Condo Fisheries Pty Ltd & Anor v Gold Coast City Council [1999] QPEC 32

IN THE PLANNING & ENVIRONMENT COURT HELD AT SOUTHPORT P & E APPEAL NO: 762 of 1998 QUEENSLAND Before Newton D.C.J. [RE: CONDO FISHERIES PTY LTD & ANOR - V - THE COUNCIL OF THE CITY OF GOLD COAST] BETWEEN: CONDO FISHERIES PTY LTD AND MR R S J WORTS Appellants AND: THE COUNCIL OF THE CITY OF GOLD COAST Respondent REASONS FOR JUDGMENT Judgment delivered: 30 July 1999 Catchwords: Rezoning and development application – whether name of original applicant may be deleted – whether owners of the site may be substituted for applicant – whether time for filing notice of election may thereafter be extended. -- 1 of 10 -- Counsel: Mr R S Litster for the Appellant Mr R Livingstone-Ward (Solicitor) for the Respondent Mr M J Burnett for the Co-Respondent Solicitor: Deacons Graham & James for the Appellant King & Co for the Respondent Hickeys Lawyers for the Co-Respondent Hearing Date: 9 June 1999 -- 2 of 10 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT SOUTHPORT QUEENSLAND P & E APPEAL NO: 762 of 1998 Before Newton DCJ BETWEEN: CONDO FISHERIES PTY LTD AND MR R S J WORTS Appellants AND: THE COUNCIL OF THE CITY OF GOLD COAST Respondent REASONS FOR JUDGMENT – NEWTON DCJ (Delivered the Thirtieth day of July 1999) Blackedged Pty Ltd, Raydor Pty Limited and Eamon Pty Limited (the owners) are the registered proprietors of a site known as “The Grand Hotel site” (the site). The site is situated at the intersection of Marine Parade, Frank Street and Labrador Street, Labrador. The owners of the site entered into a conditional contract for the sale of the site and construction thereon to a member of the Sunland Group (Sunland) in or about March or April, 1998. Sunland duly made a development application to the Gold Coast City Council. The owners granted their consent to Sunland’s development application. On 31 July, 1998 the respondent Council wrote to Sunland informing it that approval of the application had been granted. -- 3 of 10 -- 2 On 8 September 1998 the appellants, Condo Fisheries Pty Ltd and Mr R S J Worts, appealed against the decision of the respondent Council to amend the planning scheme to rezone the land which constitutes the site. The Notice of Appeal was served upon Sunland. It was not endorsed in terms of Section 7.1(4) of the Local Government (Planning and Environment) Act 1990 in that it failed to include a statement that the person on whom the notice is served may elect within fourteen days after the date notice is served to become a respondent to the appeal. Little seems to turn upon this oversight. The owners by their solicitors became aware of the appeal on 28 October, 1998. The owners now seek an order that the rezoning and development application of Sunland be amended by deleting the name of the applicant “Sunland Group Limited” and inserting instead “Blackedged Pty Ltd, Raydor Pty Limited and Eamon Pty Limited” and that the time for filing of a Notice of Election on behalf of those companies be extended to 18 December, 1998. It is submitted on behalf of the owners that in making the application Sunland acted as their agent. It is contended that the owners position as applicant was protected by the operation of the original sale and construction agreements. In particular, the owners rely upon Clause 1.7 of the Sale Agreement and Clause 7.1 of the construction agreement. Clause 1.7 of the Sale Agreement provides as follows: “1.7 If the contract is terminated under this Clause 1 or if the purchaser does not complete this contract for any reason other than default of the vendor, the purchaser shall within two (2) business days of request by the vendor deliver to the vendor all drawings, files, reports, applications, feasibilities, models, diagrams, marketing materials, copies of sales options, consultants reports, valuations and any other information or property connected with the development proposal. The purchaser shall also transfer title in the -- 4 of 10 -- 3 same to the vendor (subject to any copyright constraints in favour of the author of any of the aforesaid). Clause 7.1 of the construction agreement between the owners and Sunland provided as follows: “7.1 The vendor shall, prior to the commencement of the vendor’s works, at its cost obtain and keep current all necessary approvals and permits from the consent authority and any government agency necessary or (in the reasonable opinion of the builder) desirable to enable any of the vendor’s works to be lawfully carried out. The purchaser shall, where necessary, upon the written request of the vendor, endorse its consent to any lawful application by the vendor for any such approval or permit. The vendor shall produce to the builder complete copies of all such approvals and permits immediately upon the same being obtained.” It is these provisions of the original sale and construction agreements between the owners and Sunland that are said to protect the owner’s position as applicant by recognising the position of Sunland as agent for the owners with respect to the rezoning and redevelopment applications. It should be noted that neither the contract for sale or the contract for construction provide that the applications by Sunland were made as agent for the owners. Paragraph 1.3 of the former provides that the vendor consents to the purchaser making the development application and also consents to the erection on the site of any notice required in connection with the development application. The vendor also agrees to provide promptly on request by the purchaser (Sunland) at the purchaser’s expense a written consent as the owner of the land to the development application in the form -- 5 of 10 -- 4 required by the Council. It is, in my opinion, difficult to see why consent was necessary if the purchaser was acting as agent for the vendor (owners). Paragraph 1.4 of the sale contract requires the purchaser to apply for and diligently pursue the development application. The purchaser is also required upon request from time to time by the vendor to keep the vendor reasonably informed about the development application and the purchaser’s dealings with Council. There is no evidence before me of any such requests having been made of the purchaser. Indeed, counsel for owners conceded that his clients were unaware that the purchaser had decided not to proceed with the development application at the time this was indicated to the Council. Paragraph 1.5 provides that the purchaser will not withdraw the development application without the prior written consent of the vendor. The purchaser may vary the application with the vendor’s consent and the vendor may not unreasonably withhold the consent to any request to withdraw or vary the application. These provisions seem quite inconsistent with the creation of an agency. With respect to the provisions of paragraph 1.7 there is no evidence that the vendor made any request of the purchaser for delivery of any material connected with the development proposal upon termination of the contract. Again, this paragraph does not support the creation of agency because there would be no need for such provisions if agency existed. Section 7.1(6) of the Act provides that a person electing to be a respondent is to file in the Court a Notice of Election, as prescribed by the Rules of Court, within fourteen days after the date notice is served or such longer period as the Court may allow where sufficient -- 6 of 10 -- 5 cause is shown for an extension. It is contended on behalf of the owners that matters supporting the exercise of discretion in support of the application are: (a) the owners (by their agent, Sunland) had no notice of the limitation applying as required by the Act; (b) that upon the owners becoming aware, they quickly gave notice of their interest although they were only outside the notional election date by days (as it could be argued to apply to them); (c) the applicants by their solicitors have only recently adopted the position now assumed in contesting the application. It follows that no prejudice arises or can be demonstrated; and (d) the owners wish to pursue the application. Accordingly, to disallow this application would result in needless public expense involved in resubmitting to Council a fresh application in circumstances where there has been no material change. The question of the meaning to be given to the word “applicant” has been the subject of judicial consideration. In Bower and Ors v. Brisbane City Council and Ors 1990 QPLR 127 an appeal was brought by objectors to a rezoning application which had been made and signed by the developer’s architect as agent for the developer. The appellants duly served the agent with notice of the appeal and of his right to elect to become a respondent to the appeal. A Notice of Election in the name of the developer was duly filed in the Court within the -- 7 of 10 -- 6 statutory period. Application was made to the Court by the agent seeking an order that the time be extended to permit him to elect to become a respondent to the appeal. Row DCJ held that at all times the material established that the architect was acting as agent for the developer. His Honour held that as a matter of construction the ordinary meaning of the word “applicant” should be used. At p.128 His Honour stated: “The justice of the matter requires that the time should be extended. Applying the ordinary meaning of the word applicant as being one who makes an application or who applies, I am satisfied that within the provisions of the legislation [the architect] was an applicant. Whilst the ordinary principles of agency may establish that another person also is an applicant, that fact in itself, in my view, does not preclude [the architect] from being an applicant within the relevant provisions and having consequential rights in relation to becoming a party to the appeal.” Section 4.15(1) of the Act provides that an application may be made to a local government seeking the modification of – (a) an application to which this section applies; or (b) an approval to which this section applies; or (c) a condition to which this section applies. Section 4.15(5) of the Act provides that: “An application to modify made under subsection (1) is to – (a)(i) if it seeks the modification of an approval or a condition attaching to an approval – be made by the person in whom the benefit of the approval vests for the time being or such other person as may be duly authorised in writing to make the application by the person in whom the benefit exists; (ii) if it seeks the modification of an application – be made by the person who made the application; . . . -- 8 of 10 -- 7 No source of power has been identified as that for the proposition that the applicants (the owners) be substituted for Sunland. Counsel for the appellants correctly submits that the Local Government (Planning and Environment) Act 1990 is a code. The Act allows for applications to be made by applicants. It provides for appeal rights by objectors and applicants and it provides for the parties to those appeals to be the applicant, the respondent Council and the objectors. The Act recognises only the need for consent of a land owner, and even if the contract had not provided for consent, the consent was required to be delivered as part of the application by Section 4.1(2)(d). Numerous cases were identified by Counsel for the appellant where the Court has been able in the circumstances of the particular case to identify the real applicant even where that entity had not made the application itself. See Dorrstein and Brisbane City Council 14 LGRA 97; Graham-Hall Constructions Pty Ltd v. Brisbane City Council 28 LGRA 101; Young and Anor v. Council of the City of Gold Coast and Anor [1996] QPELR 399 and Grimley Pty Ltd v. Gold Coast City Council and Villaworld Limited [1994] QPLR 252. However, it appears that there have been no cases where documents extraneous to the application and correspondence relating thereto have been relied on to support the proposition that there was agency or that an entity was acting on behalf of another party. In the instant case Counsel for the applicant owners has been unable to identify any material disclosing his client’s interests at some relevant point in the correspondence relating to the appeal. Furthermore, the circumstances in the instant case do not in my view give rise to any agency as between the owners and Sunland. I am unable to discern how anybody in the public arena, including the respondent Council, could ever have known that the owners would wish to stand in and substitute for Sunland. Furthermore, I -- 9 of 10 -- 8 can find no provision in the Local Government (Planning and Environment) Act 1990 which would permit such substitution. Perhaps at some time prior to the respondent Council deciding the application, or even after that time, Sunland might have been able to seek approval of the Council to substitute the names of the owners as applicants under Section 4.15 of the Act. However, no such application was ever made and the contractual provisions as existed between the owners and Sunland made no provision for such a procedure to occur. In my view, the provisions of Section 4.15(5) of the Act do not provide for the particular relief being sought by the owners. The application must be refused. -- 10 of 10 --