In brief

The case of JPJ Development v Brisbane City Council [2019] QPEC 13 concerned a joinder application to the Planning and Environment Court by a landowner (Adjoining Landowner) who is a neighbour of land which had the benefit of a development approval that had lapsed.

The Adjoining Landowner sought an order under rule 69(1)(b) of the Uniform Civil Procedure Rules 1999 (UCPR) that it be joined as a party to an originating application which sought to extend the currency period of the lapsed development approval until July 2020.

The Court found that the Adjoining Landowner had no statutory right to be joined as a party to the originating application, and had no standing to make allegations in respect to the lapsed development approval. The Court rejected the relief sought and dismissed the application for joinder.

Background

A development application for a development permit for reconfiguring a lot and an access easement was lodged in 2009 over land located in Kenmore, Brisbane. The development application was approved on 22 October 2009.

The landowner at the time (Previous Landowner) made numerous requests to extend the currency period of the development approval. The Brisbane City Council (Council) approved the extension of the development approval's currency period on two occasions, namely in 2014 and 2016. The Court additionally approved permissible changes to the development approval and various operational works development approvals. 

With respect to the Court's approval of the permissible change applications, the Court found the changes did not cause a person to make a properly made submission under section 367 of the Sustainable Planning Act 2009 (SPA). 

Most recently, the currency period was extended in 2016 but lapsed on 19 July 2018. The Previous Landowner sold the land subject to the development approval to a developer in 2017. The developer filed an originating application to the Planning and Environment Court on 3 December 2018 seeking orders under section 37 of the Planning and Environment Court Act 2016 (PEC Act) to excuse the Previous Landowner's failure to comply with the conditions of the development approval and to extend the currency period of the development approval until July 2020. The Adjoining Landowner sought to be joined as a party to the originating application filed by the developer. 

Adjoining Landowner's submissions

The Adjoining Landowner made the following submissions:

  1. under rule 69(1)(b) of the UCPR, it is "desirable, just and convenient" that it be heard in respect of the originating application to extend the currency period;

  2. the developer had breached the conditions of the development approval;

  3. the Court ought to grant the relief sought by the Adjoining Landowner.

Issues 

The Court considered the following three issues:

  1. whether rule 69(1)(b) of the UCPR grants a statutory right to the Adjoining Landowner to be a party to the originating application;

  2. whether the Adjoining Landowner has standing to make allegations with respect to breaches of the conditions of the development approval;

  3. whether the Court has jurisdiction under section 37 of the PEC Act to grant relief to the Adjoining Landowner.

No statutory right to include the Adjoining Landowner as a party to the originating application

The Adjoining Landowner submitted that rule 69(1)(b) of the UCPR permitted it to be joined as a party to the originating application. Rule 69(1)(b) of the UCPR relevantly provides:

"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".

The Adjoining Landowner argued that it would be "desirable, just and convenient" for it to be heard in respect of the originating application as it would have made a properly made submission objecting to the changes to the development approval and would have sought emergency access over the land for its own benefit. 

The Court found the Adjoining Landowner had no statutory right under rule 69(1)(b) of the UCPR to be a party to the originating application, as the Court had already decided that no third party was entitled to make a properly made submission under section 367 of the SPA (in consideration of the previous permissible change applications). The Court found the permissible change applications were a matter already judged and there was no basis on which the Adjoining Landowner had a right to invoke both rule 69 of the UCPR and section 367 of the SPA. 

The Adjoining Landowner had no standing to take issue with the alleged breach of the development approval 

The Court found the Adjoining Landowner had no right to be heard by the Court in order to make allegations concerning a breach of the conditions of the development approval. The Court concluded the allegations would be better addressed by way of a proceeding for an enforcement order or an interim enforcement order.

The Court refused to grant the relief sought by the Adjoining Landowner

The Adjoining Landowner submitted that the Court ought to use a broad discretion under section 37 of the PEC Act to grant it third party rights. Section 37 of the PEC Act relevantly provides: 

"(1) If the P&E Court finds there has been noncompliance with a provision of this Act or an enabling Act, the court may deal with the matter in the way it considers appropriate. 

(2) Without limiting subsection (1) and to remove any doubt, it is declared that subsection (1)—

(a) applies for a development approval that has lapsed, or a development application that has lapsed or has not been properly made under the Planning Act; and

(b) is not limited to—

(i) circumstances in relation to a current P&E Court proceeding; or

(ii) provisions under which there is a positive obligation to take particular action".

The Court held the proper exercise of the jurisdiction to grant relief sought by the Adjoining Landowner "requires a balancing of the rules of natural justice with the statutory intention in the relevant legislative regimes"(at [7]). The Court found, subject to section 37 of the PEC Act, any consideration of the interest of third parties is a matter for the Court in exercising its discretion and not a matter for submission by third parties. The Court subsequently declined to grant the relief sought by the Adjoining Landowner. 

Conclusion

The Court dismissed the Adjoining Landowner's application to be joined as a party to the originating application.

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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