Coolum Properties P/L & Bunnings Group Ltd v Maroochy SC & Ors [2007] QCA 299

SUPREME COURT OF QUEENSLAND CITATION: Coolum Properties P/L & Bunnings Group Ltd v Maroochy SC & Ors [2007] QCA 299 PARTIES: COOLUM PROPERTIES PTY LTD (applicant/second applicant) BUNNINGS GROUP LTD (first applicant) v MAROOCHY SHIRE COUNCIL (respondent/first respondent) THE CHIEF EXECUTIVE OF TRANSPORT under the Transport Infrastructure Act 1994 (Qld) (first co-respondent by election/second respondent) JAMES WILLIAM SUMMERS (second co-respondent by election/third respondent) DONALD CAROLAN and SUSAN CAROLAN (third co-respondents by election/fourth respondents) BRENNAN DON CAROLAN and JENEANE MARIE CAROLAN (fourth co-respondents by election/fifth respondents) PETER MONTGOMERY BROWN (fifth co-respondent by election/sixth respondent) KERRY ANNE GOUDGE (sixth co-respondent by election/seventh respondent) FILE NO/S: Appeal No 3394 of 2007 DC No 84 of 2006 DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application – Civil ORIGINATING COURT: Planning & Environment Court at Maroochydore DELIVERED EX TEMPORE ON: 14 September 2007 DELIVERED AT: Brisbane HEARING DATE: 14 September 2007 JUDGES: Jerrard and Holmes JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. The application for joinder orders under the Uniform Civil Procedure Rules 1999 rule 69 is refused 2. The applicant, Bunnings Group Ltd, is to pay the costs of the respondent council of and incidental to the -- 1 of 7 -- 2 JUDGMENT application for joinder CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PARTIES – OTHER MATTERS – where the second applicant Coolum Properties Pty Ltd seeks leave to appeal against a decision of the Planning and Environment Court – where the first applicant Bunnings Group Ltd seeks to be joined as a party to the application for leave to appeal – whether the joinder of Bunnings Group Ltd is desirable, just and convenient to enable the Court to adjudicate effectively on the matter under appeal Integrated Planning Act 1997 (Qld), s 4.1.56 Uniform Civil Procedure Rules 1999 (Qld), r 69 Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 41; Appeal No 7401 of 2005, 24 February 2006, considered COUNSEL: D F Jackson QC, with R S Litster, for the first applicant M Hinson SC for the second applicant G J Gibson QC, with T Trotter, for the respondent No appearance for the remaining respondents SOLICITORS: Deacons Lawyers for the first applicant P&E Law for the second applicant Maroochy Shire Council Legal Services for the respondent No appearance for the remaining respondents -- 2 of 7 -- 3 JUDGMENT JERRARD JA: This application or proceeding is one made under section 4.1.56 of the Integrated Planning Act 1997 (Qld) in which Coolum Properties Pty Ltd seeks leave to appeal against a decision of the Planning and Environment Court given on 7th March 2007. By that decision the Planning and Environment Court dismissed in appeal number 84 of 2006 an appeal against a refusal by the respondent shire council for an approval of an application for a material change of use of some land. If the application to this Court is successful and if the approval sought from the respondent council is ultimately given, then the applicant, Coolum Properties Pty Ltd, will construct various buildings which I will call showrooms or shops or stores on the land. It expects to lease one or more of those two the Bunnings Group Limited. Bunnings Group Limited is therefore a possible tenant in the proposed development. It has applied by an application dated the 11th of May 2007 for an order from this Court joining it as a party to the application by Coolum Properties Pty Ltd for leave to appeal. That application is based on the provisions of the Uniform Civil Procedure Rules 1999 (Qld) in particular Rule 69 sub-rule 1(b) that provides that, "The Court may at any stage of a proceeding" - and this would be an appropriate Court - "order that any of the following persons be included as a party. A person whose presence before the Court is necessary to enable the Court -- 3 of 7 -- 4 JUDGMENT to adjudicate effectually and completely on all matters in dispute in the proceeding", and more importantly, "a person whose presence before the Court would be desirable, just and convenient to enable the Court to adjudicate effectually and completely on all that is in dispute connected with the proceeding." Senior counsel Mr Jackson QC for the Bunnings Group Limited points in particular to the affidavit filed in support of the application to the matter of whether or not the proposed premises would fall within the definition of a showroom or a warehouse or a store in the relevant planning scheme. This is a matter of considerable economic and commercial concern to Bunnings. The applicant to be joined refers appropriately to the decision of this Court in Leda Holdings Pty Ltd v. Caboolture Shire Council [2006] QCA 41 where this Court allowed an application for joinder by a party who was the successor in title to a named respondent in an application for leave to appeal which was proposed to be heard in this Court. The nominal respondent or the nominated respondent was that applicant's successor or predecessor entitled to the land, and having sold it showed very little interest in upholding the decision sought to be appealed. In those circumstances this Court exercised the power given in UCPR 69. -- 4 of 7 -- 5 JUDGMENT Those circumstances do differ from these because Bunnings is not in any sense a holder of a title to the land, but is a potential lessee or tenant. Mr Jackson has referred to the critical issues of fact which he submits may be thrown up in the appeal, but there has been considerable discussion as to the extent to which the decision below turned on the issue of showroom, shop or warehouse. One can trace through in paragraphs 24, 40 and 56 of the judgment sought to be appealed certain propositions referred to by all counsel on this application for joinder. The first was the finding by the learned Judge of the Planning and Environment Court that in that Judge's opinion the proposed store which Bunnings would tenant fitted much more readily into the definition of shop in the Town Planning Scheme, which observation was followed by one made in paragraph 40 to the effect that the learned Judge accepted the analysis of a witness mainly that the scale of the development proposed by the rejected proposal exceeded that contemplated by the Planning Scheme. That conclusion, of course, could be arrived at quite independently of whether or not one categorised the development as a showroom or a shop. Finally in paragraph 56 the learned Judge concluded that the major impediment to the proposal the subject of the appeal was its conflict with the Planning Scheme and that the conflict lay in the type and intensity of the proposed development in addition to that already approved for the -- 5 of 7 -- 6 JUDGMENT area. Despite the careful arguments advanced by senior counsel on behalf of the Bunnings Group Limited, it appears to me that the issue of showroom, warehouse, store or shop was a part only in a process of reasoning, that the critical point was a conflict between the intensity of proposed development by whatever name, and that already approved for the area. Accordingly, I am not persuaded that the presence of the Bunnings Group Limited is just or necessary or convenient or desirable to enable this Court to adjudicate effectively on the matter under appeal. That is whether or not the learned Judge is shown to have erred in the ultimate conclusion reached in paragraph 56 that there was a conflict between the proposal and the Planning Scheme. Those matters are already litigated to some extent in the arguments of the parties who are properly before the Court, and the argument this morning has not explained why further representation by an entity with a commercial interest is necessary to allow the Court to adjudicate completely or effectively or even at all on that matter. Accordingly I am satisfied that the facts are significantly different from those in Leda Holdings, and sufficient circumstances have not been shown pursuant to UCPR 69 to entitle this Court to make the order sought. Accordingly for my part I would refuse the application. -- 6 of 7 -- HOLMES JA: I agree. It seems unlikely that the characterisation of the premises as a store or showroom will emerge as an issue on the appeal, but if it does it is a matter which can be sufficiently agitated by the existing parties to the application. CULLINANE J: I also agree. JERRARD JA: The order of the Court will be that the application for joinder orders under UCPR 69 is refused. ... JERRARD JA: I would further order that the applicant, Bunnings Group Limited, pay the costs of the respondent council of and incidental to the application for joinder. HOLMES JA: I agree. CULLINANE J: I agree also. ... ----- 7 JUDGMENT -- 7 of 7 --