Aveo Clayfield Pty Ltd v Brisbane City Council [2017] QPEC 60 (2018) QPELR 139

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Aveo Clayfield Pty Ltd v Brisbane City Council [2017] QPEC 60 PARTIES: AVEO CLAYFIELD PTY LTD (ACN 087 435 827) (applicant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 2199 of 2017 DIVISION: Planning and Environment Court at Brisbane PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court at Brisbane DELIVERED ON: 26 October 2017 DELIVERED AT: Brisbane HEARING DATE: 16 October 2017 JUDGE: Everson DCJ ORDER: Application dismissed. CATCHWORDS: PLANNING AND ENVIRONMENT – APPLICATION – joinder of parties – permissible change application – whether proposed second respondents are directly affected by the relief sought Planning Act 2016 s 311 Sustainable Planning Act 2009 ss 367 and 445. Planning and Environment Court Rules r 8 Brisbane City Council v Brook [2015] QPELR 63 Dillon v Douglas Shire Council [2004] QPEC 50 Donovan v Brisbane City Council [2016] QPELR 779 Novadeck Pty Ltd v Brisbane City Council [2016] QPELR 951 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147 -- 1 of 8 -- 2 SOLICITORS: Connor O’Meara for the applicants for joinder Brisbane City Legal Practice for the respondent MinterEllison for the applicant for permissible changes Introduction [1] This is an application in pending proceeding whereby Allan David Catterick and Jennifer Annette Catterick (“the Cattericks”) seek an order pursuant to r 8 of the Planning and Environment Court Rules 2010 (“PECR”) that they be joined as co- respondents by election in this proceeding. [2] In this proceeding, Aveo Clayfield Pty Ltd (“Aveo”) seeks orders changing various aspects of a development approval for a retirement village on land situated at 469 Sandgate Road at Albion (“the site”). The development approval arises as a consequence of an order of the court made on 23 July 1999 as changed by subsequent orders of the court made on 9 June 2000, 10 December 2004, 18 May 2005, 16 February 2015 and 12 February 2016. [3] Aveo filed its originating application on 21 June 2017. Accordingly pursuant to s 311 of the Planning Act 2016, the Sustainable Planning Act 2009 (“SPA”) continues to apply to the proceeding.1 The scope of a permissible change application [4] Aveo asserts that the changes it wishes to make to the development approval are a permissible change pursuant to s 367 of SPA. It provides: “367 What is a permissible change for a development approval (1) A permissible change, for a development approval, is a change to the approval that would not, because of the change— (a) result in a substantially different development; or (b) if the application for the approval were remade including the change— (i) require referral to additional concurrence agencies; or (ii) for an approval for assessable development that previously did not require impact assessment—require impact assessment; or (c) for an approval for assessable development that previously required impact assessment— be likely, in the responsible entity’s opinion, to cause a person to make a properly made 1 Section 311(2)(a). -- 2 of 8 -- 3 submission objecting to the proposed change, if the circumstances allowed; or (d) cause development to which the approval relates to include any prohibited development. (2) For deciding whether a change is a permissible change under subsection (1)(b) or (d), the planning instruments or law in force at the time the request for the change was made apply.” [5] The procedure for changing a development approval is set out in Chapter 6, Part 8, Division 2, Subdivision 2 of SPA. While s 372 requires that a copy of the request be given to various “entities” and s 373 gives such an entity the opportunity to indicate whether it objects to the request to change a development approval, the ultimate decision is made by the entity which issued the development approval (called the “responsible entity”), having regard to a number of matters.2 [6] The responsible entity decides the request, taking into account the matters set out above and the definition of a permissible change in s 367 of SPA. Significantly, third parties do not have a right to be heard in this process. Where the responsible entity is the court, as is the case on the facts before me, a copy of the request to change the development approval is to be given to the assessment manager and any concurrence agencies for the original application.3 Whilst they have the opportunity to indicate whether or not they object to the change being made and the reasons for any such objection, submitters or other third parties are not afforded this opportunity. The Cattericks and their contentions [7] The Cattericks own land adjoining the site. They purchased their land well after the site was approved for use as a retirement village.4 They contend that the changes the subject of the Aveo application will result in unacceptable traffic impacts on them including increased vehicle traffic in Highland Street where they and Aveo share a frontage. They also allege that they will suffer unacceptable amenity impacts including from overlooking and excessive noise as a consequence of the proposed changes to the development approval.5 [8] The Cattericks do not have any right to be heard in respect of these concerns, having regard to the specific provisions of SPA noted above. As the development approval for a retirement village was issued by the court, the vehicle for changing the development approval is by filing an originating application, pursuant to the PECR.6 Rule 8 of the PECR relevantly states: “(1) An originating application must name as a respondent the entity directly affected by the relief sought.” 2 Sections 374, 375. 3 Section 372(b). 4 Affidavit of Jennifer Annette Catterick, filed 11 September 2017, para 7. 5 Ibid, para 11(f). 6 Section 6. -- 3 of 8 -- 4 [9] The Cattericks assert that they are directly affected by the changes the subject of the originating application because they “will suffer direct impacts if the proposed changes are approved, including privacy, amenity, traffic and potential acoustic impacts”.7 Are the Cattericks directly affected by the relief sought in the originating application? [10] In Brisbane City Council v Brook8 this court considered the ambit of r 8 of the PECR in the context of an originating application brought by the Brisbane City Council seeking declarations and enforcement orders pursuant to SPA. It was alleged that premises at 121 Besham Parade Wynnum were not being used lawfully as a house.9 An application for joinder was brought by a number of individuals who owned land in the vicinity of the respondent who had received Enforcement Notices making similar allegations.10 The court applied an earlier decision in the following terms:11 “[5] In Dillon v Douglas Shire Council [2004] QPEC 50, the effect of Rule 8 was considered by Skoien SJDC in the following terms: ‘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.’ [6] The same may be said of the proposed second respondents in the application before me. They are not “directly affected by the relief sought” and there is no obligation under Rule 8 to name them as respondents in this proceeding. Accordingly, the first ground of relief sought by the proposed second respondents fails.” [11] A different approach was taken by this court in Donavan v Brisbane City Council12 in circumstances where the applicants for joinder who were owners of neighbouring 7 Outline of Submissions of the Cattericks, para 31(a). 8 [2015] QPELR 63. 9 Ibid at [1]. 10 Ibid at [2]. 11 Ibid at [5] and [6]. 12 [2016] QPELR 779. -- 4 of 8 -- 5 land alleged that they would suffer amenity impacts as a consequence of the relief sought in a permissible change application. Relevantly the court stated: “[14] But 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 P&E Court Rules, 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. [15] 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. [16] 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, namely Lot 6.”13 [12] In attempting to reconcile these two approaches, it is necessary to have regard to principles for construing statutes. They were considered recently by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council & Ors14 where in giving the leading judgment of the court, Morrison JA stated, inter alia: “The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:15 ‘[69] … Thus, the process of construction must always begin by examining the context of the provision that is being construed. [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to 13 Ibid paras [14] – [16]. 14 [2014] QCA 147 at [52]. 15 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at 381, 382, 384 (footnotes omitted). -- 5 of 8 -- 6 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. … [72] 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…” [13] The legislative framework in SPA only affords a limited right for third parties to be heard in the court in relation to the impacts of lawful development.16 To participate in an appeal, it is necessary to have first made a properly made submission in circumstances where a development application requires impact assessment.17 The consequences of this in the context of an application for a permissible change were considered by the court in Novadeck Pty Ltd v Brisbane City Council18 where the court observed:19 “[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 16 Sections 461, 462, 463 and 464. 17 Section 314. 18 [2016] QPELR 951. 19 Ibid at [18]. -- 6 of 8 -- 7 uncontentious. It is not the intention of SPA that those wishing to make a submission in respect of a development application necessarily have a right to be heard in a subsequent court proceeding. An obvious example is a code assessable development application. The exercise which must be undertaken by the court pursuant to Novadeck’s application is prescribed by s 367. It is a confined inquiry which is informed by the subsequent provisions of SPA noted above. Significant constraints are placed upon the circumstances in which a change to a development approval can occur… 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... Conversely there is a prospect that the parties to the Novadeck application would incur additional unnecessary costs should Beriley be included as a party.” [14] Conversely, s 445 of SPA makes provision for the PECR. Relevantly it is stated: “… (3) The procedures of the court are governed by the rules. … (5) The rules are subordinate legislation.” Applying the principles of statutory construction in Project Blue Sky quoted above, it is not the legislative intent that the PECR, which are subordinate to the substantive legislative provisions in 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. As noted in Novedeck, the assessing of a permissible change application is a confined enquiry which is informed by the relevant provisions of SPA. The fact that the responsible entity, pursuant to s 369 of SPA is the court, does not warrant an interpretation of r 8 of the PECR which entitles a third party, who does not otherwise have a right to be heard in respect of this type of application, such an opportunity simply because the procedure for making the request to change the development approval necessitates the filing of an originating application. Rule 8 is subordinate to the relevant provisions of SPA. It does not confer rights not contemplated by them. A literal interpretation of r 8 which may suggest otherwise should be avoided. [15] Moreover, a factual analysis of the consequences of the relief sought in the originating application does not bear out the submission of the Cattericks that they are directly affected by the relief sought in the originating application. Should Aveo be successful in obtaining the relief sought in the originating application, this will result in a change to the conditions of approval which apply to the site. Aveo will be directly affected as its development rights will have changed. The respondent will be directly affected as it will be bound to administer the development approval in its changed form. -- 7 of 8 -- 8 However, until any building work ultimately takes place pursuant thereto, the traffic and amenity affects alleged by the Cattericks will not arise. There is therefore an intermediate step between a court order approving a request to change a development approval and any adverse impacts being experienced by third parties who own adjoining land. Therefore, on the facts before me the Cattericks are not directly affected by the relief sought in the originating application. This is made abundantly clear when it is considered that not all development approvals are acted upon. Conclusion [16] It does not accord with the legislative framework of SPA that r 8 of the PECR be interpreted in such a way that it gives the Cattericks a right to be heard in respect of the originating application which is not contemplated when a request to change a development approval is made pursuant to SPA. [17] On the facts before me, the Cattericks are not an entity directly affected by the relief sought in the originating application in any event. [18] To the extent that Donovan suggests otherwise, it ought not be followed. [19] I dismiss the application for joinder. -- 8 of 8 --