Formosa v Maroochy Shire Council

[2011] QPEC 116

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Formosa & Anor v Maroochy Shire Council [2011] QPEC 116

PARTIES:

LEWIS XAVIER FORMOSA and JANET LIDIA FORMOSA
(Appellant/Applicant)

AND

MAROOCHY SHIRE COUNCIL
(Respondent)

FILE NO/S:

245/06

DIVISION:

Planning and Environment

PROCEEDING:

Application within a proceeding

ORIGINATING COURT:

Planning and Environment Court of Queensland, Maroochydore

DELIVERED ON:

13 September 2011

DELIVERED AT:

Maroochydore

HEARING DATE:

19 August 2011, with written submissions being received from the applicant and the respondent on 23 August 2011

JUDGE:

Long SC, DCJ

ORDER:

1. The respondent provide the following further disclosure in respect of the approvals identified at Items 232 and 233 of the Respondent’s Supplementary List of Documents dated 18 August 2011 (providing such approvals were given under the Maroochy Plan 2000);

(a)       the Development Application (including any supporting material);

(b)      the Planning Assessment report or reports that went to Council or its delegated authority.

2.    Each party bear their own costs in relation to the application.

CATCHWORDS:

PLANNING LAW – COSTS – Integrated Planning Act 1997, s 4.1.23(2)

Integrated Planning Act 1997
Planning and Environment Court Rules 2008.  
Uniform Civil Procedure Rules Ch 7 Pt 1

Cases considered:

Gauci Developments v Bundaberg City Council [2009] QPELR 66
Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPEC 29.

COUNSEL:

Mr E. Morzone, Counsel for the applicant

Ms S.C.  Holland , Counsel for the respondent

SOLICITORS:

Andrew Morris Legal Practice

Legal Services, Sunshine Coast Regional Council

1. By an application in a pending proceeding, filed on 12 August 2011, the appellant/applicant (“applicant”) applied for an order that:

“1.The respondent provides the appellant with disclosure and production or inspection of documentation in their possession and control:

(a)relating to the assessment or consideration or development applications for the use of land in Eumundi for the operation of markets between the years of 1990 to 2007 including:

(i)all development applications lodged with council for use of land in Eumundi for markets;

(ii)all documents relating to the assessment and consideration of the development applications disclosed pursuant to 1(a).

(b)comprising any draft and/or final Eumundi Market Management Strategy produced by the Council;

(c)comprising policies of the Council relating to the Eumundi markets or market activity in Eumundi whether they relate to the administration of the planning scheme or local laws, in existence prior to or after the commencement of the Planning Scheme Change.”

1. That application was heard by me on 19 August 2011, which hearing was concluded by the parties’ resolution of the following consent order:

“The respondent provide the following further disclosure in respect of the approvals identified at Items 232 and 233 of the Respondent’s Supplementary List of Documents dated 18 August 2011 (providing such approvals were given under the Maroochy Plan 2000);

(a)the Development Application (including any supporting material);

(b)the Planning Assessment report or reports that went to Council or its delegated authority.”

1. The respondent also agreed to prepare an affidavit deposing that no further policy documents of the type sought by the applicant exist.

1. The primary proceedings relate to the applicant’s claim (pursuant to s.5.4.2 of the Integrated Planning Act 1997) for compensation for reduction in value of an interest in land, consequent upon the refusal of the applicants development application, made in respect of the proposed use of the land at Eumundi for conducting markets on Sundays and under a now superseded planning scheme: Maroochy Plan 2000, but which was determined pursuant to the amendments to that scheme which commenced on 7 May 2002.

1. Accordingly, the only issue that remained in dispute on this application was the question of costs and the parties were given leave to provide written submissions as to this issue.

1. The applicant seeks an order that the respondent pay its costs of and incidental to the application (or alternatively a proportion of them), in essence upon the basis that the position now resolved between the parties should have been reached at an earlier point in time and so as to avoid the cost incurred in making this application. The applicant particularly points to the further list of documents provided by the respondent on the day prior to the hearing of this application and that it was only during the hearing of the application that the respondent indicated a willingness to make the further disclosure now encompassed in the consent order set out above. Accordingly, the applicant points to s 4.1.23(2)(e) of the Integrated Planning Act 1997 (“IPA”) as the source of the court’s power to so award costs.[1]

   [1]Each party accepts and it is clear that, s. 4.1.23 has application to interlocutory applications:  cf. Gauci Developments v Bundaberg City Council [2009] QPELR 66; Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPEC 29.

1. The respondent resists the application, essentially on the basis that it has at all times sought to comply with its disclosure obligations and particularly points to the breadth and extent of the initial request for further disclosure that was made by the applicant and pursued until matters resolved in the course of the hearing of the application.  The respondent also contends that it was not until the hearing of the matter that the applicant indicated any willingness to narrow the ambit of its request for further disclosure.

1. The respondent also points to the general or primary rule mandated by s 4.1.23(1) of the IPA that:

“Each party to a proceeding in the court must bear the party’s own costs for the proceeding.”

1. However and pursuant to s 4.1.23(2) of the IPA, the court is invested with discretion to make any costs order “as it considers appropriate”, if any one or more of a number of specified circumstances is established. Here, the circumstance relied upon as enlivening that discretion is in s 4.1.23(2)(e):

“(e)a party has incurred costs because another party has defaulted in the court’s procedural requirements.”[2]

[2]Here, the requirement was as to disclosure by a party, pursuant to Chapter 7 Part 1 Division 1 of the Uniform Civil Procedure Rules, which requirement was not contested by and had been actually assumed by the respondent, as, presumably, adopted and applied to these proceedings pursuant to Rule 3 of the Planning and Environment Court Rules 2008.  

1. It was apparent that the ventilation of issues at the hearing of this application was instrumental in the resolution of the abovementioned agreed position as to further disclosure and that at least part of the difficulty in assessing the issue of relevance of potentially further disclosable documents has been some differences in yet-to-be fully resolved views as to what is likely to be a central issue on these proceedings.[3]

   [3]That is, the assessment of any reduction in land value, which is attributable to a planning scheme change affecting a previous right to apply for a development permit or approval.

1. It is also clear that the agreed further disclosure falls a considerable degree short of the breadth and extent of the further disclosure sought by the applicant, up to the point of the hearing of the application.

1. In these circumstances and notwithstanding that there might be some valid basis for regarding the respondent’s efforts at proactively seeking to resolve a basis for further disclosure, as coming unfortunately late in the process, it would not, in my view, be appropriate to characterise the respondent’s conduct in terms that it has “defaulted in the court’s procedural requirements” and therefore no occasion arises for any departure from the general or primary rule that each party bears its own costs.

1. Alternatively, and should that conclusion not be an appropriate one and in the exercise of any discretion that was open to me, I would not, having regard to these same circumstances, have concluded that it was appropriate to make an order as to costs in favour of the applicant.

1. Accordingly, the orders are:

1. The respondent provide the following further disclosure in respect of the approvals identified at Items 232 and 233 of the Respondent’s Supplementary List of Documents dated 18 August 2011 (providing such approvals were given under the Maroochy Plan 2000);

   (a)the Development Application (including any supporting material);

   (b)the Planning Assessment report or reports that went to Council or its delegated authority.

1. Each party bear their own costs in relation to the application.