Ice Skating Association of Queensland Inc v Brisbane City Council

[2005] QPEC 66

[2005] QPEC 066

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

Appeal No 93 of 2005

THE ICE SKATING ASSOCIATION OF
QUEENSLAND INC  Appellant

and

BRISBANE CITY COUNCIL  Respondent

and

TURRISI PROPERTIES PTY LTD
ACN 093 912 746  Co-Respondent

and

C E & P J BRINKWORTH                Co-Respondent by Election

and

McKINION PTY LTD  Co-Respondent by Election

BRISBANE

..DATE 19/07/2005

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.5.28(1),
s 4.1.41(1)(b), s 4.1.43(3), s 4.1.55, Sch 10 (definition of "applicant") - longer time allowed for new owner of development site to elect to be a co-respondent in an adverse submitter appeal brought against the Council's approval of a development application given when the site was in different ownership.

HIS HONOUR:  The Court makes orders in terms of paragraphs 1 and 2 of the application of the co-respondent, McKinion Pty Ltd filed on the 13th July 2005.  Those paragraphs seek:

1. An order permitting McKinion Pty Ltd to become a co-respondent to the appeal by way of filing an election to co-respond with the Planning & Environment Court of Queensland.

1. An order to extend time to file McKinion Pty Ltd's election to co-respond to the appellant's notice of appeal to 3 June 2005.

The applicant has filed a notice of its election to correspond to the appeal on the 3rd June 2005 but accepts that given the history of the matter, it has done so late. Under section 4.1.55 of the Integrated Planning Act 1997, the Court may allow a longer time to take an action if satisfied there are sufficient grounds for granting the extension.

The history of the matter is conveniently set out in Mrs King's affidavit and helpfully summarised in paragraph 4 of the written submissions she supplied to the Court today as follows:

4.1     The Co-Respondent, Turrisi Properties Pty Ltd submitted a development application with the respondent on 23 December 2003 (Application) for a preliminary approval (for carrying out building works) and development permits for the following development:

(a)  Material change of use, and

(b)  Reconfiguration of a lot.

4.2  The site being the subject of the application is 2316 Sandgate Road, Boondall and more particularly described as Lot 1 on RP 144626 on title reference 15391103 (Property).

4.3  At the time the application was made the co-respondents, Clare Evelyn Brinkworth and Peter Joseph Brinkworth were the registered proprietors of the property.

4.4  The Co-respondent, Turrisi Properties Pty Ltd initially made the application as it intended to purchase the property from the co-respondents, Clare Evelyn Brinkworth and Peter Joseph Brinkworth, at a later date.

4.5  On 12 November 2004 the respondent made its decision to approve the application made by the co-respondent, Turrisi Properties Pty Ltd subject to conditions (Approval).

4.6  On 12 January 2005 the appellant served upon the co-respondents its notice of appeal.

4.7  The Co-respondent, Turrisi Properties Pty Ltd filed an entry of appearance on 25 January 2005.

4.8  After 25 January 2005, the co-respondent Turrisi Properties Pty Ltd communicated to the co-respondents, Clare Evelyn Brinkworth and Peter Joseph Brinkworth, that it no longer wished to proceed in purchasing the property.

4.9  The co-respondents, Clare Evelyn Brinkworth and Peter Joseph Brinkworth, filed a notice of election to become co-respondents on 28 January 2005.

4.10 The co-respondents, Clare Evelyn Brinkworth and Peter Joseph Brinkworth, subsequently transferred the property to the co-respondent McKinion Pty Ltd on 21 April 2005.

4.11  The co-Respondent McKinion Pty Ltd has at no time reached agreement with the co-respondent, Turrisi Properties Pty Ltd for consideration (or otherwise) to transfer any interest that the co-respondent, Turrisi Properties Pty Ltd may have in the approval.

4.12  The co-respondent, McKinion Pty Ltd filed a notice of election on 3 June 2005.

4.13  The co-respondents, Clare Evelyn Brinkworth and Peter Joseph Brinkworth have agreed to withdraw from the proceedings upon the Court making the orders requested in this application.

These circumstances are similar to those considered in Ogle v. Pine Rivers Shire Council [2004] QPEC 71 but if anything less difficult for the applicant. In Ogle, the Council had rejected the former registered proprietor's development application. Here, of course, the corresponding application resulted in a development approval. Mr Ogle had instituted a developer appeal under s 4.1.27(1)(a) and strenuously opposed any participation in his appeal (or otherwise) by the new owner of the subject property, which was acquired in a mortgagee sale.

This appeal is brought by an adverse submitter and although the applicant in Court may have become the owner of the land in question at a very late stage, it satisfies the definition of "applicant" in schedule 10 of the Act which "includes the person in whom the benefit of the application vests."

Sections 3.5.28(1), 4.1.41.(1)(b) and 4.1.43(3) in particular establish, once the co-respondent applicant comes within the definition, that it is an applicant, and a proper respondent in a submitter appeal. Ogle demonstrates that there may be multiple applicants within the definition.

That is not at all surprising, given that under the section first mentioned, the approval granted by the Council runs with the property. 

The Council here abides the Court's order, and Mr Feros, appearing for the appellant, consents to its being made.

It is a clear case in which, given the chronology set out, it would be silly to insist on Mrs King's client complying with the 10 business day requirement for election under Section 4.1.41.

The co-respondent applicant, since it is now the registered proprietor of the land and will be directly affected by the outcome of the appeal, clearly ought to be a party in the proceeding.

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