BM Carr Holdings atf the Carr Farming Trust v Southern Downs Regional Council
[2013] QPEC 4
•01/03/2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
BM Carr Holdings atf The Carr Farming Trust v Southern Downs Regional Council & Anor [2013] QPEC 4
PARTIES:
BM CARR HOLDINGS PTY LTD ACN 095 465 735 as trustee for the CARR FAMILY TRUST
(Appellant)v
SOUTHERN DOWNS REGIONAL COUNCIL
(Respondent)and
DEPARTMENT OF TRANSPORT INDUSTRIES AND MAIN ROADS
(Co-Respondent)FILE NO/S:
BD 700 of 2012
DIVISION:
Planning and Environment Court
PROCEEDING:
Conditions and Costs
ORIGINATING COURT:
Brisbane
DELIVERED ON:
01/03/2013
DELIVERED AT:
Brisbane
HEARING DATE:
24/01/2013
JUDGE:
Searles DCJ
ORDER:
1. Condition 4 as proposed by the Council is void as a fetter on the future exercise of the Respondent Council’s discretion, and is deleted from the otherwise agreed conditions package.
2. Judgment in accordance with the draft judgment submitted on behalf of the Applicant at hearing, with the insertion in the otherwise agreed conditions package being Attachment A thereof, of Condition 4 set out hereunder unless within seven days of today, the parties either notify agreement on an alternative Clause 4 or either party notifies the court that it wishes to make further submissions on an appropriate alternative Clause 4:-
(a) “Those parts of Lots 1 and 2 on RP 36824, Lot 1238 on CP M34534 and Lot 1 on SP 214513 within the 2.5 odour unit contour as shown on Figure 8 of the Second Joint Report of the Air Quality Experts dated 7 September 2012 (or within a 2.5 odour unit contour determined from time to time in accordance with the Queensland Government Guideline Odour Impact Assessment from Developments as amended or any subsequent document prepared for a similar purpose) are to be maintained as buffers to dwellings from the approved development on pads 1, 4 and 5 (‘the Development Buffer’).”
3. The Respondent to pay the Appellant’s costs on a standard basis of its appearances on 21 September 2012, 26 September 2012, and 3 October 2012.
CATCHWORDS:
Conditions - whether condition prohibiting dwellings within buffer zone void as an unlawful fetter on future exercise of Council’s discretion
Costs - Reserved costs – Planning and Environment Court Rules 2010 – late introduction of new significant issues- consistent failure to meet obligations under Court orders – default in the court’s procedural requirements – providing incomplete information
Sustainable Planning Act 2009
Planning and Environment Court Rules 2010
Southern Downs Regional Planning Scheme 2012
Hall-Bowden v Pine River Shire Council [2006] QPEC 39
Attorney-General (New South Wales) v Quin (1990) 170 CLR 1
Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia & Ors (1977) 139 CLR 50
North Sydney Council v Ligon 302 Pty Ltd [No. 2] (1996) 93 LGERA 23
Zhang v Canterbury City Council (2001) NSWCA 167
R v Hunt ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
Evans v Marmont (1997) 42 NSWLR 70
COUNSEL:
Applicant: J.J Haydon
Respondent: Solicitors
SOLICITORS:
Applicant: Mullins Lawyers
Respondent: Connor O’Meara
TABLE OF CONTENTS
Present applications
Condition 4 dispute
Applicant’s argument
Respondent Council’s response
Meaning of “having regard to” in SPA ss 313(3) and 314(3)
Comments on submissions generally
Is Condition 4 void and of no effect?
Costs application
Background
CHRONOLOGY
2 May 2012
6 July 2012
31 August 2012
11 September 2012
13 September 2012
14 September 2012
17 September 2012
18 September 2012
19 September 2012
20 September 2012
Comment on letter 20 September 2012
21 September 2012
24 September 2012
25 September 2012
26 September 2012
27 September 2012 – 3 October 2012
14 November 2012
14 November 2012 – 19 December 2012
20 December 2012
Consideration of each costs claim
21 September 2012
Conclusion RE 21 September 2012 costs
26 September 2012 costs
3 October 2012 costs
20 December 2012 costs
Order as to costs
Order of Court
Present applications
There are two applications by the Applicant/Appellant following on from judgment delivered on 14 November 2012.[1] They are:-
[1]B M Carr Holdings atf The Carr Farming Trust v Southern Downs Regional Council & Anor [2012] QPEC.
(a) An order deleting Condition 4 from the otherwise agreed condition package on the basis that it is void and of no effect as constituting a fetter on the future exercise of the Respondent Council’s discretion; and
(b) An application that certain reserved costs be paid by the Council.
Condition 4 dispute
As indicated, Condition 4 of the otherwise agreed conditions package is the only condition in dispute. It is in these terms:-
“Those parts of lots 1 and 2 on RP 36824, Lot 1238 on CP M34534 and Lot 1 on SP 214513 within the 2.5 odour unit contour as shown on Figure 8 of the Second Joint Report of the Air Quality Experts dated 7 September 2012 (all within a 2.5 odour unit contour determined from time to time in accordance with the Queensland Government Guideline Odour Impact Assessment from Developments as amended or any subsequent document prepared for a similar purpose) are to be maintained as buffers to the approved development on pads 1, 4 and 5 (“the Development Buffer”). No dwelling other than a caretaker residence is to be developed in the Development Buffer.”
Applicant’s argument
The Applicant asserts that the proposed condition is void and of no effect because it would place an unlawful fetter on the Council’s discretion with respect to all future development applications for the lots listed in the condition. It referred to Hall-Bowden v Pine River Shire Council[2] in support of that argument. In that case the Council gave sub-division approval in 1996 under the then Local Government (Planning and Environment) Act 1990 (P&E Act) subject to a condition that the Council should not permit further sub-division of the subject lots after completion of the sub-division the subject of the approval.
[2][2006] QPEC 39; [2006] QPELR 546.
The discussion and decision in that case concerned the determination of the correct level of assessment. It was common ground between the two applicants and the Council that the abovementioned condition was void and of no effect as a fetter on the Council’s discretion in any future application to sub-divide the land contrary to the condition. In that case his Honour, in considering the decision in Attorney-General (New South Wales) v Quin[3] adapted the words from a passage of the Chief Justice to exemplify his finding that the Council’s discretion to consider a future application for sub-division could not be fettered by a condition to the effect that there would be no further sub-division. The adapted passage reads:-[4]
“I am unable to perceive how a representation made or impression created by the (Council) can preclude it from adopting a new policy, or acting in accordance with such a policy … the (Council) cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interests, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power …”
[3](1990) 170 CLR 1 at 17.
[4][2006] QPEC 39 at [32].
The applicant also relied upon Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia & Ors[5] where, in the context of town planning cases, Mason J said:-[6]
“The Secretary must at all times deal with applications for import permits in accordance with the law; if he considers that, in conformity with government policy, the public interest calls for the importation of the aircraft, he should grant the application notwithstanding that the Commonwealth has entered into a contract which provides to the contrary. To hold otherwise would enable the executive by contract in an anticipatory way to restrict and stultify the ambit of a statutory discretion which is to be exercised at some time in the future in the public interest or for the public good. …
Furthermore it has been decided in town planning cases that a local or planning authority cannot by contract fetter in an anticipatory way its future discretion to approve or reject applications after proper consideration in accordance with prescribed procedure.”
[5](1977) 139 CLR 50.
[6]Ibid p 75.
Those authorities evidence the well established principle making unlawful any attempt to fetter future exercise of a discretion by a decision maker. The applicant says that, against the background of that principle, the effect of the proposed condition is to pre-determine all future development applications for any of the four lots the subject of the condition. That would prevent any future development application in relation to them from being assessed on its merits, the Council having fettered its discretion in advance.
The applicant points to the assessment regime for residential uses under the current Southern Downs Regional Planning Scheme.[7] It says that under the scheme a dwelling house on Lot 1 on RP 36824 would be code assessable because:-
[7]See original judgment pp 48 and 49.
(a) The lot does not have access to a constructed road; and
(b) Parts of the lot are within 1500 metres of the poultry farm shed.
As to any application for a dwelling house on Lot 1238 on CP M 34534, likewise it would be code assessable if located within 1500 metres of the poultry farm sheds.[8]
[8]See Residential Uses Assessment Criteria – reasons for judgment [48]-[50].
The applicant says that, if future application was made for residential use on Lot 1 or on Lot 1238 in the circumstances described, the statutory discretion vested in the assessment manager to assess any such future development application on its merit would be fettered by the subject condition.
Respondent Council’s response
The Council’s initial written submissions tendered on the day of the hearing contained the following statement in paragraph 7(d):-
“To the extent the Appellant might contend that the Development Buffer Condition has little utility because the Council’s current planning scheme requires the making of a development application for land within the identified odour contour, the Respondent says:-
(a) …
(b) …
(c) …
(d) The condition seeks to achieve an outcome not achievable by the scheme, that is, prohibition of dwellings within the Development Buffer;
(e) …”
In its subsequent submissions of 29 January, incorporating the earlier submissions, that sub-paragraph was omitted.
The Council now says the subject condition would not fetter the Council’s discretion in its consideration of any future application. It relies upon ss 313(3)(b) and 314(3)(b) of the Sustainable Planning Act 2009 (SPA) which deal with the assessment of applications requiring code assessment and impact assessment respectively.
Sections 313 and 314 provide, respectively:-
“Code assessment – generally
(1)This section applies to any part of the application requiring code assessment.
(2)The assessment manager must assess the part of the application against each of the following matters or things to the extent the matter or thing is relevant to the development—
(a) the State planning regulatory provisions;
(b)the regional plan for a designated region, to the extent it is not identified in the planning scheme as being appropriately reflected in the planning scheme;
(c)any applicable codes, other than concurrence agency codes the assessment manager does not apply, that are identified as a code for IDAS under this or another Act;
(d)State planning policies, to the extent the policies are not identified in—
(i)any relevant regional plan as being appropriately reflected in the regional plan; or
(ii)the planning scheme as being appropriately reflected in the planning scheme;
(e) any applicable codes in the following instruments—
(i) a temporary local planning instrument;
(ii) a preliminary approval to which section 242 applies;
(iii) a planning scheme;
(f)if the assessment manager is an infrastructure provider—an adopted infrastructure charges resolution or the priority infrastructure plan.
(3)In addition to the matters or things against which the assessment manager must assess the application under subsection (2), the assessment manager must assess the part of the application having regard to the following—
(a) the common material;
(b) any development approval for, and any lawful use of, premises the subject of the application or adjacent premises;
(c) any referral agency’s response for the application;
(d)the purposes of any instrument containing an applicable code.
Impact assessment – generally
(1)This section applies to any part of the application requiring impact assessment.
(2)The assessment manager must assess the part of the application against each of the following matters or things to the extent the matter or thing is relevant to the development—
(a) the State planning regulatory provisions;
(b)the regional plan for a designated region, to the extent it is not identified in the planning scheme as being appropriately reflected in the planning scheme;
(c)if the assessment manager is not a local government—the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the assessment manager and that are relevant to the application;
(d)State planning policies, to the extent the policies are not identified in—
(i)any relevant regional plan as being appropriately reflected in the regional plan; or
(ii)the planning scheme as being appropriately reflected in the planning scheme;
(e) a temporary local planning instrument;
(f) a preliminary approval to which section 242 applies;
(g) a planning scheme;
(h)for development not in a planning scheme area—any planning scheme or temporary local planning instrument for a planning scheme area that may be materially affected by the development;
(i)if the assessment manager is an infrastructure provider—an adopted infrastructure charges resolution or the priority infrastructure plan.
(3)In addition to the matters or things against which the assessment manager must assess the application under subsection (2), the assessment manager must assess the part of the application having regard to the following—
(a) the common material;
(b)any development approval for, and any lawful use of, premises the subject of the application or adjacent premises;
(c) any referral agency’s response for the application.”
The Council says that the above sections set the parameters for the exercise of the assessment manager’s discretion when considering an application in which discretion is not at large. Relevantly, it says, the assessment manager is required to take into account any existing development approval which includes any conditions attaching to it.[9] It further says that a condition of any such extant approval operates as a fetter on the future discretion of the assessment manager but that such a fetter is lawful and forms part of the terms on which the discretion is granted in ss 313 and 314.
[9]SPA s 244; Schedule 3 definition of a development approval.
The Council goes on to say that the relevant decision rules do not require the Council to form a particular view about any future development application merely because of the existence of the condition under consideration. Rather, it is said, that condition would merely be a factor to be considered, albeit an important one.
I accept that ss 313 and 314 operate upon the discretion to be exercised by the assessment manager in the consideration of any application and, as will be seen later, any extant approval is but one of the matters to be taken into account in the consideration of a later application. But, of course, nothing in those sections or elsewhere in SPA has the effect of elevating an otherwise unlawful condition to a lawful one so as to entitle it to be properly taken into consideration in the exercise of the relevant discretion. Put another way, any unlawful condition attaching to an extant approval, to which the assessment manager must have regard in a future application, could not be taken into consideration by the assessment manager in arriving at a lawful decision. I do not understand the Council to be contending to the contrary.
The difficulties which can arise, highlighting the importance of the determination of the lawfulness of Condition 4, were exemplified in North Sydney Council v Ligon 302 Pty Ltd [No. 2][10], a decision of the New South Wales Court of Appeal. In that case the Court was considering the legitimacy of a decision of the Court below which had been required to consider the relevant Development Control Plan (DCP). The Appeal Court concluded that because the trial judge, in purporting to give weight to the DCP, had at the same time formed the view that it was invalid, he had not given the requisite consideration to it. Cole JA with whom Meagher JA and Abadee A-JA agreed said:[11]
“… whilst his Honour stated that he had ‘given weight to the development control plan’ that statement was made against his clear view that the document to which he was purportedly giving weight was invalid and, accordingly, of no effect. Further, he determined not to apply it. The consequence must be that, in truth, his Honour did not give any real consideration to or have regard for the provisions of the development control plan: Parramatta City Council v Hale (1982) 47 LGRA 319 at 399. There has not been a single ‘proper genuine and realistic consideration’ of the application having true regard to the development control plan: Brussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483 per Gummow J; Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184 per Toohey J. It follows, in my view, that the reconsideration by the Land and Environmental Court was not in accordance with the order of this Court … which made clear that consideration of the development control plan was required by s 90(1) of the Act.”
The Court of Appeal disagreed with the trial judge, and considered the DCP valid. By parity of reasoning, any decision of the present Council on any future application in relation to the subject land would, likewise, be open to attack if that decision took into consideration a condition which was void as a fetter on its discretion.
Meaning of “having regard to” in SPA ss 313(3) and 314(3)
[10](1996) 93 LGERA 23.
[11]Ibid [28].
Relevantly, SPA s 313(3)(b) (Code Assessment) is identical to s 314(3)(b) (Impact Assessment) in that both provisions provide that, in addition to the matters or things against which the assessment manager must assess the application under subsection (2), the assessment manager must assess the application “having regard to” any development approval. Sections 313(2) and 314(2) set out the matters or things “against which” the assessment manager must assess the application.
In Zhang v Canterbury City Council[12] the Court considered on appeal a decision of the Land and Environment Court which in turn had heard an appeal from a decision of a Commissioner relating to a refusal by the Council to grant a development application to use premises as a brothel.
[12](2001) NSWCA 167.
Development Control Plan No. 23 (DCP No. 23) regulated brothel development in the subject area and it set out the objectives and standards for such development, a number of objectives and the factors relevant to the location of brothels.[13] In relation to the decision maker’s obligation to “take into consideration” DCP No. 23[14], Spigelman CJ with whom Meagher JA and Beazley JA agreed said:-[15]
[13]Ibid [5], [6], [7], [8], [9], [10].
[14]Ibid [61].
[15]Ibid [70]-[73].
“[70] In order to ‘take into consideration’ the particular provisions of DCP No.23, the Commissioner was under an obligation to consider the fact that the DCP established a standard that a brothel should not be ‘located adjoining or within 200 m walking distance of any place of worship’ et cetera and that standard was designed to serve the objective of ensuring that ‘Brothels are located at a reasonable distance from … sensitive land uses.’ The Environmental Planning and Assessment Act required the commissioner to consider that standard in conducting the evaluations under s 79C(1).
[71] The statutory power in s 80 of the Environmental Planning and Assessment Act to ‘determine a development application’ by granting or refusing consent does not confer an unfettered discretion. It is subject to the obligation to ‘take into consideration’ the matters identified in s 79C(1). This obligation is of a similar character to that which has been found to be imposed by a statutory obligation to ‘have regard to’ identified matters.
[72] In one such statutory context Mason J said:-
‘When subs (7) directs the Permanent Head to ‘have regard to’ the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination’ (emphasis added); R v Hunt ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329.
[73] In the case of a statute which empowered the court to make such order ‘as to it seems just and equitable having regard to: (a) ... and (b) ...’, Gleeson CJ and McLelland CJ in Eq said: Gleeson CJ and McLelland CJ in Equity said:-
‘.. Par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations’ (emphasis added) Evans v Marmont (1997) 42 NSWLR 70 at 79-80.
[75] The consent authority has a wide ranging discretion – one of the matters required to be taken into account is ‘the public interest’ – but the discretion is not at large and is not unfettered. DCP No. 23 has to be considered as a ‘fundamental element’ in or a ‘focal point’ of the decision making process. A provision so directly pertinent to the application for consent before the Council as was clause 4 of DCP No. 23 was entitled to significant weight in the decision making process but was not, of course, determinative.”
(emphasis added)
It is apparent that the importance the Court attached to DCP No. 23 founded the obligation on the decision-maker to treat it as a fundamental element or focal point of the decision.
When one turns to the cases referred to in Zhang where the terms ‘fundamental element’ and ‘focal points’ were used, it is apparent, as with Zhang, that the context rendered those terms appropriate in describing the relevant Development Control Plan No. 23 which was to be taken into consideration.
R v Hunt ex parte Sean Investments Pty Ltd[16] concerned the approval of premises as an approved nursing home under the National Health Act1953 (Cth) which involved the Permanent Head determining the fees to be charged. Section 40AA(7) provided that the Permanent Head shall, in determining the scale of fees, have regard to costs necessarily incurred in providing nursing home care in the nursing home. The applicants challenged the decision of the Permanent Head and sought a writ of mandamus directing the Minister to consider and determine its application according to law. Relevant to the point under discussion, Mason J with whom Gibbs J agreed said[17]:
“When sub-s. (7) directs the Permanent Head to ‘have regard to’ the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination. There are two reasons for saying that the costs are a fundamental element in the making of the determination. First, they are the only matter explicitly mentioned as a matter to be taken into account. Secondly, the scheme of the provisions is that, once the premises of the proprietor are approved as a nursing home, he is bound by the conditions of approval not to exceed the scale of fees fixed by the Permanent Head in relation to the nursing home. In many cases it is to be expected that the scale of fees will be fixed by ascertaining the costs necessarily incurred and adding to them a profit factor. In the very nature of things, the costs necessarily incurred by the proprietor in providing nursing home care in the nursing home are a fundamental matter for consideration.
However, the sub-section does not direct the Permanent Head to fix the scale of fees exclusively by reference to costs necessarily incurred and profit. The sub-section is so generally expressed that it is not possible to say that he is confined to these two considerations. The Permanent Head is entitled to have regard to other considerations which show or tend to show that a scale of fees arrived at by reference to costs necessarily incurred, with or without a profit factor, is excessive or unreasonable. …”
The above passage explains the use by the court of the term “fundamental element”.
[16](1979) 180 CLR 322.
[17]Ibid, page 329.
In Evans v Marmont[18] the Court was considering the criteria for the determination of what was just and equitable for a property division under the De Facto Relationships Act 1984. Section 20(a) and (b) of the Act provided:
[18][1997] 42 NSWLR 70.
“(1)On an application by a de facto partner for an order under this Part to adjust interests with respect to the property of the de facto partners or either of them, a court may make such order adjusting the interests of the partners in the property as to it seems just and equitable having a regard to:
(a)the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to the acquisition, conservation or improvement of any of the property of the partners or either of them or to the financial resources of the partners or either of them, and
(b)the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the de facto partners to the welfare of the other de facto partner or to the welfare of the family constituted by the partners and one or more of the following, namely:
(i) a child of the partners,
(ii)a child accepted by the partners or either of them into the household of the partners, whether or not the child is a child of either of the partners.
(2)…”
The majority of the court, Gleeson CJ, McLelland CJ in Equity and Meagher JA, held that s 20(1)(a) and (b) prescribed the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. At p 79 Gleeson CJ and McLelland CJ in Equity said:
“Most importantly, s 20 specifies, in par (a) and par (b), the matters to which the court is to have regard. As was pointed out above, those matters will ordinarily have to be considered, and a judgment as to what is just and equitable having regard to those matters will ordinarily have to be made, in a context, and that context may well include factors of the kind referred to by Hodgson J at first instance in Dwyer v Kaljo. However, par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations. It is by having regard to those matters that the court may adjust property interests in a just and equitable manner.”
Again that gives expression to the court’s reason for using the term “focal points”.
I have detailed the above cases to seek to demonstrate that, before a particular provision in a statute is to attract the appellation of “fundamental element”, “focal point” or any other synonym, the context must allow of it. Although it is not necessary to determine the point in relation to SPA ss 313 and 314, I doubt whether the requirement to have regard to a development approval in subsection (3)(b) of those sections could be said to be a fundamental element or a focal point in the decision making process of the assessment manager in any future development application.
Rather, it is but one of several matters to be taken into account and, as the above cases show, extant development approval would not be determinative of any future application. But that does not alter the fact that the decision of any future decision-maker would be at risk of miscarrying if consideration was given to any unlawful condition.
Comments on submissions generally
Before turning to the issue of validity of Condition 4 I will make a general comment on the submissions received. The Council in its submissions pointed to the manner in which the Appellant had run its case suggesting that it had at all times contemplated there be a buffer zone as contemplated by proposed Condition 4. Mr Heydon for the Appellant responded in detail to those submissions. There is no need for me to detail the respective submissions. The approach taken by any party in the running of its case or the opinion expressed by any expert witness in evidence as to the lawfulness or otherwise of a condition is not determinative of that issue which must be determined according to law and by reference to the content of any such condition.
Is Condition 4 void and of no effect?
I am sympathetic to the Council’s position that future sensitive receptors in the subject odour unit contour area described in Condition 4 should be protected from any adverse impacts of the development. However, Condition 4, as presently drafted,[19] is in my view void as a fetter on the Council’s future exercise of its discretion as alleged by the Appellant. I do not see that it arises other than from the last sentence which reads:-
“No dwelling other than a caretaker residence is to be developed in the Development Buffer.”
[19]Appellant’s written submissions, 24 January 2013.
I say that having regard to the definition of Buffer in the Scheme which, relevantly, is:-
SC 1.2 Administrative Definitions
Term Definition Buffer An area of land, including waterways, required for maintaining separation distances:
· Between different land uses;
· From a major noise source
· …
· …
· A buffer is not exclusive of other uses and may incorporate lower intensity activities which assist in mitigating the overall impact on external uses. As a general principle a buffer is not extended over a third party’s property without their consent.
It can be seen that the imposition of a buffer does not, of itself, prohibit future development within the buffer zone. The last sentence of Condition 4, however, does evidence a prohibition on residential development other than a caretaker’s cottage. To prohibit that, and to preordain a caretaker’s cottage, as the condition does, fetters the Council’s later discretion to decide a future application.
The provision for a buffer should be expressed to reflect the importance of any future use of the land the subject of Condition 4 not being adversely affected by any odour from the development. It should not be expressed in prohibitory terms but be clear enough for any assessment manger in the future to identify the intent of the condition.
Given that the concern is protection of the amenity of any future sensitive receptors, the alternative condition proposed by the Appellant would be appropriate and lawful if the prohibitory final sentence were deleted. Condition 4 would then be in these terms:-
“Those parts of Lots 1 and 2 on RP 36824, Lot 1238 on CP M34534 and Lot 1 on SP 214513 within the 2.5 odour unit contour as shown on Figure 8 of the Second Joint Report of the Air Quality Experts dated 7 September 2012 (or within a 2.5 odour unit contour determined from time to time in accordance with the Queensland Government Guideline Odour Impact Assessment from Developments as amended or any subsequent document prepared for a similar purpose) are to be maintained as buffers to dwellings from the approved development on pads 1, 4 and 5 (‘the Development Buffer’).”
I will hear the parties further on that suggested condition. If I have not heard from either party within seven days or if both parties earlier indicate agreement with the condition, then judgment of the court on this aspect of the matter will be in accordance with the draft judgment handed up by the Appellant on the hearing of this application subject to the following amendments:-
(a) Insertion of the correct date of judgment; and
(b) In Condition 4, deletion of the word “Deleted” and in lieu thereof insertion of the above condition.”
Costs application
Turning now to the costs application. The Appellant seeks orders that the Council pay its costs of and incidental to its appearances directions hearing on four occasions namely:
(a) 21 September 2012;
(b) 26 September 2012;
(c) 3 October 2012; and
(d) 20 December 2012.
It is common ground that the operation of s 945 of the Sustainable Planning Act 2009 (SPA) (Reprint 2B) renders s 457 in Reprint 2A applicable because the appeal was commenced prior to commencement of Reprint 2B.
The Appellant relies upon the following subsections of s 457:
(a) Section 457(2)(d);
(b) Section 457(2)(e);
(c) Section 457(2)(f); and
(d) Section 457(2)(i); when read together with Rule 4 of the Planning and Environment Court Rules 2010.
Section 457 provides:-
“Costs
(1) Each party to a proceeding in the court must bear the party’s own costs for the proceeding.
(2)However, the court may order costs for the proceeding, including allowances to witnesses attending for giving evidence at the proceeding, as it considers appropriate in the following circumstances—
…
(d) a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;
(e) without limiting paragraph (d), a party has incurred costs because another party has introduced, or sought to introduce, new material;
(f) a party has incurred costs because another party has defaulted in the court’s procedural requirements;
…
(i) an applicant, submitter, assessment manager, referral agency, coordinating agency for a master plan application, compliance assessor, a person requesting compliance assessment or a local government does not properly discharge its responsibilities in the proceeding;
…”
Rule 4 of the 2010 Rules provides:-
“Philosophy – overriding obligations of parties and court
(1)The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in the proceedings at a minimum of expense;
(2)Accordingly, these rules are to be applied by the court with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules;
(3)In the proceeding in the court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.”
Background
The original appeal, commenced on 23 February 2012, challenged the Council’s decision of 30 January 2012 relating to a development application to establish a poultry farming operation containing 48 sheds on five Pads (Pad fig 1 – 8 sheds; Pads 2, 3, 4 and 5 – 10 sheds each) some 20 kilometres south-east of Warwick on the Cullendore Road, Murrays Bridge on land containing an area of 881.7 hectares. The Appeal was finally run on the basis that 34 sheds were sought and not 48.
It is necessary to set out the relevant chronology of events.
CHRONOLOGY
2 May 2012
By order of 2 May 2012[20] the appeal was to be listed for hearing for seven days in the October 2012 sittings. Reports of expert witnesses and statements of evidence of lay witnesses were to be exchanged by 7 September 2012 and names of witnesses to be exchanged by 29 June 2012.
[20]Court order, doc. No 8 filed 2 May 2012.
6 July 2012
On 6 July 2012 the matter was further reviewed. By that stage all parties (including Co-Respondent later excused) had complied with the order of 2 May 2012 except that the Council had not provided notice, with particulars, of its grounds of refusal of the development of application by 25 May 2012 in terms of par3(b) of that order. On 6 July 2012 the 25 May 2012 date was extended to 6 July 2012.[21] The 25 May 2012 deadline was extended to 6 July 2012 and the Council ordered to pay the Appellant’s costs of the direction hearing resulting from its default.
[21]Court order, doc. No 16 filed 9 July 2012.
31 August 2012
The matter was again reviewed on 31 August 2012 when the 7 September 2012 date for the exchange of experts’ reports and the witness statements ordered on 2 May 2012 was extended to 17 September 2012.[22] Further, the Council was ordered to respond to the Table of Resolved and Unresolved Conditions by 7 September 2012. At that hearing the Co-Respondent was excused from further attendance.
[22]Court order, doc. No 25 filed 5 September 2012.
11 September 2012
By letter dated 11 September 2012[23] to the Council’s solicitors the Appellant’s solicitors advised that their client was prepared to accept a part approval of its development application whereby Pads 1, 4 and 5 would be approved together with six sheds on Pad 3. The following day they sent a plan showing the proposed sheds on Pad 3.[24]
[23]Ex AJO-1 to affidavit of AJ O’Dwyer filed 21 September 2012, p 2.
[24]Ibid, p 4.
13 September 2012
By letter dated 13 September 2012[25] the Council’s solicitors notified the Appellant’s solicitors that they would seek instructions in regards to the Appellant’s offer to accept part approval. In a second letter of that same day,[26] the Council’s solicitors informed the Appellant’s solicitors that, due to illness, its expert witness Ms Doherty would not be in a position to complete her trial report by the 17 September 2012 deadline ordered on 31 August 2012.
[25]Ibid, p 7.
[26]Ibid, p 9.
14 September 2012
On 14 September 2012 the Appellant’s solicitors sent two letters to the Council’s solicitors, the first[27] enclosing an email from its air quality expert Mr Galvin and the second[28] providing additional acoustic modelling for the fig 4 Pad 34 shed configuration prepared by its acoustic expert Mr Goodfellow. On 14 September 2012 the parties met for a without prejudice conference.
[27]Ibid, p 11.
[28]Ibid, p 15.
17 September 2012
Following a pre-callover review on 12 September 2012, at the callover on 17 September 2012, the appeal was set down for hearing to commence on 5 October 2012. In terms of the order of 31 August 2012, that day, 17 September 2012, was also the deadline for the exchange of experts’ reports and lay witness statements.
That same day the Appellant’s solicitors emailed the Council’s solicitors advising that they were ready to exchange expert witness reports.[29] The Council’s solicitors replied that day[30] advising that the Council would not be in a position to exchange reports that day and that they would notify the Appellant’s solicitors when the Council expected to be in a position to exchange reports.
[29]Ibid, p 21.
[30]Ibid, p 24.
18 September 2012
The following day, 18 September 2012, the Appellant’s solicitors again emailed the Council’s solicitors asking when the Council would be in a position to exchange experts’ reports.[31] Later that day the Appellant’s solicitors also forwarded an updated Table of Resolved and Unresolved Conditions following the 14 September without prejudice conference.[32]
[31]Ibid.
[32]Ibid, p 27.
19 September 2012
The following day, 19 September 2012, not having heard from the Council’s solicitors, the Appellant’s solicitors again emailed them reminding them of the 17 September 2012 Court order deadline and asking when the Council intended to exchange its expert reports.[33] The same day, the Council’s solicitors replied[34] advising:-
[33]Ibid, p 65.
[34]Ex HW-1 to affidavit of H Whitcroft filed 21 September 2012, p 2.
(a) They were meeting with the Council that afternoon to obtain instructions about recent developments in the Appellant’s settlement offer (this referred to the abovementioned correspondence from the Appellant advising it would accept the part approval of its development applications); and
(b) They had deliberately not finalised their client’s expert reports until they received those instructions; and
(c) As a result of further information provided to the Council’s experts, Mr King and Ms Richardson, by the Appellant’s experts, they asked whether the Appellant’s solicitors thought further joint expert reports were necessary.
That same day, the Appellant’s solicitors replied[35] in the following points:-
[35]Ex AOD-1 to affidavit of AJ O’Dwyer filed 21 September 2012, p 69.
(a) Their deliberate decision not to finalise the experts’ reports until after receiving instructions was in contravention of the Court order;
(b) No directions for an extension of time in this regard were sought at the callover of 17 September 2012 nor was it mentioned in their email of 17 September 2012;
(c) The additional information was provided to Mrs Richardson and Mr King on 12 and 14 September 2012 respectively and was provided to the Council’s solicitors on 14 September 2012; and
(d) Given that the additional information had not been dealt with prior to 17 September 2012 when experts’ reports were to be exchanged, the Appellant’s experts had proceeded to prepare their reports which were ready for exchange on 17 September 2012.
20 September 2012
The following day, 20 September 2012, the Appellant’s solicitors sent another email to the Council’s solicitors again requesting when the Council would be ready to exchange expert reports.[36] The Council’s solicitors responded that they would be responding in writing to that request by the close of business that day.[37] At 7.30 p.m. on 20 September the Council’s solicitors wrote advising[38], relevantly:-
[36]Ibid, p 72.
[37]Ibid, p 74
[38]Ibid, p 75.
(a) The earlier part approval proposed by the Appellant was unacceptable;
(b) The Council would be refusing the development application in full;
(c) The Council had recently become aware that nearby owners Mr and Mrs Wilson had an intention to build a dwelling house in the future on part of their lot covered by the relevant odour contour and that had not been considered as a potential future sensitive receptor by the Council’s air quality experts;
(d) Given that both acoustic and air quality experts needed to complete additional joint reports, experts’ reports should not be exchanged until those further reports had been completed.
(e) The further reports were expected to be completed early the following week with exchange of reports shortly thereafter;
(f) Unless the Appellant consented by 4.00 p.m. the following day the matter would be listed the following week for orders in terms of the above.
Comment on letter 20 September 2012
There is one matter in the Council’s solicitors’ letter of 20 September 2012 to be clarified and that is the statement by the Council’s solicitors that:-
“We have recently become aware that the owners of lot 1203 on M34534 (“Lot 1203”), Greg and Meryl Wilson, have an intention to build a dwelling in the future on a part of their lot that is covered by the relevant odour contours.”
Whilst it is clear that the Council’s solicitors had only recently become aware of the Wilson’s intention, the Council had been aware of it since around 21 September 2011 when the Wilson’s lodged a submission concerning the Appellant’s development application.[39] There was some initial confusion because Mrs Wilson’s statement referred to attachments A and B[40] which were not included as part of the statement when given to the Appellant’s solicitors.[41] They were respectively a map of the locality with an ‘X’ marking the approximate location of the house intended to be built (A) and the Wilsons’ submission of 21 September 2011 (B). It is clear from Mrs Wilson’s evidence[42] that the September 2011 submission to the Council raised the prospect of a future house site on the Wilson land and that the location of that proposed house was marked on a map lodged with the submission to the Council. That mark is the same as the mark referred to in her statement. Whereas the Council’s solicitors were only recently aware of those facts, the Council had been aware of them since September 2011.
[39]Exhibit 32, para 10.
[40]Ibid, paras 7 and 10.
[41]See exchange of correspondence between solicitors, Ex HW-1 to affidavit of H Whitcroft filed 25 September 2012, pp 9, 40 and 44; EX HW-5 to affidavit of H Whitcroft filed 3 October 2012, p 2.
[42]Ex HW-1 to affidavit of H Whitcroft, p 40.
21 September 2012
Upon receipt of the 20 September 2012 letter raising the new matter, the Appellant’s solicitors arranged for the matter to be mentioned the following day.[43] On 21 September an order was made[44], relevantly, in these terms:-
[43]Ex AOD-1 to affidavit of AJ O’Dwyer, p 79.
[44]Court order doc. No 31 filed 21 September 2012.
“(a)The time under paragraph 10(a) of the Order made on 2 May 2012 and paragraph 9 of the Order made on 31 August 2012 for the exchange of written reports of expert witnesses shall be extended to 5.00 p.m. on 24 September 2012.
(b)The respondent give written notice by 5.00 p.m. today as to whether it wishes to raise an issue in relation to the Wilson land and if so provide the Appellant with any documentation it has in relation to the development intention for that land.
(c)The further hearing of the application for directions is adjourned to 9.15 a.m. on Wednesday 26 September 2012.
(d) The Appellant’s costs of today are reserved.”
Under cover of the letter of 21 September 2012[45] sent at 5.13 p.m. that day, the Council’s solicitors enclosed an Amended Notice of Disputed Issues dealing not only with the Wilson land, the subject of the order that day, but also introducing another new issue, namely the risk of unacceptable odour impacts from land owned by one Mr Usher[46]. Despite the fact that any reference to the Usher land was not contained in the order that day, the Council’s solicitors’ letter said that the Amended Notice sent was made pursuant to that order.
[45]Ex HW-1 to affidavit of H Whitcroft filed 25 September 2012, p 9.
[46]Ibid.
That 21 September 2012 letter also enclosed a witness statement by Mrs Wilson and explained that the reference to the two attachments A and B was a mistake because they did not presently form part of her statement. I’ve already dealt with that issue.
24 September 2012
On 24 September 2012[47] the Appellant’s solicitors requested a copy of attachment A to allow them to verify the proposed location of the intended Wilson dwelling.
[47]Ibid p 44.
25 September 2012
The Council’s solicitors replied by letter of 25 September 2012[48] advising that at the time Mrs Wilson signed her statement on 19 September 2012 there was in fact neither an attachment A nor an attachment B to that statement. They went on to say that they were in the process of preparing the plan requested by the Appellant and would provide it shortly. As I have said, the evidence of Mrs Wilson shows that the documents were in existence. They further advised that they did not as yet have a signed statement from Mr Usher but would forward it immediately they had it.
[48]Ex HW-5 to affidavit of H Whitcroft filed 3 October 2012, p2.
26 September 2012
The next day 26 September 2012, in accordance with the order of 21 September, the matter was further reviewed. The Council was granted leave to further amend its Amended Notice of Disputed Issues dated 21 September 2012 to include the Usher issue.[49] The Council was further ordered to provide to the Appellant the identification of future sensitive receptors relied upon for the Usher land. Finally, the Council was ordered to respond on or before 12 noon Tuesday 20 October 2012 to the Table of Resolved and Unresolved Conditions sent by the Appellant’s solicitors on 18 September 2012. The court also made orders that the Council provide to the Appellant certain further information to allow the location of the Wilsons proposed residence to be located on an aerial photograph provided by the Council. The matter was adjourned to 3 October 2012 for further directions.
[49]Court order doc. No 36 filed 3 October 2012.
27 September 2012 – 3 October 2012
In terms of the order of 31 August 2012[50] non-expert witness statements were to be exchanged not less than five days before the first day of the hearing of the appeal on 5 October. That meant that those statements were to be exchanged by 28 September 2012. On that day the Appellant’s solicitors wrote to the Council’s solicitors[51] advising that they were not in a position to exchange a statement of Mr Brad Carr and suggested statements be exchanged the following Tuesday 2 October. They also sought the identity of the Council’s lay witnesses to be relied upon. It is apparent that the Council, likewise, was not in a position to exchange lay witness statements by 28 September either.
[50]Court doc. No 25, para 10.
[51]Ex HW-5 to affidavit of H Whitcroft filed 3 October 2012, p 25.
On 2 October the Appellant’s solicitors wrote advising that they were in a position to exchange lay witness statements and sought confirmation that the Council, likewise, was in a position to exchange. It sought a response by 12 noon so that the review set for the next day could perhaps be adjourned on the papers. The Council’s solicitors responded that same day advising that they were not in a position to exchange by midday but were working towards exchanging later in the day subject to being able to contact Mr Usher.[52] They also said they were happy to adjourn the next day’s directions hearing on the papers.
[52]Ibid, p 29.
As it transpired, the Appellant’s solicitors did not agree to the adjournment of the 3 October review because they had not received the Council’s response to the Table of Resolved and Unresolved Conditions due by 12 noon on 2 October in accordance with the order of 26 September 2012.[53] The email from the Appellant’s solicitors to the Council’s solicitors of 2 October notifying the Appellant’s position was sent at 1.18 p.m., 18 minutes after the 1 p.m. deadline for the adjournment of matters on the papers in the court Registry.
[53]Ibid, p 31.
At 1.48 p.m. on 2 October the Appellant’s solicitors sent a letter to the Council’s solicitors suggesting the exchange of lay witness statements at the Council’s solicitors’ office at 4 p.m. that day and sought confirmation that that was suitable to them.[54] At 7.32 p.m. that evening of 2 October the Council’s solicitors sent the Appellant’s solicitors a response to the Table of Resolved and Unresolved Conditions.[55] On 3 October the time for delivery of the Response to the Conditions Table was extended to 8 p.m. of the evening 2 October 2012 and the time for the exchange of lay witness statements was extended to 10 a.m. of 3 October 2012. This was two days from the commencement of the hearing on 5 October.
[54]Ibid, p 32.
[55]Ex HW-6 to affidavit of H Whitcroft filed 22 January 2013, p 61, lines 39-42 of transcript.
14 November 2012
The decision allowing the appeal in part was delivered on 14 November 2012.
14 November 2012 – 19 December 2012
Directions were given on 16 November 2012 requiring:-
(a) The Appellant to provide a draft of its proposed conditions, Site Based Management Plan (SBMP) and environmental procedures manual by 20 November 2012;
(b) The Council to provide a list of disputed conditions with alternative draft conditions by 30 November 2012;
(c) With out prejudice conference to be held on 5 December 2012 to resolve any outstanding conditions; and a
(d) Further review on 12 December 2012.
On 5 December 2012 the parties attended a without prejudice conference and following on from that, on 7 December, the Appellant’s solicitors sent the Council’s solicitors marked up draft conditions and an SBMP reflecting an agreement reached at the without prejudice conference.[56] Their letter listed conditions not yet agreed. On 11 December 2012 the parties agreed that the 12 December 2012 directions hearing would be adjourned to 19 December 2012 on the basis that the Council provided proposed conditions 4 and 25 by 11 December 2012 and a response to the Appellant’s draft conditions package and SBMP by 13 December 2012.[57] The hearing was adjourned on the papers. On 11 December 2012 the Appellant also provided the Council with its acoustic mound plan.[58]
[56]Ex AOD-4 to affidavit of AJ O’Dwyer filed 20 December 2012, p 2.
[57]Ibid, p 4.
[58]Ibid, p 7.
Despite its agreement to do so, the Council failed to provide the draft conditions 4 and 25 on 11 December 2012. At 7:00a.m. on 12 December 2012 the Appellant’s solicitors emailed the Council’s solicitors asking for them.[59] There was no response. At 5.43p.m. the same day, the Appellant’s solicitors again emailed seeking the draft conditions 4 and 25.[60] The Council’s solicitors replied at 6.12p.m. advising the draft conditions would be provided the following morning.[61] They were not. Accordingly, at 3.28p.m. the Appellant’s solicitors again emailed seeking the draft conditions and the response to the Appellant’s draft conditions package and SBMP due on that day in terms of the earlier agreement to adjourn.[62] The Council’s solicitors responded at 4:38 p.m. on 13 December 2012 advising that the draft conditions were with the Council and that they expected to respond shortly.[63]
[59]Ibid, p 10.
[60]Ibid, p 12.
[61]Ibid, p 14.
[62]Ibid, p 17.
[63]Ibid, p 20.
Between 14 and 17 December 2012 there were exchanges of both without prejudice and open correspondence between the parties. On 17 December 2012 at 4.58 p.m. the Appellant’s solicitors sent through the conditions package it proposed for the Judgment and advised that it was in a position to finalise the three SBMPs without delay.[64] They then detailed proposed changes to each SBMP.
[64]Ibid, p 25.
The Council responded the same day to the proposed amendment resulting in the Appellant’s solicitors sending an amended conditions package the following day 18 December 2012 seeking the Council’s acceptance of amended conditions 2, 4 and A18.[65]
[65]Ibid, p 28.
At the directions hearing on 19 December 2012[66] the matter was adjourned to the following day to allow the Council to consider the SBMPs for Pads 4 and 5 delivered by the Appellant’s solicitors at 9.22am the previous day 18 December 2012.
[66]Ex HW-6 to affidavit of H Whitcroft p 2.
20 December 2012
At the 20 December 2012 hearing Mr Haydon for the Appellant advised the court[67] that a complete response had been received from the Council and once some amendments to each Site Based Management Plan had been done all issues should be fixed leaving only one condition still in dispute.
[67]Ibid, p 7, line 50.
Consideration of each costs claim
21 September 2012
The Appellant argues that it incurred costs on this day because of the late introduction by the Council of the new issue relating to the Wilson land and the Council’s failure to exchange experts’ reports by the extended date 17 September 2012.[68] The Council responds by saying it had only recently become aware of the Wilson land issue and, arising out of that, considered that further joint acoustic and air quality reports should be obtained given that the experts, to date, had not considered the Wilson land as a possible future sensitive receptor. It goes on to say that the Appellant did not respond to its letter of 20 September 2012 advising of the above but rather brought the matter urgently before the court. It further points to its earlier correspondence of 13 September 2012 advising that, due to illness, Ms Doherty would not be in a position to complete her trial report by 17 September 2012. It then referred to other correspondence of 19 September 2012 to the Appellant’s solicitors when it advised that it was seeking instructions from the Council in relation to exchange of experts’ reports but had deliberately not finalised the reports pending those instructions. That same letter, it says, asks the Appellant’s solicitors whether they thought further joint reports were necessary.
[68]See orders 2 May 2012, 6 July 2012, 31 August 2012.
Conclusion RE 21 September 2012 costs
I am not persuaded that any of the matters raised by the Council addresses the issue. By 21 September 2012 the 5 October 2012 hearing was two weeks away. The earliest time the matter could have been listed for mention in the normal course, absent an urgent hearing, would have been Wednesday 26 September 2012, the first day of the court’s usual review days. That would have been six days out from the trial. Even if an urgent review was secured on Monday 24 September 2012 that would still be just eight days out from the trial.
The introduction of the Wilson issue was a significant new development in the Council’s case. It was introduced at a time when the Council was again in breach of a Court order to exchange experts’ reports by 17 September 2012. Despite the illness of Ms Doherty, a decision was made by the Council to delay preparation of its experts’ reports. This was on top of the Council’s consistent failure to meet its obligations under Court orders of 2 May 2012, 6 July 2012 and 31 August 2012. I consider the Appellant’s action in bringing the matter on urgently on 21 September 2012 was reasonable and that it is appropriate that the Council pay the Appellant’s costs on a standard basis for its appearances on that day.
26 September 2012 costs
The order of 21 September 2012 provided for a further directions hearing at 9.15 a.m. Wednesday 26 September 2012. It also provided that the Council give written notice by 5.00 p.m. on 21 September 2012 as to whether it wished to raise the Wilson land issue and, if so, provide the Appellant with any documentation relating to the development intention for that land. The Council notified the Appellant of its intention to rely on the Wilson land but in its letter of 21 September 2012 the Council also:-
(a) Introduced a new issue, namely the Usher land;
(b) Enclosed a witness statement by Mrs Wilson dated 19 September 2012 which referred to two attachments A and B which, the Council said, did not presently form part of that statement. I’ve already referred to the uncontroverted evidence of Mrs Wilson to the effect that 12 months before that in September 2011 she and her husband had made a submission which marked on a map the proposed future house site. Hence, whilst attachments A and B may not have physically formed part of the statement from Mrs Wilson, they were in existence and were caught by par 2A of the 21 September 2012 order obliging the Council to provide all documentation relating to the Wilson land if it intended to rely upon it;
(c) Omitted to identify any future sensitive receptors on the newly introduced Usher land in the Amended Notice of Disputed Issues enclosed in the letter.
The above evidences the introduction of yet another new issue and the failure of the Council to comply with the order of 21 September 2012 so far as the provision of relevant information relating to the Wilson land was concerned. As the Appellant points out, had the Council complied with the 21 September 2012 order, there would have been no need for further review on Wednesday 26 September 2012 and the matter could have been adjourned on the papers.
In response, the Council says that had the Appellant provided a draft order earlier than 25 September 2012 an agreement could have been reached between the parties for the provision of the further information required to be delivered under the 21 September 2012 order. The hearing of 26 September 2012 could, it is said, have been adjourned on the papers.
The Council’s argument ignores the fact that it was again in default of the 21 September 2012 order in that it had failed to provide necessary and relevant information in relation to the Wilson land. The 26 September 2012 hearing was necessary only because of that default by the Council and the Appellant is entitled to its costs on the standard basis.
3 October 2012 costs
On 26 September 2012 the Council was ordered to provide, by 12 noon Tuesday 2 October 2012, its response to the Table of Resolved and Unresolved Conditions sent by the Appellant’s solicitors on 18 September 2012. As the chronology shows, the Council again defaulted by failing to provide its response to the Table by 12 noon as ordered. It provided it at 7.32 p.m. some seven and a half hours late. At this time the trial was three days away. I should say that at that point both parties were in default of the order of 31 August 2012 requiring exchange of non expert witness statements by 28 September 2012.
In the exchange of correspondence between the parties on 2 October 2012 the Appellant advised that it was then in a position to exchange lay witness statements and sought an exchange in which case, it said, the review the following day 3 October 2012 could be adjourned on the papers. The Council’s solicitors responded saying they would not be in a position to exchange statements by midday and were working towards being in a position to exchange later that day depending on whether or not they were able to contact Mr Usher. They said they would be happy to adjourn the 3 October 2012 review on the papers.
The review proceeded and on that day two orders were made, one sought by the Appellant extending the time for the Council’s response to the Table of Conditions sent at 7.32 p.m. the evening before to 8.00 p.m. to regularise the Council’s default and extending the time for the exchange of lay witness statements to 10.00 a.m. that day. There was also an order made on the application of the Council, that odour experts meet again and prepare a further report by 4.00 p.m. 5 October 2012 (the first day of the trial) dealing with additional issues raised in the Amended Notice of Disputed Issues. Nothing in the correspondence leading up to the 3 October 2012 hearing foreshadowed that order. It is my view that the 3 October 2012 hearing was necessary as a result of the Council’s default in providing its response to the Table and the Appellant should have its costs on a standard basis for that appearance.
20 December 2012 costs
At the 20 December 2012 hearing Mr Haydon informed the court that a complete response had been received from the Council and that, subject to some amendments to each SBMP, issues concerning them should be resolved, leaving only one condition in dispute. The Appellant seeks its costs of this appearance on the basis that the Council should have been in a position on 19 December 2012 to sign off on the SBMP. It says that the SBMP for Pad 1 fig 1 was used as a model and that it would have been a relatively straight forward exercise to compare the equivalence for Pads 4 and 5. Mr Haydon relied upon his experience in the 1960s in the Supreme Court registry manually checking the content of testators’ wills against probate documents to found that submission.
The Council contends that the timeframe was simply too short to allow it to do justice to the necessary requirement of checking all documents prior to final sign off with the Appellant. I agree with the Council despite my comments on 19 December 2012 intended to progress the matter as quickly as possible. I am not persuaded that the Appellant is entitled to its costs in relation to the 20 December 2012 appearance.
Order as to costs
I order that the Council pay the Appellant’s costs of its appearances on 21 September 2012, 26 September 2012 and 3 October 2012.
Order of Court
The order of the court is:-
1. Condition 4 as proposed by the Council is void as a fetter on the future exercise of the Respondent Council’s discretion, and is deleted from the otherwise agreed conditions package.
2. Judgment in accordance with the draft judgment submitted on behalf of the Applicant at hearing, with the insertion in the otherwise agreed conditions package being Attachment A thereof, of Condition 4 set out hereunder unless within seven days of today, the parties either notify agreement on an alternative Clause 4 or either party notifies the court that it wishes to make further submissions on an appropriate alternative Clause 4:-
“Those parts of Lots 1 and 2 on RP 36824, Lot 1238 on CP M34534 and Lot 1 on SP 214513 within the 2.5 odour unit contour as shown on Figure 8 of the Second Joint Report of the Air Quality Experts dated 7 September 2012 (or within a 2.5 odour unit contour determined from time to time in accordance with the Queensland Government Guideline Odour Impact Assessment from Developments as amended or any subsequent document prepared for a similar purpose) are to be maintained as buffers to dwellings from the approved development on pads 1, 4 and 5 (‘the Development Buffer’).”
3. The Respondent to pay the Appellant’s costs on a standard basis of its appearances on 21 September 2012, 26 September 2012, and 3 October 2012.
2
1
2