessarily have a right to be heard in a subsequent court proceeding. An obvious example is a code assessable development application … On the facts before me, the concerns of Beriley are being brought to the attention of the court by the Brisbane City Council in the notice it has given pursuant to section 373 of SPA. There is nothing before me which suggests that the court cannot undertake the task mandated by the legislative framework when comparing the further changes the subject of the Novadeck application to the Modified Approval without including Beriley as a party to the proceeding pursuant to rule 69 of the UCPR. Conversely, there is a prospect that the parties to the Novadeck application would incur additional unnecessary costs should Beriley be included as a party.” [12] An example of a circumstance where r 69 was given effect in the context of a planning dispute is Leda Holdings Pty Ltd v Caboolture Shire Council [2007] 1 Qd R 467, but the circumstances were very different. The owner of land to which development rights attached sought to be substituted as the appellant in a proceeding in circumstances where the previous owner which held benefit of a development approval no longer had any interest in the outcome of the proceeding. This is a very different factual matrix to that before me. [13] On the facts before me, the respondent is charged with assessing the impact of the development application on the safety and efficiency of the adjoining State-controlled -- 5 of 6 -- 6 road. In refusing the development application, the position of the respondent aligns with that of the DTMR. If, contrary to the facts before me, the position of the respondent differed from that of the DTMR, then the DTMR had the power to refuse the development application by withholding approval pursuant to s 43 of the TIA. The appellant would then have had the opportunity of ultimately appealing to this court if it was dissatisfied with the refusal. The same result appertains in the circumstances before me, but there is no role for the DTMR because the respondent, as the assessment manager, has already refused the development application and taken on the same role which the DTMR would conceivably have taken had the respondent indicated its intention to approve the development application pursuant to s 43 of the TIA. [14] While I note the importance of safety and efficiency issues relating to this part of the Bruce Highway being agitated in the appeal, I am satisfied that the current legislative regime provides more than sufficient scope for this to occur without the DTMR becoming a party to the appeal. It is said that the DTMR has information that other parties don’t have, however I am satisfied that this information can readily be obtained from the DTMR by the respondent either informally or through the necessary third-party disclosure provisions in the UCPR. Conversely, to add an additional party which currently, pursuant to the statutory regime, has the same obligations and interest in relation to adverse impacts on the safety and efficiency of the relevant part of the Bruce Highway would, in my view, likely incur additional and unnecessary costs which cannot be justified. [15] The final matter which is raised in favour of the application is that paragraph 12 of the notice of appeal would appear to permit an argument as to the extent of the power set out in s 43(1) of the TIA in circumstances where it is asserted that this provision “has no application”. Mr Wylie, on behalf of the appellant, clarified the appellant’s position in respect of this ground in the course of the hearing before me. He indicated that this assertion is limited to asserting as a fact that s 43 was not engaged having regard to the letter dated 19 August 2019 quoted above. In these circumstances, there does not appear to be an issue of wider application which may affect the rights and powers of the DTMR, and this ground of appeal does not, of itself, justify an order joining the DTMR in the appeal. [16] I therefore dismiss the application. -- 6 of 6 --