Ebborn v Esk Shire Council (No 2)

[2006] QPEC 13

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Ebborn v Esk Shire Council & Ors (No 2) [2006] QPEC 013
PARTIES:	DAVID EBBORN
Appellant V
ESK SHIRE COUNCIL
Respondent And
STATE OF QUEENSLAND
First Co-Respondent by Election And
KERRY WAYNE DILLON & ORS
Second Co-Respondents by Election And
JAMES TEMPLETON DILLON & ORS
Third Co-Respondents by Election And
JACQUELINE COLLINS & ORS
Fourth Co-Respondents by Election And
BRIAN TIERNEY & ANOR
Fifth Co-Respondents by Election
FILE NO/S:	BD 4703 of 2005
DIVISION:	Planning and Environment
PROCEEDING:	Application in a proceeding
ORIGINATING  COURT:	Planning and Environment Court of Queensland
DELIVERED ON:	1 March 2006
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2006; written submissions received 13 and 18 February 2006
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Appellant’s application for costs refused
CATCHWORDS:	PLANNING – COSTS – COSTS IN PROCEEDINGS BEFORE THE PLANNING AND ENVIRONMENT COURT – DISCRETION TO AWARD COSTS – whether local authority obliged to provide appellant with a list of submitters – whether failure to provide full list should attract adverse costs order
Integrated Planning Act 1997
COUNSEL:	Mr J Haydon for the appellant
Mr W Everson for the second, and fifth co-respondents by election; and for A T Prpic, K Donohoe, E Donohoe, P Royle, and C Royle, co-respondents by election
Mr D Kevin, Solicitor, for the respondent
Mr T Law, Solicitor, for the first co-respondent
Mr J Dillon, Ms Templeton and Ms Dillon, co-respondents by election on their own behalves
SOLICITORS:	Stubbs Barbeler for the appellant
King and Company for the Respondent Crown Law for the first co-respondent M A Kent and Associates for the co-respondents for whom
Mr W Everson of Counsel appeared

1. When an appeal is brought in this court the customary first step is a Directions Hearing, at which the court makes orders and gives directions about the future conduct of the action: Planning and Environment Court Rules, 1999, rr 20, 25. Under r 25(2) the applicant must name as a respondent any party ‘… whose interests may be affected by the granting of the relief sought’.

2. The appellant seeks an order that the costs thrown away by the adjournment of his application for a Directions Order in this matter on 3 February 2006 be paid by the respondent, Esk Shire Council. For reasons which follow, I am not persuaded that a costs order should be made, but it is appropriate to traverse some issues raised by both the appellant, and the respondent Council.

3. It is not disputed that, shortly before the hearing, the Council told the appellant’s solicitors of some forty-four persons who should have been given notice of the appeal and, the appellant says, but for that the adjournment would not have been necessary.

4. Those persons were interested as ‘submitters’, that is, they had made submissions to the Council about the appellant’s original development application, the genesis of the appeal. Once an appeal is brought, the appellant must give notice of it to them: Integrated Planning Act 1997, s 4.1.41, and they have the right to elect to become co-respondents. The appellant says he obtained a list of these submitters from the Council and relied on it and gave notice to those persons, a large number of whom elected; and filed and served the application, only to discover too late that the list of those who received the notice was incomplete.

5. This is what IPA terms a ‘deemed refusal’ appeal, ie one in which the absence of a decision from the Council within a specified period is construed as a refusal of the appellant’s development application: ss 3.5.7 – 3.5.10, 4.1.27(1)(e). There is an undoubted obligation on a Council to give an applicant a list of the names and addresses of submitters when a Decision Notice issues in respect of a development application (s 3.5.15(2)(i)), but no precise corresponding provision when the application is deemed to be refused by effluxion of time. Nevertheless, the appellant says, a similar obligation should be inferred from the legislation.

6. It is unnecessary to decide the point, but not easy to see how a contrary view could be sustained. The legislation, in a previous form, obliged an ‘assessment manager’ (here, and usually, the Local Authority) to give an appellant such a list: IPA, s 4.1.40 (repealed), and the Explanatory Notes for the relevant amendments to s 4.1.41 make it clear the obligation was intended to continue – as it had for some time, since the preceding legislation: Local Government (Planning and Environment) Act 1990, ss 7.1(2A) and 7.1(3).

7. S 4.1.41 carries on the obligation of the appellant to give notice of the appeal to submitters and there is no sensible reason why the assessment manager, as the clearing house for submissions and the repository of information about them, should not assume the duty (whatever the event which gives rise to the appeal) to tell the appellant who they are.

8. Rather, Council’s contentions were that costs could not be awarded in this circumstance; or should not be, for discretionary reasons. The first submission touches this court’s power to award costs, which arises under IPA s 4.1.23. That section turns its face against costs as an ordinary part of relief in the jurisdiction, but contains a number of exceptions which might attract them. The appellant relies on those which permit the court to consider an award of costs where a party does not properly discharge its responsibilities in the proceedings (4.1.23(2)(i)), or where some default in the performance of procedural requirements adds to another party’s costs ((2)(e); or, where a proceeding or part of a proceeding is frivolous, or vexatious ((2)(b)).

9. As to the first, the appellant relies upon a decision of the Land Appeal Court[1], and the Court of Appeal [2] for the proposition that the phrase ‘responsibilities in the proceedings’ includes the Council’s failure to provide a full list of submitters here. Again it is unnecessary to determine the point, but noteworthy that the Land Appeal Court decision remarks upon distinctions between the relevant provision in its governing legislation, and s 4.1.23, and the passages from the Court of Appeal decision relied upon are in broad compass[3].

   [1] Chrismel Pty Ltd v Department of Natural Resources and Mines [2005] QLAC 31

   [2] Mudie v Gainriver Pty Ltd (2003) 2 Qd R 271

   [3] McMurdo P and Atkinson J, supra, at 282-3

10. Default in procedural requirements appears, as a consequence of an amendment in 2000[4], to be specifically limited to matters within the court proceedings themselves. It is unclear whether, as the appellant contends, requirements of the PECR[5] associated with the obligation to notify submitters of the appeal calls up these rules to an extent which brings the matter within the sub-section, but a different view has been taken about a similar, earlier, provision[6].

    [4] Local Government and Other Legislation Amendment Act 2000

    [5] In particular, r 20(2)

    [6] Heilbron & Partners Pty Ltd v Pine Rivers SC (1995) 1 Qd R 357

11. As to frivolity or vexation, it cannot be said the proceeding, or part of it, has these qualities and it is not readily discernible that a procedural failing outside, albeit within the ambit of, the appeal itself could be categorised as something of the ilk envisioned by the provision.

12. Even if a different view had been reached, however, I would not be inclined to order costs here. A large number of persons were present at the hearing, and representation was uncertain. Preliminary points were mooted but to a degree still, at that time, inchoate. A question which arose about the nature of service of notice upon the submitters was determined, but reasons were reserved. In particular, the parties were quite divided about the nature of necessary directions and it was plain time was needed to resolve those differences – a conclusion warranted, in retrospect, by the fact that subsequently, on the adjourned date, complex directions were ultimately resolved by agreement.

13. Further, although I was not directed to any specific evidence on the point, the confusion which arose is very likely to have been the product of the large number of submissions (over 200) originally received by this rural local authority.

14. In those circumstances the Council’s error while regrettable and, it is to be hoped, isolated is not one which should be punished in costs.