The case of Wyandra St Developments Pty Ltd v Brisbane City Council [2024] QPEC 28 concerned an application to the Planning and Environment Court of Queensland (Court) seeking that parties be joined (Joinder Application) in the substantive proceedings relating to a change to a development approval that is a development permit for a material change of use for a multiple dwelling and a food and drink outlet (Development Approval).

The Development Approval, with conditions, was given by the Court with the consent of the parties in 2022 in an appeal against the deemed refusal of a change application. The applicants for the Joinder Application had made a properly made submission in respect of that change application and were Co-Respondents by Election in that appeal (Submitters).

The application to the Court under section 78 of the Planning Act 2016 (Qld) reprint dated 10 June 2022 (Planning Act) to change the Development Approval (Change Application) did not name the Submitters as respondents, and the Applicant for the Change Application opposed the Joinder Application.

The Court held that, to give effect to the doctrine of natural justice, an originating application seeking to change a development approval given or changed by a judgment of the Court is to name the individuals who were a party to the Court's original judgment (at [29]).

Accordingly, the Court ordered the Applicant to file and serve an amended Change Application in which the Submitters, as well as other parties to the Court's original judgment, are named as respondents (at [30]).

At the hearing of the Joinder Application the parties addressed whether the Submitters were entitled to be joined as respondents to the Change Application under rule 8(1) of the Planning and Environment Court Rules 2018 (Qld) (Court Rules) which states that "An originating application must name as a respondent the entity directly affected by the relief sought."

The Court observed at [12] that the requirement in rule 8(1) of the Court Rules is explained by the common law doctrine of natural justice stated in the case of Kioa & Ors v West & Anor [1985] HCA 91 as follows:

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it…The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

…the concept of 'legitimate expectation' extends to expectations which go beyond enforceable legal rights provided that they are reasonably based…The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case."

The Court held that the duty of natural justice does not extend to those indirectly affected as a member or class of the public and requires a consideration of the relevant statutory framework to determine if an obligation to provide a person a fair opportunity to respond to statements prejudicial to the person's view exists. What natural justice requires depends on the circumstances of the case, "…including, amongst other things, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting…" (at [13]).

The Court held having regard to the following that the Submitters have a legitimate expectation to be heard in respect of the Change Application (see [14] to [28]):

• The legitimate interests permitted to be considered under the Planning Act are broad having regard to the relevant statutory context, which in this case includes the provisions in the Planning Act relating to making and deciding a change application (see section 78 to section 81A), the definition in schedule 2 of the term "minor change" for a development approval, the provisions relating to advancing the purposes of the Planning Act (see section 5), and the meaning of "impact assessment" stated in section 45(5).

• The Submitters' expectation that the Development Approval will not be changed without them being given an opportunity to be heard is legitimate given that the Submitters participated in the proceedings relating to the giving of the Development Approval and were named as parties to the judgment giving the Development Approval.

• The combined effect of the statutory context and the legitimate expectation of the Submitters demonstrates that the Submitters are directly affected by the proceeding and entitled to be named as respondents. Further, the Submitters' affidavit evidence demonstrates beyond reasonable doubt the nature of their interest and their legitimate expectation.

• There is no statutory intention to exclude the doctrine of natural justice.

The Planning Act requires the Court as the responsible entity to consider, amongst other things, the following in assessing and deciding a change application for a minor change:

• Under section 81(2)(b), "…any properly made submissions about the development application or another change application that was approved".

• Under section 81(2)(da), "…all matters the responsible entity would or may assess against or have regard to, if the change application were a development application".

• Under section 81(2)(e), "…another matter that the responsible entity considers relevant".

The Court held that there is no guarantee that the Court will be provided with the evidence it considers relevant under section 81(2)(da) and section 81(2)(e) of the Planning Act, which may legitimately include evidence of the views of a party to the original proceedings in which the Court gave the development approval the subject of the change application. The Court held that without such evidence it may exercise its discretion to refuse the change application (at [28]).

Thus, the Court held that the doctrine of natural justice requires an originating application to change a development approval given or changed by a judgment of the Court to name as a respondent each party to the original judgment (at [29]).

The Court held that the Submitters ought to be named as respondents in the Change Application and ordered the Applicant to file and serve an amended Change Application to that effect.