Donovan v Brisbane City Council [2016] QPEC 41 [2016] QPELR 779

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Donovan v Brisbane City Council [2016] QPEC 41 PARTIES: RAELENE GAYLE DONOVAN (Applicant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: BD 1146 of 2016 DIVISION: Planning and Environment PROCEEDING: Application in pending proceeding ORIGINATING COURT: Planning and Environment Court of Queensland DELIVERED ON: 1 September 2016 DELIVERED AT: Brisbane HEARING DATE: 21 June 2016 JUDGE: Searles DCJ ORDER: 1. Nicholas Andrew Buckle and Margaret Helen Jose- Buckle be joined as the Co-Respondents by Election to proceeding no 1146 of 2016. 2. The costs of the Applicants for Joinder will be reserved to the hearing of the Originating Application. CATCHWORDS: ENVIRONMENT AND PLANNING – APPLICATION – JOINDER OF PARTIES – where an application for joinder has been brought by an adjoining landowner – where approval has been sought for permissible change to a development approval – where the change will result in an increase in the building location envelope – where the change will result in a corresponding reduction of the area subject to a covenant for the preservation of native animals and plants – whether there is scope for the application of the Uniform Civil Procedure Rules 1999 (Qld) – whether the adjoining landowners are -- 1 of 8 -- 2 directly affected for the purposes of rule 8 of the Planning and Environment Court Rules 2010 (Qld) Sustainable Planning Act 2009 (Qld) s 369(1) Uniform Civil Procedure Rules 1999 (Qld) r 69(1) Planning and Environment Court Rules 2010 (Qld) r 3, 8. Dillon v Douglas Shire Council [2004] QPEC 50. COUNSEL: Mr M Connor for the Applicants for Joinder Mr A Skoein for the Applicant SOLICITORS: Connor O’Meara Solicitors for the Applicants for Joinder Pan & Partners Lawyers for the Applicant Background [2] By Originating Application1 filed 24 March 2016 (‘Originating Application’), Raelene Gayle Donovan sought approval pursuant to section 369(1) of the Sustainable Planning Act 2009 (Qld) (‘SPA’) for permissible change to a development approval granted by this Court on 20 October 2014 by Order of His Honour Judge Wilson SC in Appeal No BD 4628 of 2004 in respect of a property at 221 Dewar Terrace, Corinda, 4075 QLD. [3] The original development approval of 20 October 2014 (‘Original Development Approval’) granted approval for reconfiguration of land that was, at that time, described as Lot 4 on SP147464 (‘Lot 4’). The Original Development Approval reconfigured Lot 4 to create Lot 6 on SP182830 (‘Lot 6’) and Lot 7 on SP182830 (‘Lot 7’). [4] Condition 8 of the Original Development Approval limited ‘land-disturbing site works’ on each of Lot 6 and Lot 7 to areas within the designated building location 1 No 1146 of 2016 filed in the Planning and Environment Court at Brisbane. -- 2 of 8 -- 3 envelope (‘BLE’). Condition 12 of the Original Development Approval imposed requirements for the registration of a covenant (‘Covenant’), conserving plants and native animals within a covenant area over each of Lot 6 and Lot 7. [5] The Originating Application now seeks approval to change Condition 8 to enlarge the extent of the BLE over Lot 7 to facilitate the construction of a two-storey garage, containing a workshop on the upper level on the northern part of Lot 7 (‘Garage’). It also seeks a consequential amendment to Condition 12 to reflect a reduction in the area covered by the Covenant in order to facilitate the construction of the Garage on Lot 7. Application for Joinder [6] Nicholas Andrew Buckle and Margaret Helen Jose-Buckle (‘Applicants for Joinder’) are the registered owners of Lot 6. The Applicants for Joinder seek an order pursuant to rule 8 of the Planning and Environment Court Rules 2010 (Qld) (‘the P&E Court Rules’) or, in the alternative, rule 69(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) to be joined as the Co-Respondent by Election to the Originating Application proceeding. Ms Donovan (‘the Applicant’) opposes the joinder in this proceeding of the Applicants for Joinder. Despite the submissions regarding substantive, merits-based issues that have been provided by both parties, the only issue to be decided is an application for joinder. Relevant Legislative Framework [7] Rule 8(1) of the P&E Court Rules provide: Originating process – respondent (1) An originating application must name as a respondent the entity directly affected by the relief sought. -- 3 of 8 -- 4 [8] A question arises and that is whether there is scope for the application rule 69(1) of the UCPR which provides: 69 Including, substituting or removing party (1) The court may at any stage of a proceeding order that— (a) a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or (b) any of the following persons be included as a party— (i) a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in 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 the proceeding. [9] In my view, it is not necessary to consider rule 69(1) of the UCPR as the P&E Court Rules unambiguously state that only those entities which are directly affected by the relief sought are to be named in proceedings. Further, rule 3 of the P&E Court Rules provides: 3 Application of rules (1) These rules apply to proceedings in the court. (2) If these rules do not provide for a matter in relation to a proceeding, or proceedings, in the court and the rules applying in the District Court would provide for the matter in relation to a proceeding, or proceedings, in the District Court, the rules applying in the District Court apply for the matter in the court with necessary changes. (emphasis added) [10] It is clear that the P&E Court Rules provide for the matter of joinder to the extent that there is no room for the operation of rule 69(1) of the UCPR. -- 4 of 8 -- 5 Joinder of Parties [11] In considering rule 8(1) regard must be had to the nature of the relief sought to determine whether the Applicants for Joinder are ‘directly affected’ so as to be entitled to be named as a respondent in the proceeding. [12] In Dillon v Douglas Shire Council2, the effect of rule 8 of the P&E Court Rules 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.’3 [13] In reliance on this statement, the Applicant submits that the Applicants for Joinder are not persons directly affected by the relief sought in the Originating Application. They further submit that the Originating Application, seeking a permissible change to the Original Development Approval, does not require the Applicants for Joinder to do, or refrain from, doing anything, to adopt the test in Dillon. As detailed above at paragraph [5], the proposed changes involve increasing the approved BLE on Lot 7 to allow for a garage to be constructed, and consequential changes to reflect a reduction in the area of the lot protected by the Covenant. 2 [2004] QPEC 50. 3 Ibid at [5]. -- 5 of 8 -- 6 [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. These impacts were first detailed in a letter written to this Court by their solicitors, and which as was copied to the Applicant and the Council (‘Letter to the Court’). The Letter to the Court was annexed to the Affidavit of Thomas Gordon McKeown sworn 13 May 2016 and filed in the Planning and Environment Court on 16 May 2016. The Applicant objects to the tendering of such evidence on the basis that it contains inadmissible hearsay and/or inadmissible opinions, and cannot be relied upon to assert the truth of the matter recorded therein.4 4 Outline of Submissions on behalf of the Applicant, paragraphs 1.7-1.8. -- 6 of 8 -- 7 [17] By way of an affidavit filed and sworn on 20 June 2016, one day prior to the hearing, Nicholas Andrew Buckle, of the Applicants for Joinder, adopted the statements contained within the Letter to the Court and confirmed that such statements represented the instructions provided to his solicitors and reflected his honestly held views about the impacts of the proposed change, noting that advice from appropriately qualified experts about other impacts had not yet been sought. In the circumstances, I do not consider such documentary evidence to be inadmissible as hearsay. Mr Buckle was not cross-examined and his evidence regarding the impacts was not challenged. The evidence shows the following impacts will result should the relief sought in the Originating Application be granted: 1. A reduction in the area of vegetation on Lot 7 that will be protected by the Covenant; 2. The visual intrusion of the Garage; 3. The loss of privacy as a result of the construction of the Garage; 4. The impacts of headlight glare; and 5. The potential disruptions during the construction phase of the Garage. [18] In my view, the evidence clearly demonstrates that the interests of the Applicants for Joinder will be directly affected by the construction within the meaning of rule 8 of the P&E Court Rules. Accordingly, it is appropriate for Nicholas Andrew Buckle and Margaret Helen Jose-Buckle to be joined as Co-Respondents by Election to this proceeding. -- 7 of 8 -- 8 Orders [19] I make the following orders: 1. Nicholas Andrew Buckle and Margaret Helen Jose-Buckle be joined as the Co-Respondents by Election to proceeding no. 1146 of 2016. 2. I will hear the parties on any necessary consequential orders. -- 8 of 8 --