Bakrnchev Enterprises Pty Ltd v. Maroochy Shire Council

[2008] QPEC 121

[2008] QPEC 121

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 44 of 2006

BAKRNCHEV ENTERPRISES PTY LTD	Appellant
and
MAROOCHY SHIRE COUNCIL & ORS	Respondent

BRISBANE

..DATE 04/12/2008

ORDER

Catchwords
Integrated Planning Act 1997 s 4.1.23 - costs - relevance of party against whom a costs order is sought having previously in the proceeding sought (or obtained) are against the applicant for costs.

HIS HONOUR: The Court finally resolves this appeal by making an order in terms of the initialled draft, which contains some changes written in by me. The initialled draft provides, "The Court declares its satisfaction that the changes to the appellant's development application as defined in attachment A(2) from what was publicly notified, constituting minor change for the purposes of section 4.1.52(2)(b) of the Integrated Planning Act 1997".

It is adjudged that:

1. The appeal be allowed.
2. The application be approved subject to the conditions contained in attachment A(2).
3. Pursuant to section 4.1.23(2)(f) of the Act, by reason of the late provision of the revised proposal plan (Exhibit 2 at the hearing), the appellant pay the costs of the first co-respondents of and incidental to the obtaining of the supplementary ecological assessment report of Paula Duke (Exhibit 10A at the hearing) to be assessed on the standard basis if not agreed.

There is attached to the initialled draft a lengthy conditions package which incorporates the final layout of the proposal.  It differs in some respects from the proposal described as Exhibit 2.  It was indicated at the beginning of the appeal hearing that reasons will be given in due course for he order made on the 19th of November, 2007, declaring that Exhibit 2 represented minor change. 

I found the decision of Huntingdale (Queensland) Pty Ltd v. Hervey Bay City Council [2007] QPEC 045, to which Mr Allan referred me on the 19th of November last year, helpful in this regard. This is a similar case in which the development footprint of a proposed new subdivision has been substantially reduced, making available a large area as public open space for the enjoyment by members of the public of its undoubted flora and fauna values.

There is no need for the Court to include in the order the customary declaration of compliance with the Integrated Planning Act provisions regarding giving notice of the appeal and public notification, those matters having been incorporated in an order of Judge Robertson made at Maroochydore on the 20th of July, 2007. The public notification issue proved a significant one at earlier stages. The first co-respondents-by-election, who are neighbours but not immediate neighbours of the site, having, after some travails, made their point that further public notification of the development application was appropriate. On their way to that outcome, they had been ordered to pay the appellant's costs thrown away by an adjournment on the 15th of December, 2006. Judge Robertson, on the 19th of January, 2007, in an order which I understand was relevantly by consent, vacated that costs order.

For reasons which I think are obvious, Mr Skoien relies on the appellant's willingness to distinguish itself in the practise of the Court by seeking costs, contrary to the legislative approach in section 4.1.23 of the Act and what strikes me is a general attitude of unwillingness of litigants in the Court to seek costs, even where technically those might be potentially available under section 4.1.23. Mr Skoien's argument was that the willingness of the appellant to take that course against his client may be relevant to the Court's determining whether or not to exercise a discretion, if it has one at all, to make an order for costs in favour of his clients against the appellant.

On the first day of the appeal hearing, on the 19th of November, 2007, when Exhibit 2 was tendered, Mr Skoien specifically reserved Mr and Mrs Maley's rights to seek costs that they, his clients, might incur, by reason of the late provision of Exhibit 2.  It surfaced at 5.16 p.m. on the 15th of November, 2007, shortly before the hearing, and after the experts engaged in relevant fields of expertise had met and prepared their reports.

Mr Boyce, the Maleys' solicitor, deposes in general terms to additional work having to be done by Ms Duke, and his planner, Ms Evenhuis.  The Court is plainly informed of the additional work done by the former, which is encapsulated in her supplementary report, Exhibit 10A.  It purports to be a response to Exhibit 2 and essentially that is the way I would read it.  What, if anything, Ms Evenhuis might have done is for the moment left to the imagination. 

The application for costs is based on section 4.1.23(2)(f), and the appellant's having introduced new material.

Mr Allan, for the appellant, as I understand him, doesn't dispute that new material was introduced.  He disputes that it has been shown that the Maleys incurred costs because of that.  He submits that Exhibit 10A includes some new material, which is not a response to Exhibit 2.  He casts doubt on the expertise, relevantly, of Ms Duke, who conceded she was not a fauna expert.  He draws attention, and in this respect with some merit, to the unusual nature of Exhibit 2. 

It was essentially the work of Mr Warren, an animal ecologist who was brought in to assist the appellant at such a late stage in the proceeding as to occasion a certain amount of inconvenience.  Mr Warren identified relevant values in the site and proposed a substantial increase in the provision of public open space from it in the final development.  That was, of course, good news for the Maleys and Ms Duke.  Mr Warren had got the appellant to offer substantial concessions going a considerable distance towards meeting their concerns.

There's some force in Mr Allan's submission that it presents as a case of the appellant making a substantial offer and the Maleys and Ms Duke reacting by seeking perhaps even more than they had originally contemplated.  I am unpersuaded, in the end, having had my recollection of what happened in the appeal refreshed, that Ms Duke in particular did "up the ante", to use the vernacular, in the way suggested. 

Mr Allan is correct that the ecological issues were always in the appeal and remained in the appeal. He depicts what happened here as exactly the kind of thing that is to be expected in such an appeal, with the parties having to come to grips with changes suggested to a development proposal. He has analysed a number of the cases in which orders for costs have been made under the subparagraphs of section 4.1.23(2) and I think, broadly correctly, has indicated that those ordered to pay costs have been delinquent in ways which had more costly or inconvenient consequences than we encounter here - in particular, by way of delay, for example, in Burdekin Shire Council v. Pioneer Sugar Mills Pty Ltd [2004] QPEC 028, where, although Judge Alan Wilson SC focuses on delay which a government department brought about, the real point was the costs which were occasioned by that delay.

Mr Allan argued forcefully that the seeking and obtaining of a costs order by his client against the Maleys was entirely irrelevant in the application, which has to succeed on its own merits.  I certainly agree that a party seeking costs under section 4.1.33 must establish the Court's jurisdiction to award those costs and that a favourable exercise of that discretion ought to be indicated on the merits as the right outcome. 

In my opinion, it is a factor, although I would never expect it to be a determining one, that a particular litigant has sought to obtain a costs order for itself.  Such a litigant can hardly feel resentment at having been singled out as one who should be ordered to pay costs, something still quite exceptional in the practice of this Court.

I think it was reasonable and appropriate for the Maleys to respond by engaging Ms Duke to carry out new work for them when the revised proposal plan was made available to them after she completed her original report. There is no need for the Court to get into Mr Allan's application, an oral one, as was Mr Skoien's on behalf of the Maleys, that they should be ordered to pay his client's costs of Mr Skoien's oral application as a frivolous or vexatious part of this proceeding under section 4.1.23(2)(b).

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