Cockburn v Hervey Bay City Council

[2005] QPEC 84

[2005] QPEC 084

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC  

P & E Appeal No 203 of 2005

JEFF COCKBURN  Appellant

v.

HERVEY BAY CITY COUNCIL               Respondent

BRISBANE

..DATE 19/08/2005

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 4.1.23(2) - application by appellant against a deemed refusal for costs occasioned by respondent Council's default in timely compliance with an order that it notify its attitude to the appellant's development application - Council advised its opposition so that appeal will proceed - appropriate directions for future steps made - costs application adjourned to a date to be fixed - not advisable to make a costs order immediately in the circumstances

HIS HONOUR:  The Court makes an order in terms of the initialled draft which advances the matter by identifying issues and providing for disclosure and inspection. 

The appellant seeks an order for costs of today's appearance which he contends were incurred because of the Council's non-compliance with an order made by Judge Robertson on the 15th of July 2005. Presumably the claim for costs is based on s 4.1.23(2)(e) of the Integrated Planning Act 1997.

The particular order required the Council to indicate by the 29th of July 2005 its attitude to the appellant's development application.  The appeal is against a deemed refusal.  Only today has the Council advised that its attitude is one of opposition to the development application - so that the appeal will proceed. 

The dimensions of the delay are not extreme by any means and something useful has been achieved by the making of directions.  However, that's not to preclude the success of Mr Wirz's costs application.

My impression of the practice in the Court is that costs orders, if they are to be made, are more likely to eventuate when an appeal is concluded, rather than being made as the occasion arises.  I may be wrong but except in the case of gross non-compliance with the Court's orders which is clearly productive of unnecessary costs being incurred, it's not the practice to give minor tactical victories to litigants in the form of costs orders.

The draft supplied by the parties to the Court has been amended so that it preserves the appellant's position.  It specifically adjourns the appellant's application for costs of today's appearance which he contends are occasioned by the respondent's non-compliance with paragraph 2 of the Court's order of the 15th of July 1995 to a date to be fixed.

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