Sanctuary Cove Principal Body Corporate GTP 202 v Buttner [2025] QCAT 214

• [4] In this proceeding the relevant enabling Act is the Sanctuary Cove Resort Act 1985 (Qld) ('SCRA').
• [5] Section 104B of the SCRA provides:

104B Dealing with matter relating to development control by-law

(1) QCAT may deal with a matter relating to -

(a) the application of a development control by-law to a person mentioned in subsection (2)(b) or (c); or

(b) a contravention or alleged contravention of a development control by-law.

(2) Each of the following persons may apply to QCAT, as provided under the QCAT Act, to deal with a matter under subsection (1) if the person has standing to make the application -

(a) the principal body corporate;

(b) a subsidiary body corporate of the principal body corporate;

(c) a proprietor or occupier of, or a person having an estate or interest in, a lot in a residential zone.

(3) For subsection (2), a person has standing to make the application if the person is directly and materially affected by the matter to which the application relates.

_Example - _

A proprietor of a lot in a residential zone alleges the amenity of the lot has been, or will be, adversely affected by development authorised under a development control by-law in an adjoining residential zone.

104C Internal dispute resolution processes to be used before application

(1) This section applies to -

(a) a referee for deciding an application for an order under the Building Units and Group Titles Act 1980, part 5 relating to a dispute about a matter mentioned in section 104A; and

(b) QCAT in deciding an application about a matter mentioned in section 104B.

(2) The referee or QCAT must not decide the application unless the referee or QCAT is satisfied the applicant has made reasonable attempts to resolve the dispute or matter by using internal dispute resolution processes.

_Examples of internal dispute resolution processes - _

• the parties to a dispute communicating with each other
• the applicant writing to the executive committee for the principal body corporate
• the applicant causing a motion to be presented for consideration at a general meeting of the principal body corporate

• [7] Also relevant for present purposes is s 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'):
  1. Joining and removing parties

(1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that -

(a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or

(b) the person's interests may be affected by the proceeding; or

(c) for another reason, it is desirable that the person be joined as a party to the proceeding.

(2) The tribunal may order that a party be removed from a proceeding if the tribunal considers that -

(a) the party's interests are not, or are no longer, affected by the proceeding; or

(b) the party is not a proper or necessary party to the proceeding, whether or not the party was one originally.

(3) The tribunal may make an order under subsection (1) or (2) on the application of a person or on its own initiative.

• [8] For the reasons that follow, Mr Leslie's application to be joined as an applicant is refused.
• [9] Some background context is necessary to explain my decision. The respondents applied to the applicant for approval to carry out building works at their residence. In October 2021 and March 2022 the applicant approved the building works. In 2022 the respondents applied to the applicant for approval to construct a pontoon at their lot. In September 2022 the applicant approved the pontoon works. The respondents subsequently carried out the building works and the pontoon works.
• [10] Mr Leslie complained to the applicant that the building works and pontoon works carried out by the respondents did not comply with the relevant development approvals and conditions and certified approved plans and contravened the relevant development control by laws of the applicant. The applicant investigated the complaints. Some of the complaints were resolved. The remaining matters of dispute as between the applicant and the respondents are:

(a) The location and size of a guest bedroom window on the ground floor of the respondents' residence (which faces Mr Leslie's lot);

(b) The size of a vessel moored at the respondents' pontoon exceeds the load and length provided in the pontoon approval and conditions, and the pontoon plans, which extend beyond the boundaries of the respondents' lot and into the harbour; and the failure by the respondents to provide information relating to the vessel and to provide an engineering certificate in respect of the pontoon.

• [11] It is relevant to note the following passage from the applicant's originating application:

... Mr Leslie ... (has) informed the Applicant and its solicitors that Mr Leslie is genuinely concerned about the ... contraventions and non-compliances by the Respondents and the serious impact the same have on him and his amenity and privacy.

Mr Leslie has indicated that he supports the Application and wishes to be joined as a party to the Application and to have his views considered by the Tribunal.

It appears clear to the Applicant that there is a long history of antagonism between the Respondents and Mr Leslie.

Indeed, the Respondents have recently complained to the Applicant about certain alleged contraventions by Mr Leslie (which are not part of this Application).

In the circumstances, the Applicant is content for the Tribunal to make whatever directions and orders it considers appropriate to have Mr Leslie joined as a party to the Application.[1]

• [12] Mr Leslie says the following in support of his application to be joined as an applicant:

(a) Mr Leslie is the owner of the lot adjoining the respondents' lot;

(b) The applicant is agreeable to Mr Leslie's joinder as an applicant;

(c) Mr Leslie is directly impacted by the respondents' non-compliance and has been the 'driving force' behind the applicant commencing the proceeding;

(d) Mr Leslie sees no benefit in commencing separate proceedings against the respondents and it would be more efficient to have one proceeding;

(e) The addition of another necessary party will ensure that a just and fair resolution can be achieved;

(f) There is a probability that the parties may resolve the proceeding at a compulsory conference and Mr Leslie's attendance at the conference is desirable as the directly affected neighbour;

(g) The issues in the proceeding are limited and the addition of Mr Leslie as a party will not add to the complexity of the proceeding. Duplication of costs will also be avoided.

(a) The respondents oppose the joinder of Mr Leslie as an applicant;

(b) Mr Leslie seeks final orders in the proceeding mirroring those sought by the applicant;

(c) No orders are sought by either party, or by Mr Leslie, which would bind Mr Leslie;

(d) Mr Leslie will not benefit from the decision in the proceeding, nor will his interests be affected, for the following reasons:

(i) Mr Leslie has (without necessary approvals from the applicant) installed a screen on the boundary fence with the respondents' property obscuring the view from the window in the respondents' dwelling which is complained of. Mr Leslie has therefore taken steps to protect his privacy;

(ii) The pontoon is geographically so remote from Mr Leslie's lot that he could not be said to be materially affected by the pontoon;

(e) There is nothing Mr Leslie could add as a party that he could not add as a witness should the applicant call him to give evidence;

(f) Mr Leslie's involvement in the dispute has compounded and confused the issues contrary to his assertion that joining him as an applicant would ensure that a just and fair resolution can be achieved;

(g) Joining Mr Leslie would be likely to add cost and delay noting that Mr Leslie has many and varied complaints not justiciable in QCAT or that he may seek to reagitate notwithstanding the decision of the Supreme Court in Leslie v Buttner & Anor[2] (the Supreme Court proceedings);

(h) There is no good reason for Mr Leslie to be joined as an applicant.

• [14] Mr Leslie has replied to the respondents' submissions:

(a) Mr Leslie seeks enforcement orders in relation to the guest bedroom window and the pontoon consistent with the applicant's position;

(b) He wishes to 'seek similar enforcement orders in respect of compliance with condition 1 of the development approval';

(c) The screen erected by Mr Leslie on the dividing fence does not obscure the view from the guestroom window;

(d) Mr Leslie is not precluded from agitating in QCAT matters the subject of the Supreme Court proceedings relating to the height of terrace levels on the respondents' lot.

• [15] The applicant does not oppose Mr Leslie's joinder application.

• [16] Relevant to the determination of the joinder application is a consideration of the Supreme Court proceedings. Mr Leslie brought the Supreme Court proceedings against the applicant and the respondents seeking declarations and injunctions to stop building renovation works proposed to be undertaken by the respondents. Of relevance for present purposes is that part of the renovation works relating to raising the level of the rear terrace on the respondents' lot ('the terrace works'). The development approval for the renovation works was granted subject to the following condition:

"that the [first respondents] be permitted to raise the Rear Terrace Level to 350mm on the basis that the existing privacy of [the applicant] is maintained and that the [first respondents] and [applicant] must agree in writing to the neighbouring fence height or agreed planting to ensure the protection of amenity."[3]

In his points of claim, the applicant refers to the condition set out in [10] above as a condition precedent and asserts that the first respondents have not, and will not, satisfy that condition precedent because the applicant has not, and will not, give his agreement to any amenity measures for the proposed rear terrace to be constructed on Lot 98. In his cross-examination, the applicant stated his understanding that the agreement referred to in the condition had to be made before the commencement of any works could commence.

That position needs to be understood in light of attempts that were made by the second respondent to facilitate a meeting between the applicant and the first respondents to try and reach agreement on the amenity measures referred to in the condition.

On 7 September 2021, the second respondent invited the applicant to attend a meeting with the first respondents and the chairperson of the ARC to discuss the development application. No meeting occurred at that time.

On 21 October 2021, the second respondent again invited the applicant to attend a meeting to discuss the matters referred to in the condition set out in [10] above. The applicant declined to participate in that meeting on the basis that he wished to have the opportunity to review plans of the proposed redevelopment of Lot 98 and to consider the potential impacts on the amenity of Lot 18.

The inability of the first respondents to satisfy the condition concerning the raising of the level of the rear terrace does not render the whole of the development approval unlawful or of no effect.

Further, that condition should not be interpreted as preventing work being undertaken in circumstances where the applicant has acted unreasonably in refusing to agree to any amenity measures. The position the applicant has taken in his points of claim - that he has not agreed, and will not agree, to amenity measures - indicates that he will not give reasonable consideration to proposals that the first respondent might make concerning amenity measures. When that part of the points of claim was shown to him in cross-examination the applicant responded by saying that he had not really turned his mind to measures that would fulfil the condition because he believed that there were other major issues with the development application which had to be considered further. In my view, the applicant is withholding his agreement in an attempt to prevent the first respondents from undertaking any of the proposed works.

For those reasons, I do not consider that the failure or refusal of the applicant to agree to amenity measures in respect of the raising of the rear terrace level prevents the first respondents from undertaking work pursuant to the development approval.[4]

• [18] Mr Leslie, in the present proceeding, seeks to agitate further the issue of the terrace works. The terrace works do not form part of the issues in dispute between the applicant and the respondents.
• [19] It is apparent from the judgment of Cooper J that his Honour considered Mr Leslie to have acted unreasonably in his dealings with the respondents relating to the terrace works. It is of some concern that Mr Leslie's evidence was 'that there were other major issues with the development application which had to be considered further'. This tends to suggest a desire by Mr Leslie to agitate a much broader range of issues than those the subject of the present proceedings. The applicant says there is a long history of antagonism between the respondents and Mr Leslie. Again, this tends to suggest that, aside the terrace works, the issues in dispute between the respondents and Mr Leslie are not confined to those issues the subject of the present proceedings.
• [20] To permit Mr Leslie to be joined as an applicant would, in my view, result in a number of undesirable outcomes:

(a) The scope of the issues in dispute would be enlarged. It is not at all apparent from the material filed by Mr Leslie the breadth and complexity of the matters he seeks to agitate in respect of the terrace works;

(b) The relationship between Mr Leslie and the respondents may well contribute to the proceedings becoming unnecessarily prolonged and disputative;

(c) The result of the above would be an increase in the costs incurred by the parties and the duration of the proceeding would likely be extended.

• [21] Furthermore, the interests of the applicant and Mr Leslie in the proceeding are not necessarily aligned. Firstly, if joined as an applicant, Mr Leslie would seek to expand the scope of the issues in dispute to the terrace works in relation to which the applicant has no apparent interest. Secondly, the applicant has a statutory obligation to do all things reasonably necessary for the enforcement of the development control by laws.[5] Mr Leslie has no such statutory obligation to act reasonably.
• [22] To the extent that Mr Leslie seeks enforcement orders in relation to the guest bedroom window and the pontoon consistent with the applicant's position, it is not immediately apparent why joining Mr Leslie as an applicant is necessary. Certainly, it is open to the applicant to call Mr Leslie to give evidence. Nor is there any reason why Mr Leslie could not attend a compulsory conference. The procedure for a proceeding is at the discretion of the tribunal.[6] A compulsory conference may be conducted in the way decided by the person presiding over the conference.[7] It is a matter for the Tribunal to determine who may attend a compulsory conference and the extent to which a person may participate in the conference. If and when a compulsory conference is scheduled it will be open to the applicant to apply for a direction that Mr Leslie be permitted to attend at, and participate in, the conference.
• [23] I accept that Mr Leslie's interests may be affected by the proceeding. And it may be accepted that it would be desirable for Mr Leslie to be bound by or have the benefit of a decision of the tribunal in the proceeding. However, there are the countervailing considerations which I conclude are decisive. That is, the joinder of Mr Leslie will, perhaps considerably, expand the scope of the issues in dispute in the proceeding with the results to which I have referred. Added to this are the adverse findings made by Cooper J regarding Mr Leslie's conduct and the less than amicable relationship between Mr Leslie and the respondents which it seems to me are likely to impact upon the conduct of the proceeding if Mr Leslie is joined as an applicant.
• [24] Mr Leslie is of course at liberty to bring a separate proceeding against the respondents. If he does so, then directions may be made by the Tribunal to harmonise those proceedings with the present proceedings.
• [25] The application by Mr Leslie to be joined as an applicant is refused. I will make directions extending the time for the parties to file their statements of evidence.

[2] [2022] QSC 131.

[3] Ibid at [10]; reference to the first respondents is a reference to the respondents in this proceeding; reference to the applicant is a reference to Mr Leslie.

[5] Sanctuary Cove Resort Act 1985 (Qld), s 23(6).