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[2006] QCA 171
General information, not legal advice.
Court of Appeal (Qld)
2006-05-26
Williams and Keane JJA and White J Separate reasons for judgment of, each member of the Court, each concurring as to the orders made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Sushames & Ors v Pine Rivers SC & Ors [2006] QCA 171
PARTIES: STEPHEN SUSHAMES, SHARON SUSHAMES AND HILLMIR PTY LTD (TRADING AS J B GOODWIN MIDSON & PARTNERS) ACN 009 728 634 (appellant/first respondent) v PINE RIVERS SHIRE COUNCIL (respondent/second respondent) SONCOM PTY LTD ACN 108 029 634 (co-respondent/third respondent) CENNZEAL PTY LTD ACN 091 984 744 (applicant/applicant)
FILE NO/S: Appeal No 9408 of 2005 / DC No 107 of 2005
DIVISION: Court of Appeal
PROCEEDING: Application for Leave Integrated Planning Act
ORIGINATING COURT: Planning and Environment Court at Brisbane
DELIVERED ON: 26 May 2006
DELIVERED AT: Brisbane
HEARING DATE: 4 May 2006
JUDGES: Williams and Keane JJA and White J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER: 1. Application for leave to appeal allowed****2. Appeal dismissed****3. Cennzeal to pay the costs of the respondents to its application for leave to appeal and of the appeal to be assessed on the standard basis****4. Order 3 is subject to parties making submissions as to the reserved costs in accordance with the Practice Directions within seven days.
CATCHWORDS: ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS - QUEENSLAND - GENERALLY - where Soncom Pty Ltd applied to Pine Rivers SC for a development approval for land owned by Cennzeal - where Sushames and others appealed against Pine Rivers SC's decision to approve the application - where Cennzeal sought leave in P & E Court to be joined as a co-respondent to the Sushames appeal but leave was not granted - where Cennzeal now seeks leave to appeal to this Court against the decision of the P & E Court - where the Integrated Planning Act 1997 defines an "applicant" as including "the person in whom the benefit of the application vests" - whether Cennzeal is an "applicant" - whether leave to appeal should be granted and whether the appeal should be allowed / Integrated Planning Act 1997 (Qld), s 3.5.19, s 3.5.28, s 4.1.43, s 4.1.56, s 5.4.2 / Architects Dewar & Associates Pty Ltd v Redland Shire Council [1997] QPELR 144, cited / Condo Fisheries Pty Ltd & Anor v Council of the City of Gold Coast [2000] QPELR 5, cited / Ogle v Pine Rivers Shire Council & Ors [2005] QPELR 291, considered
COUNSEL: D J S Jackson QC for the applicant / B L Lillywhite (sol) for the first respondent / A N S Skoien for the second respondent / J J Haydon for the third respondent
SOLICITORS: John M O'Connor & Company for the applicant / MacDonnells for the first respondent / Pine Rivers Shire Council Legal Services Department for the second respondent / Wendy Hart for the third respondent
WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and I agree with all that is said therein. I would, however, emphasise the following matters which influenced me in concluding that the appeal should be dismissed.
Schedule 10 of the Integrated Planning Act 1997 ("the Act") provides separate definitions of "applicant" for purposes of Ch 3 and Ch 4 of the Act. For Ch 3, applicant means "the applicant for a development application". It was conceded by counsel for Cennzeal Pty Ltd that it was not an applicant for purposes of Ch 3.
The definition for purposes of Ch 4 operates so that the term applicant includes "the person in whom the benefit of the application vests". Cennzeal Pty Ltd suggested that the benefit of the application had vested in it because it was the owner of the land in question. Reference in that regard was made to s 3.5.28 of the Act which states that the "development approval attaches to the land, the subject of the application, and binds the owner, the owner's successors in title and any occupier of the land". But that cannot avail Cennzeal Pty Ltd because s 3.5.19 effectively provides that the development approval only has effect, if an appeal is made to the Planning and Environment Court, when the appeal is finally decided. When Cennzeal Pty Ltd claimed the benefit of the approval, that court had not finally decided the submitters' appeal and in consequence the approval had not attached to the land at the relevant time. Nothing in the Act vested the approval in Cennzeal Pty Ltd at any material time.
The difference in the definition of "applicant" recognises that the applicant for a development application may be someone other than the person who is ultimately to benefit from the granting of an approval; often such application is made by a town planner on behalf of a proposed developer. But when it comes to appeal proceedings it is the proposed developer who would ordinarily be the party in the proceedings. The benefit of the approval would vest in the proposed developer pursuant to some arrangement between the original applicant and the developer.
As Keane JA points out the Act is silent as to how the approval vests for purposes of Ch 4. If there is to be a vesting of the benefit of the approval then that must result from some transaction between the original applicant and the person in whom the benefit of the approval vests. Here Cennzeal Pty Ltd cannot point to any transaction supporting the vesting of the approval in it, and there is no other legal basis for concluding that there has been such a vesting.
I agree with the orders proposed by Keane JA.
KEANE JA: On 17 May 2004, Soncom Pty Ltd ("Soncom") applied to the Pine Rivers Shire Council ("the Council") for a development approval for a material change of use of land at Laceys Creek Road, Dayboro, for a child care centre. The application was made with the written consent of the registered owner of the land, Cennzeal Pty Ltd ("Cennzeal"). On the following day, Soncom entered into a contract with Cennzeal to buy the land the subject of the development application. The Council approved the development application, and issued a decision notice in that regard on 3 November 2004. Stephen Sushames, Sharon Sushames and Hillmir Pty Ltd ("the submitters") filed an appeal against that decision to the Planning and Environment Court ("the P & E Court") on 13 January 2005.
The decision at first instance
Section 4.1.43(3) of the IPA provides that if an appeal to the P & E Court is started by a submitter, "the applicant is a co-respondent for the appeal". In this context, "the applicant" for a development application mentioned in Ch 4 of the IPA is the applicant as defined by virtue of s 1.3.1 and Sch 10 of the IPA as including "the person in whom the benefit of the application vests".
The P & E Court held that in this case Cennzeal cannot be regarded as a person in whom the benefit of the application made by Soncom vests. In this regard, Rackemann DCJ noted that:2
"It was not the original named applicant. The application was not made on its behalf. It had no role in the application process before the Council and is not a party to any agreement or arrangement which purports to vest the benefit of the application in Cennzeal. It is simply an owner who gave written consent to Soncom, to make a development application."
Discussion
I should say immediately that, in my respectful opinion, these observations by Rackemann DCJ are clearly correct. They are also decisive of this application. As I have said, the application is put on the basis that the P & E Court erred in holding that Cennzeal was not "the applicant" for the purposes of s 4.1.43(3) of the IPA.
It is to be emphasised that the processes of assessment of a development application, the right of appeal to the P & E Court, and the appeal process are all creatures of the IPA.3 The statutory provisions relating to development applications and appeals confer no right of appeal to the P & E Court upon the owner of land as such. Further, these provisions do not envisage any relevant role for an owner of land as co-respondent for an appeal to the P & E Court.
It should also be emphasised that an application for a development approval contemplated by the IPA is one coherent proposal, which is put forward as such and is to be assessed as such. That application is, necessarily, directed by an applicant. When the IPA speaks of "the applicant" as "the person in whom the benefit of the application vests", it is referring to the person or group who, at the time of the appeal, is exclusively entitled to control the application as the person with the beneficial interest in the application for the development permit. Importantly, the provisions of the IPA do not envisage a multiplicity of such "applicants" at any one time. The IPA does not envisage that an application to be assessed may be advanced or modified or withdrawn by several divergent voices. That situation would be intolerable for an assessment manager.
Of course, an "applicant" may be a group, comprised of more than one person, that has joined together to make the application with one voice (if that group is exclusively entitled to the beneficial interest in the application for the development permit), and the identity of an "applicant" may change from time to time as a result of the benefit of the application being vested in a person other than the person originally named as the applicant (which I discuss further below). This case is not, however, an example of either of these situations.
The IPA does not provide any mechanism for the substitution of a person in place of the applicant on the face of the original application. The IPA does not expressly concern itself in any way with processes whereby the benefit of an application may vest in a person who becomes the applicant as a result of that vesting. The IPA thus envisages that the vesting of the benefit of an application may occur as a result of dealings between persons outside the processes of the IPA. It is to the general law rather than to the provisions of the IPA that one must look to determine whether, as between the person identified in the application as "the applicant" and some other person, the latter is to be regarded as enjoying the benefit of the application.
Conclusion and orders
I am of the opinion that the decision of the P & E Court is plainly correct. Because the issue which has been agitated is a question of law of some importance, I would allow Cennzeal's application for leave to appeal. I would, however, dismiss the appeal.
Cennzeal should pay the costs of the respondents to its application for leave to appeal and of the appeal to be assessed on the standard basis.
WHITE J: I have read the reasons for decision of Keane JA and agree with his Honour that the application for leave to appeal the decision of the Planning and Environment Court is of importance and leave ought to be given.
I agree with his Honour that the analysis of Rackemann DCJ about who is an applicant at the different stages of obtaining a development approval for material change of use pursuant to the Integrated Planning Act 1997 (Qld) is plainly correct and the appeal should be dismissed with costs.
I agree with the additional observations of Williams JA.
See s 4.1.50(2) of the Integrated Planning Act 1997 (Qld). ↩
Sushames & Ors v Pine Rivers Shire Council & Anor [2005] QPEC 96 at [17]. ↩
Cf Architects Dewar & Associates Pty Ltd v Redland Shire Council [1997] QPELR 144 at 145; Condo Fisheries Pty Ltd & Anor v Council of the City of Gold Coast [2000] QPELR 5. ↩
Cf s 3.2.1(3), s 3.5.22(1), s 3.5.22(3), s 3.5.24(2), s 3.5.26(1), s 3.5.28(1) and s 3.5.33(3) of the IPA. ↩
[2005] QPELR 291. ↩
[2005] QPELR 291 at 296 - 297 [16] - [20]. ↩
Sushames & Ors
Pine Rivers Shire Council & Ors [2006] QCA 171
On 28 January 2005, the contract of sale between Cennzeal and Soncom was terminated. Thereafter, Soncom did not wish to contest the appeal, and was prepared to consent to an order by the P & E Court allowing the submitters' appeal. As a result, Cennzeal wished to resist the submitters' appeal, and, on 16 May 2005, applied to the P & E Court to be joined as a co-respondent to the submitters' appeal. On 29 September 2005, Cennzeal's application was refused. The submitters' appeal was allowed by reason of the failure by Soncom to contest the appeal.1
Cennzeal now seeks leave, pursuant to s 4.1.56 of the Integrated Planning Act 1997 (Qld) ("the IPA"), to appeal to this Court against the decision of the P & E Court. Cennzeal seeks to argue that the P & E Court erred in holding that Cennzeal was not an "applicant" for the purposes of s 4.1.43 of the IPA, and that, in consequence, it also erred in proceeding to determine the submitters' appeal without giving Cennzeal an opportunity to be heard in opposition to the submitters' appeal.
Because the principal question which Cennzeal wishes to agitate is one of law, it is convenient to turn immediately to that question.
There is nothing in the evidence in this case to suggest by reference to the general law that Soncom was acting as Cennzeal's agent in making its development application to the Council; and there was no provision of the contract between Soncom and Cennzeal to the effect that Soncom agreed to exercise its rights as applicant on behalf of, or at the direction of, Cennzeal. Nor is there any provision of the contract whereby Soncom has agreed to allow Cennzeal to take its place as the applicant.
Cennzeal pointed out that the IPA does confer "rights" upon the owner of land the subject of a development application or a development approval.4 That is true, particularly in relation to what might be described as a "right" to veto an application, and the right to the benefit of an approval; but the circumstance that the IPA expressly confers on an owner of land specific rights, which affect the process of assessment of a development application, or state the consequences of a successful application, merely serves to highlight that those rights do not include the right of appeal or rights to participate in the appeal process, these rights being peculiar to "the applicant".
Cennzeal relied, in particular, on s 3.5.28(1) of the IPA; which provides that a "development approval attaches to the land, the subject of the application, and binds the owner, the owner's successors in title and any occupier of the land". It may be accepted that Cennzeal, as the registered owner of the land will be the beneficiary of any approval obtained by Soncom, and that, as a result, it has an interest in preserving the approval. But these considerations do not lead to the conclusion that Cennzeal is the person in whom the benefit of the development application now vests.
Cennzeal sought to argue that s 3.5.28(1) must be taken to include the benefit of a successful application as part of what is involved in attaching the "development approval" to the land. There are three reasons for rejecting this argument. First, "development application" and "development approval" are different concepts within the IPA. There is no indication in the definition of either of these concepts that a development approval encompasses, retrospectively, the application which has led to the approval.
Secondly, in the context of s 3.5.28(1), reference to a development approval is clearly a reference to a development approval which is an effective development approval, ie the final outcome of the assessment and appeal process. By virtue of s 3.5.19(1)(c) of the IPA, the effect of the commencement of the submitter's appeal is to prevent the development approval taking effect until the appeal is determined. Cennzeal's argument on this point illogically assumes in Cennzeal's favour a favourable outcome of the appeal to the P & E Court when the very question in issue is whether Cennzeal has any standing to argue that there should be an outcome favourable to it.
Thirdly, Cennzeal's argument focussed upon the circumstance that, in Sch 10 of the IPA, the term "applicant" is defined for Ch 3, as meaning "the applicant for a development application", and emphasised that this definition is separate from the definition of the term "applicant for a development application in Chapter 4". Cennzeal argued that a development application in Ch 4 includes an approval, if any, given in respect of the application made under Ch 3.
It may readily be accepted that the concept of an applicant for the purposes of Ch 4 of the IPA may include, from time to time, a person other than the original applicant for a development application under Ch 3. The case where a development application is initiated by a town planner on behalf of a client, but pursued on appeal by the client is an obvious example. But the statute does not expressly provide that a land owner who may ultimately have the benefit of an approval is, ipso facto, a person in whom the benefit of the application vests. Moreover, the statute does not suggest that such a land owner becomes "the person" in whom the benefit of the application vests to the exclusion of the original applicant. As I have noted, the IPA does not expressly concern itself at all with how such a vesting may occur. In the absence of any express indication that the IPA is at all concerned with how such a vesting might be effected, it would be surprising if a provision of the statute impliedly effected such a vesting. It would be all the more surprising because such a result would also involve an implied divesting of the benefit of the application from an applicant who, on this understanding, has not consented to that divesting.
The present case stands in marked contrast to Ogle v Pine Rivers Shire Council & Ors5 upon which Cennzeal seeks to rely. In that case, the purchaser of land from a mortgagee of an owner of land who was an applicant for a development approval asserted a claim to be regarded as "the applicant for the development approval" on the basis that it was the person in whom the benefit of the application vested. In that case, the mortgage had charged and assigned to the mortgagee the development application. This provision in the mortgage, and the sale by the mortgagee to the purchaser was treated by the P & E Court in that case as a basis for holding that the benefit of the application vested in the purchaser.6 Whether or not that view was correct, it is clear that, in the present case, there is no similar basis on which it might be said that Cennzeal is entitled, as between it and Soncom, to the benefit of the application made by Soncom.
It may be noted that, on the hearing in this Court, Soncom advanced a number of criticisms of the decision in Ogle v Pine Rivers Shire Council. It is not necessary, for the disposition of this case, to deal finally with these criticisms. It is sufficient to say that Ogle v Pine Rivers Shire Council is distinguishable from the present case on the basis that, in that case, the terms of the mortgage and the sale were held to justify the conclusion that the benefit of the application had vested in the purchaser. It may also be noted that, to the extent that the decision in Ogle v Pine Rivers Shire Council supports the view that more than one person or group may have divergent roles in the running of an application at any one time, that view is questionable for the reasons stated above.
It is not necessary, for the purpose of determining this application, for this Court to reach a definitive understanding of what is involved in the vesting of the benefit of a development application. It is sufficient to dispose of this application to say that, in this case, there is no arguable basis on which it can be said that the benefit of Soncom's development application vested in Cennzeal. There is simply no basis on which it can be said that Cennzeal has displaced Soncom as the applicant in relation to that development application so as to control the fate of the application.