In Brief

The case of Mirvac Pacific Pty Ltd v Gold Coast City Council [2017] QPEC 39 involved an application by the Gold Coast City Council to the Planning and Environment Court to join Queensland Rail Pty Ltd as party to an appeal, under rule 69(1)(b) of the Uniform Civil Procedure Rules 1999 (UCPR). 
 
The Applicant had commenced an appeal against the Council's deemed refusal of a request to change a development permit for reconfiguring of a lot to facilitate the residential subdivision of land located at Gainsborough Drive, Pimpama.
 
The land was located to the east of a railway line corridor. The Council contended that it was in the interests of orderly planning to provide convenient vehicular, cyclist and pedestrian access across the corridor. A bridge in the area, subject to some improvements, could facilitate such access. Condition 5A of the development approval required the bridge to be upgraded, if not replaced, and roadworks to be conducted to and from the bridge.
 
The bridge was built on Crown land leased by Queensland Rail. The Applicant made a request to change the development approval such that condition 5A be deleted. The request was not decided within the prescribed time and the Applicant appealed against a deemed refusal of the application. Council sought to join Queensland Rail as a respondent to the appeal. Queensland Rail opposed the application on the basis that it was not desirable, just and convenient for it to be joined to the appeal. 
 
The Applicant sought to have condition 5A deleted because it could not be complied with due to circumstances beyond the Applicant's control, in particular that Queensland Rail's approval was required to do the works as railway manager under section 255 of the Transport Infrastructure Act 1994 (TIA). The Applicant referred to an email from Queensland Rail as evidence of Queensland Rail requirement that the Council accept ownership and responsibility for the future maintenance of the bridge, however the Council would not agree to accepting ownership and responsibility for the bridge.
 
The onus was on the Council to demonstrate that under rule 69(1)(b) of the UCPR, Queensland Rail's presence before the Court:
  • was necessary to enable the Court to adjudicate effectually and completely on all matters in dispute in the proceedings; or
  • was desirable, just and convenient to enable the Court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.

The Court found that it was difficult to establish impossibility of compliance where Queensland Rail's approval had not formally been sought

The Court noted the difficulty in establishing the practical impossibility of compliance where the Applicant had not gone through the formal process of seeking Queensland Rail's approval for access to the railway corridor. The Court observed that this process would involve an application under section 255 of the TIA, and would be required to be assessed on the merits at the time. The Court found that the email from Queensland Rail that the Applicant sought to rely on was, at best, a preliminary view of how the approval process would be determined but could not lawfully fetter the discretion to be exercised in making the decision. Further, any decision could be subject to an internal review and an external appeal. As such, the Court could not be satisfied that there was an impossibility of compliance where that process had not yet occurred. 
 
The Court determined if the Appellant wished to argue that compliance should be judged as being not reasonably possible, it would need to establish the evidentiary basis for that finding which would involve a factual inquiry into Queensland Rail's position. Even so, the Court found that it did not follow that Queensland Rail's joinder as a party was necessary or desirable, just and convenient within the meaning of rule 69 of the UCPR.

The Court found that it was outside the Court's jurisdiction to order Queensland Rail to undertake action in respect of the bridge, or to resolve any dispute between the parties as to the performance of the works under the development application.

The Court noted that it was not within the Court's jurisdiction to order Queensland Rail to give approval under the TIA or to order Queensland Rail to give an approval rendering Queensland Rail responsible for the ongoing ownership and maintenance of the upgraded bridge.
 
The Council argued that if Queensland Rail were made a party to the proceedings, then the Court could order Queensland Rail to participate in a mediation with the view to resolving the dispute as to future ownership and responsibility for maintenance of the bridge. Although the parties could be ordered to participate in alternative dispute resolution process with a view to possible resolution, the Court noted that it was outside the Court's jurisdiction to force the parties to resolve any dispute as to the ownership of and the responsibility for the maintenance of the bridge.
 
The Court further determined that the presence of Queensland Rail as a party to the proceedings was not necessary, desirable, just or convenient for the Court to decide the importance of the access link for the orderly development of the locality or to adjudicate upon the transport issues otherwise. 
 
The Court found that there was no reasonable basis upon which to exercise the discretion under rule 69(1)(b) of the UCPR to join Queensland Rail as a party to the proceedings and dismissed the application. The Court then heard the parties as to costs.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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