PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Glamston Pty Ltd v 11 Ludlow Pty Ltd & Anor
[2020] QPEC 54	
PARTIES:	GLAMSTON PTY LTD 
(Applicant)
v
11 LUDLOW PTY LTD
(First Respondent)

and

BRISBANE CITY COUNCIL
(Second Respondent)	
FILE NO:	2661 of 2020	
DIVISION:	Planning and Environment	
PROCEEDING:	Originating Application	
ORIGINATING COURT:
	Planning and Environment Court, Brisbane	
DELIVERED ON:	22 October 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	22 October 2020	
JUDGE:	Everson DCJ	
ORDER:	The originating application is dismissed	
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPLICATION – whether there is jurisdiction to grant the declaratory relief sought – code assessable development – originating application seeking declaration that a prospective change to a development application is not a minor change	
LEGISLATION:	Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)	
CASES:	Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Ferreyra v Brisbane City Council [2016] QPELR 334
Highgate Partners (Qld) Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19
JPJ Developments Pty Ltd v Brisbane City Council [2019] QPEC 13
Novadeck v Brisbane City Council [2016] QPELR 951	
COUNSEL:	C Hughes QC and H Stephanos for the Applicant
G Gibson QC and ND Loos for the First Respondent
JG Lyons for the Second Respondent	
SOLICITORS:	Thomson Geer for the Applicant
Connor O’Meara Solicitors for the First Respondent
City Legal for the Second Respondent	

[1]	Originating Application 2661 of 2020 (“the originating application”) is brought in the context of appeal 4573 of 2019 (“the appeal”) which is already before the court. The originating application was amended by leave today.
[2]	The appeal is brought by 11 Ludlow Pty Ltd (“the appellant”) against the decision of the Brisbane City Council (“the council”) to refuse a development application for development permits for a material change of use and building work for a Food and Drink Outlet, Office and Shop (“the proposed development”) on land situated at 2 Oxford Street, Bulimba.
[3]	On 20 August 2020, the appellant filed an application in pending proceeding (“the interlocutory application”) seeking orders that a proposed change to the development application is a minor change pursuant to s 46(3) of the Planning and Environment Court Act 2016 (“PECA”) and that the appeal be heard and determined on the basis of the development application as amended by the proposed change.
[4]	It is of significance that the proposed development was code assessable pursuant to the council’s planning scheme, City Plan 2014.  As such, the assessment of it is confined to the relevant assessment benchmarks and matters prescribed by regulation pursuant to s 45 of the Planning Act 2016 (“PA”).  Importantly there is no opportunity for third parties to make a submission in respect of it and there are no third party appeal rights.
[5]	The originating application is brought by the owner of a neighbouring property (“the applicant”).  In its amended form it seeks, inter alia the following relief:
“a)	A declaration pursuant to s 11(1)(a) of the Planning and Environment Court Act 2016 (Qld) (PECA) that the changes to the development application sought by the Appellant in Planning and Environment Court Proceeding Number 4573 of 2019 (Appeal No. 4573 of 19) as outlined in the Affidavit of Christopher Gerard Buckley filed 20 August 2020 (proposed changes) do not constitute a “minor change” as defined within Schedule 2 of the Planning Act 2016 (Qld) and are therefore, pursuant to s 46(3) of PECA, not changes the Planning and Environment Court can consider.
b)	An order pursuant to s 11(4) of PECA that Appeal No. 4573 of 19 not proceed on the basis of the proposed changes.
b)c)	An order that the application in pending proceeding filed in Appeal No. 4573 of 2019 be dismissed.”
[6]	The applicant asserts jurisdiction to grant the relief sought in the originating application in the following terms:
“15.	The declaration sought falls within the identified jurisdictional source (s 11(1)(a) of PECA) in the following ways:
a)	the filing of the Application in Pending Proceeding on 20 August 2020 by the Appellant in Appeal No. 4573 of 19, which seeks an order that the proposed changes to the development application the subject of the appeal is a minor change for the purpose of s 46(3) of PECA, is a “matter done” within the meaning of that term in s 11(1)(a) of PECA; further, or in the alternative:	
b)	the Court’s consideration of whether the proposed changes constitute a minor change pursuant to s 46(3) of PECA is a matter “to be done” within the meaning of that term in s 11(1)(a) of PECA; further, or in the alternative:
c)	the Court’s consideration of whether the proposed changes constitute a “substantially different development” pursuant to s 46(3) of PECA, Schedule 1 of the Development Assessment Rules and the definition of “minor change” contained in Schedule 2 of the Planning Act 2016 is a matter “to be done” within the meaning of that term in s 11(1)(a) of PECA.”
[7]	The appellant seeks an order that the originating application be summarily dismissed.
[8]	The originating application focuses upon two provisions of the PECA.  Firstly, s 11 relevantly states:
“11General declaratory jurisdiction
(1)		Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about—
(a)	a matter done, to be done or that should have been done for this Act or the Planning Act; …”
As noted above, the jurisdiction to grant the relief sought in the originating application is said to relate to the filing of the interlocutory application and the future consideration of it.
[9]	The relief sought in the originating application focuses upon the requirement in s 46(4) of the PECA which states:
“(4)		The P&E Court can not consider a change to the development approval the subject of a change application under the Planning Act, section 78, unless the change is only a minor change to the approval.”
A minor change is defined in Schedule 2 of the PA as, inter alia, a change that does not result in “substantially different development”.
[10]	In the originating application the applicant alleges that the proposed minor change to the development application results in a substantially different development for reasons outlined in its supporting affidavit material.  These allegations are summarised in paragraph 13 of the originating application and are all allegations of fact, in circumstances where it is well-established that the question of whether or not a change is a minor change is a question of fact and degree.
[11]	The broad declaratory jurisdiction of the Planning and Environment Court evident in s 11(1)(a) of the PECA has been present for a long time in similar terms pursuant to different statutory regimes.  In the context of the Sustainable Planning Act 2009, Bowskill QC DCJ observed in Ferreyra v Brisbane City Council: 
“It is well-established that the function of the court in proceedings which seek declaratory relief of this kind are analogous to judicial review proceedings.   Consequently, the same constraints apply.” 
[12]	The difficulty for the applicant is that the relief sought in the originating application does not demonstrate any relief analogous to a judicial review proceeding.  For example in paragraph 15(a) it is not alleged that the interlocutory application is itself unlawful or beyond the jurisdiction of the court to entertain, or that the future consideration of it by the court in paragraphs 15(b) and (c) is similarly unlawful or without jurisdiction.  The applicant is seeking to make factual submissions that the proposed minor change will constitute a substantially different development, and therefore that the interlocutory application should be refused.
[13]	There are strong discretionary reasons for dismissing the originating application. There is no need to “quell a controversy” about the jurisdiction of the court to entertain the interlocutory application.  This jurisdiction is being exercised in the context of an interlocutory application which has been regularly made and which is clearly within the jurisdiction of the court to entertain.
[14]	On behalf of the applicant, Mr Hughes QC submits that on the facts before the court, the council does not intend to argue that the subject matter of the interlocutory application is not a minor change and that it is important that evidence led by the applicant be considered by the court in respect of this question.  An appropriate vehicle for such an argument would be an application pursuant to r 69(1)(b)(ii) of the Uniform Civil Procedure Rules 1999 that the applicant be included in the proceeding.  Where a development application is subject to code assessment, applications for joinder pursuant to this provision have repeatedly failed.  In my view, the originating application is but a thinly veiled attempt to effect a joinder in circumstances where the legislature does not give the applicant a right to be heard in an interlocutory application which involves factual determinations within the jurisdiction of the court. 
[15]	In circumstances where no relief of the type contemplated by s 11(1)(a) of the PECA is sought, where the legislature does not contemplate third party submissions in a proceeding relating to a minor change to a code assessable development application, and where the originating application seeks to determine the same question which is already lawfully before the court, there are sound discretionary reasons for dismissing the originating application.
[16]	Accordingly, the originating application is dismissed.