Australian Conservation Foundation & Ors v Gold Coast City Council [2000] QPEC 61

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Australian Conservation Foundation & ors v Council of the City of Gold Coast & Ors [2000] QPE 061 and Interpacific Resorts v Gold Coast City Council [2000] QPE 062 PARTIES: Australian Conservation Foundation Gold Coast Inc, Gold Coast & Hinterland Environment Council Inc, Sheila Davis, David William Spain and Rodney Normal Stonebridge (Appellants) v Council of The City of Gold Coast (Respondent) Interpacific Resorts (Australia) Pty Ltd (Co-Respondent) State of Queensland (Co-Respondent by election) and Interpacific Resorts (Australia) Pty Ltd (Appellant) v Gold Coast City Council (First Respondent) State of Queensland (Second Respondent) Australian Conservation Foundation Gold Coast Inc (Third Respondent) Gold Coast and Hinterland Environment Council Inc (Fourth Respondent) -- 1 of 9 -- Judgment ACF v GCCC Sheila Davis (Fifth Respondent) David William Spain (Sixth Respondent) Rodney Norman Stonebridge (Seventh Respondent) FILE NO/S: 1094 of 1998 And 601 of 2000 PROCEEDINGS: APPEALS COURT: PLANNING & ENVIRONMENT COURT OF SOUTHPORT DELIVERED ON: 8 SEPTEMBER 2000 HEARING DATE: 28 August 2000 JUDGE: NEWTON DCJ CATCHWORDS: Request to change conditions of an approval – s 3.5.33 (3) Integrated Planning Act 1997 requiring consent of owner of land – meaning of owner; Rule 8(1) of the Planning and Environment Court Rules, whether joinder of parties other than those parties to the request to change conditions is required; whether public notice of request to change conditions is required. COUNSEL: File No 1094 of 1998 Mr R N Stonebridge (in person) for the Appellants Mr R S Litster for the Respondent Mr P J Lyons QC for the Co-Respondent Miss Y Went (Sol) Co-Respondent – by election File No 601 of 2000 Mr P J Lyons QC for the Appellants Mr R S Litster for the First Respondent Miss Y Went (Sol) for Second Respondent Mr R N Stonebridge for the 3 rd to 7 th Respondents -- 2 of 9 -- Judgment ACF v GCCC SOLICITORS: File No 1094 of 1998 McCullough Robertson for the Respondent Hopgood Ganim for the Co-Respondent Crown Law for the Co-Respondent by election -- 3 of 9 -- Judgment ACF v GCCC IN THE PLANNING AND ENVIRONMENT COURT HELD AT SOUTHPORT QUEENSLAND APPEAL No 1094 of 1998 BETWEEN AUSTRALIAN CONSERVATION FOUNDATION GOLD COAST INC, GOLD COAST & HINTERLAND ENVIRONMENT COUNCIL INC, SHEILA DAVIS, DAVID WILLIAM SPAIN AND RODNEY NORMAN STONEBRIDGE Appellant AND COUNCIL OF THE CITY OF GOLD COAST Respondent INTERPACIFIC RESORTS (AUSTRALIA) PTY LTD Co-Respondent STATE OF QUEENSLAND Co-Respondent By Election APPEAL No 601 of 2000 BETWEEN INTERPACIFIC RESORTS (AUSTRALIA) PTY LTD Appellant AND GOLD COAST CITY COUNCIL First Respondent STATE OF QUEENSLAND Second Respondent AUSTRALIAN CONSERVATION FOUNDATION GOLD COAST INC Third Respondent GOLD COAST AND HINTERLAND ENVIRONMENT COUNCIL INC Fourth Respondent -- 4 of 9 -- Judgment ACF v GCCC SHEILA DAVIS Fifth Respondent DAVID WILLIAM SPAIN Sixth Respondent RODNEY NORMAN STONEBRIDGE Seventh Respondent REASONS FOR JUDGMENT – NEWTON D.C.J. Delivered the 8th day of September, 2000 [1] At a directions hearing on 4 August, 2000 this matter was listed on 28 August to enable the Court to consider whether relevant statutory and regulatory requirements had been complied with to confer jurisdiction on the Court to determine the request to change certain conditions of the approval granted on 26 May 1999. [2] The applicant, Interpacific Resorts (Australia) Pty Ltd, by application filed on 3 August, 2000 seeks to have changed certain conditions imposed by Order of this Court in Appeal No. 1094 of 1998. That application identified only the local government as a respondent. Subsequently, an amended application was filed on 23 August, 2000 in substantially the same terms as that filed on 3 August but identifying as respondents to the application all the parties nominated as such in Appeal No. 1094 of 1998. This amendment effectively deals with one of the points raised on 4 August in relation to the inclusion of all relevant parties in the current application to change conditions. -- 5 of 9 -- 6 Judgment ACF v GCCC [3] The remaining specific issues to be dealt with at this time are as follows:- (a) compliance with s 3.5.33 (3) of the Integrated Planning Act 1997 (IPA) which requires the consent of the owner of the land; (b) whether rule 8 (1) of the Planning and Environment Court Rules requires the joinder of other parties; and (c) whether it is necessary to give public notice of the application to change conditions. [4] As to (a), a request to change conditions must contain the owner’s consent if the person wanting to change the conditions is not the owner of the land to which the approval attaches (s 3.5.33 (3) of IPA). The term “owner” of the land is defined in Schedule 10 as meaning the person for the time being entitled to receive the rent for the land or would be entitled to receive the rent for it if it were let to a tenant at a rent. [5] The Department of Natural Resources, on behalf of the State of Queensland, has by document dated 8 August, 2000 consented to the application to change conditions. A State Tenure Search dated 21 August, 200 shows the Council of the City of Gold Coast as the registered lessee and that a sub lease has been granted to Runaway Bay Centre Pty Ltd. The latter is, I was informed by Counsel for the first respondent, a company closely associated with the applicant. In any event, the necessary consent of the owner has now been obtained and the request to change conditions contains that consent, thus fulfilling the requirements of s 3.5.33 (3) of IPA. -- 6 of 9 -- 7 Judgment ACF v GCCC [6] As to (b), rule 8 (1) of the Planning and Environment Court Rules 1999 provides that an originating process, other than for an appeal under IPA, must name as respondents the persons directly affected by the relief sought in it. The belated inclusion as parties to the present application of all those persons who were parties to the original appeal removes one area of concern. However, it is suggested by the seventh respondent, Mr Stonebridge, that there may be some persons or organisations that may be so affected by the proposed changes to conditions to require that they be joined. No specific person or organisation has been identified, although it is said that a neighbouring football club and some nearby child care centres may suffer economic consequences as a result of the changed conditions. [7] The appropriate test to apply in determining whether a party may be added to an existing action is: will that persons rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by an order which may be made in the action. (see PEGANG MINING CO LTD v CHOONG SAM [1969] 2 MLJ 52 at 55-56 per Lord Diplock, approved by the Full Court (General Division) of the Federal Court, Lockhart, vonDoussa and Sackville JJ in NEWS LIMITED AND OTHERS v AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED AND OTHERS (1996) 64 FCR 410 at 524-525) [8] In my opinion it is not possible to conclude that the unspecified persons or organisations alluded to by Mr Stonebridge will have their rights or liabilities affected -- 7 of 9 -- 8 Judgment ACF v GCCC by the orders sought in the application to change conditions. As Lord Diplock pointed out in PEGANG MINING, the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle that person to be added as a party. [9] The only persons whose rights may be affected by a variation of the conditions of approval are those who were parties to the appeal to this Court. They are now parties to the present proceedings. Rule 8 of the Planning and Environmental Court Rules 1999 does not set out a requirement for the conferral of jurisdiction on the Court; such requirements are contained within the Local Government (Planning and Environment) Act 1990. There is no warrant for reading the provisions of s 3.5.33 of IPA restrictively. I accept that the legislative provision as enacted shows a clear intention to create a broad power. [10] As to (c), it should be noted that the provisions of s 3.5.33 of IPA do not require the giving of public notice in order to confer jurisdiction on the Court to deal with an application to change conditions of an approval. Indeed, it would be surprising if such an obligation were to be found within the section because the entity (the local government) is required to decide the request for change within 20 business days after receiving the request. Although the Court is not required to decide a request for change within this (or any) time frame, no provision for the giving of public notice of such request to the Court is made by the section. -- 8 of 9 -- 9 Judgment ACF v GCCC [11] The circumstances in which public notice must be given have been comprehensively identified in IPA. To require this Court to reconsider the adequacy of the procedure set up by the legislation may well result in unnecessary uncertainty. (See HANNAY v BRISBANE CITY COUNCIL (1997) 94 LGERA 212). [12] I conclude, then, that all necessary statutory and regulatory requirements have now been fulfilled to confer jurisdiction on the Court to determine the request to change the conditions of the approval. -- 9 of 9 --