Gold Coast City Council v Hanwell Pty Ltd

[2004] QPEC 57

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Gold Coast City Council v Hanwell Pty Ltd & Ors [2004] QPEC 057
PARTIES:	GOLD COAST CITY COUNCIL

Applicant

and

HANWELL PTY LTD (ACN 010 173 725)

First Respondent

and

ANTHONY LEON STEPHENS

Second Respondent

and

KEITH CHARLES STEPHENS

Third Respondent

and

TOP RIDER GOLD COAST PTY PTD

(ACN 083 712 574) TRADING AS “TOPRIDER”

Fourth Respondent

and

BERNARD JAMES HATTON

Fifth Respondent

FILE NO:	221 of 2003
PROCEEDING:	Application for costs
ORIGINATING  COURT:	Planning and Environment Court Southport
DELIVERED ON:	13 October 2004
DELIVERED AT:	Southport
HEARING DATE:	5 October 2004
JUDGE:	Newton DCJ
ORDER:	Application refused

CATCHWORDS: PLANNING LAW – COSTS – FRIVOLOUS OR
VEXATIOUS PROCEEDINGS – discretion of Court –
relevant considerations – Integrated Planning Act 1997
S 4.1.23
Integrated Planning Act 1997 s 4.1.23
Cases cited:

Gold Coast City Council v Metrostar Pty Ltd & Ors [2004]
QPEC 029
Mudie v Gainriver Pty Ltd & Anor (2002) 124 LGERA 393
Oceanic Sunline Special Shipping Company Inc v Fay (1988)
165 CLR 197

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

COUNSEL:	Mr R Litster– applicant Mr D Gore QC - respondents
SOLICITORS:	Corrs Chambers Westgarth – applicant Phillips Fox– respondents

[1]  On 5 October 2004 this Court ordered by consent, inter alia that the respondents adopt and implement the Noise Management Plan annexed to the Order. Thus, it is hoped, that ongoing difficulties with respect to noise from the operation of the Darlington Park Speedway may be resolved. The present application is that the respondents be ordered to pay the applicant Council’s costs of and incidental to the application leading to the consent order.

[2]  In support of its application the Council claims that the respondents have not treated their obligations seriously with respect to complying with an earlier order of the Court. That order, made on 10 November 2003, was in the following terms:

“1. The Respondents have caused or permitted premises known as ‘Darlington Park’ at Peachy Road, Luscombe, more properly described as Lot 16 on RP 229285 (‘the Land’) to be used in breach of the requirements of the Planning Scheme for the former Shire of Albert that was in effect from 24 February 1995 to 17 August 2003 (‘the 1995 Planning Scheme’);

2. The Respondents have caused or permitted the Land to be used in

breach of requirements of the Gold Coast City Council Planning Scheme that
commenced on 18 August 2003 (‘the 2003 Planning Scheme’);

3. The Respondents have caused or permitted development offences to be committed in breach of section 4.3.5 of the Integrated Planning Act 1997 by causing or permitting the Land to be used other than in accordance with the 1995 Planning Scheme and the 2003 Planning Scheme;

4. Further or in the alternative to paragraph 3, the Respondents have caused or permitted development offences to be committed in breach of section 4.3.1 of the Integrated Planning Act 1997 by carrying out assessable development without a development permit for that development;

Pursuant to section 4.3.25 of the Integrated Planning Act 1997, it is ordered that:

5. The First, Second and Third Respondents erect, or cause to be erected, fencing around the entire perimeter of the Land with:

(a) the northern, eastern and western boundaries to be fenced with
cyclone mesh fencing or fencing of a similar standard; and
(b) the southern boundary to be fenced with 100m of chain link
fencing from the south western corner and 5 strand barbed wire
fencing for the balance;

6. The Respondents cease to conduct, or allow to be conducted any activity on the Land that results in noise levels exceeding those prescribed in the Third Schedule of the Rezoning Agreement between the First Respondent and the former Shire of Albert dated 28 October 1988 (‘the Rezoning Agreement’);

7. The Respondents cause a noise management plan to be produced, for

approval by the Applicant, which includes, but is not limited to, the following
elements:

(a) the repair of the deficiencies in the existing acoustic barriers and the construction of further effective acoustic barriers in appropriate locations;

(b) the establishment of acceptable noise emission levels for vehicles intending to use the Darlington Park Raceway (‘the Raceway’), including acceptable noise emission levels for each type of vehicle for:

(i)         use of the whole Raceway; and

(ii)        use of only the eastern part of the Raceway;

(c) means of achieving compliance with the noise emission levels established in accordance with paragraph (b) specifically including the scrutineering of each vehicle intended to be used on the Raceway on each occasion prior to use so that:

(i)         vehicles which produce acceptable noise levels are confined to appropriate parts of the Raceway; and

(ii) vehicles which produce unacceptable noise levels are
prohibited from using the Raceway;

(d) restriction of activities to parts of the Raceway appropriate to
the noise emissions resulting from those activities;
(e) an open and auditable regime of continuous noise monitoring of
activities conducted at the Raceway to be carried out by the
Respondents;
(f) establishment of an appropriate correlation to determine the
noise levels at affected residences based on the noise monitoring
carried out at the Raceway;
(g) a regime for the Respondents to report to the Applicant in
relation to the noise monitoring;
(h) a regime for the Applicant to conduct random audits of the
noise monitoring conducted by the Respondents; and
(i) a mechanism for the Respondents to receive and respond
reasonably and appropriately to complaints;

8. The draft noise management plan referred to in paragraph 7 is to be

completed and submitted to the Applicant for its approval within 15 business
days of the date of this Order;

9. The Applicant is to provide its approval or points of disagreement with the draft noise management plan within 15 business days of its receipt;

10. The Respondents must fully comply with the approved noise

management plan, including the implementation of all necessary work, within
40 business days of its approval by the Applicant;

11. This Originating Application be adjourned to allow a trial of the effectiveness of the noise management plan;

12.        There be liberty to apply.”

[3]  Counsel for the applicant complains that on 28 November 2003 a draft noise management plan prepared by Max Winders & Associates was provided to his instructing solicitors who subsequently contacted the then solicitors for the fourth and fifth respondents (who were separately represented from the first, second and third respondents) and advised that they had received the draft noise management plan and asked whether there was any intention to submit any material on behalf of the fourth and fifth respondents. The applicant’s solicitors were informed that it was not intended to submit any such material.

[4]  On 9 December 2003 Mr Rogers, who had undertaken measurements and testing with respect to excessive noise at the Raceway, received a draft noise management plan prepared apparently for the first and fourth respondents by Mr Thorne. Thus, the applicant had received two noise management plans, one within the time specified by the order made on 10 November 2003 and one given outside time. The solicitors for the applicant thereupon sought advice as to which of the noise management plans it was intended to rely on.

[5]  Eventually the applicant’s solicitors contacted Mr Winders directly and advised the points of disagreement, which were extensive, in relation to the plan prepared by Mr Winders’ firm. There followed a period during which there seems to have been no communication between the parties or their solicitors until the appointment of new solicitors for the respondents.

[6]  Mr Thorne, having had his services terminated by the first respondent, was then retained by the applicant Council and his noise management plan was developed in consultation with Mr Rumble for the purpose of noise regulation on the Raceway.

[7]  In July 2004 an application was brought by the Council at which directions were made as to the delivery of the plan prepared by Mr Thorne in consultation with Mr Rumble, the Council’s acoustics consultant, which was delivered on 13 August in accordance with the order. On 20 September 2004, six matters were raised by the respondents which have been addressed in the order made on 5 October 2004 by way of an arrangement for further review, by which the parties are allowed to bring the matter back before the Court should the Council or the respondents fail to act reasonably in the performance of their obligations under the noise management plan. Mr Litster contends that the matters constitute a confined scope of dispute which should not have required the Council having to go to the effort of doing all that it has done to bring the matter to finality.

[8]  In particular, Mr Litster complains that the Council has been required to take upon itself, because of breaches of the order made on 10 November 2003, the obligation of preparing the noise management plan. Despite being told that Mr Winders would prepare such a plan, the Council still has not been provided with it. Mr Litster contends that the respondents have not engaged in a bona fide manner in dealing with matters pursuant to court orders. They have failed to file material and have failed to engage in the debate in the way that the court orders contemplated. This has resulted in a drawn out process where the Council has been required to drag the respondents to court on several occasions and file extensive material at significant cost to the Council. In short, Mr Litster submits that the respondents have conducted themselves in a manner which is frivolous and vexatious.

[9]  Mr Gore QC, Senior Counsel for the respondents, resists the application on two bases. Firstly, that the jurisdictional threshold has not been satisfied and secondly, even if it has, in the exercise of my discretion, costs should not be ordered.

[10]It was pointed out by Mr Gore that the orders made on 10 November 2003 specified 15 business days for the provision of a draft noise management plan. This was provided by Max Winders & Associates within the time provided under the order on behalf of the first respondent. Also on 28 November 2003 another draft noise management plan was provided, this having been prepared by Noise Measurement Services with whom Mr Thorne is associated. The latter, prepared on behalf of the first and fourth respondents, was delivered within the time permitted to the Council but not brought to the attention of the Council’s solicitors until a week or so later.

[11]On 19 December 2003 the Council, pursuant to the court’s order, notified points of disagreement with the draft management plan prepared by Max Winders & Associates. Mr Gore submits, correctly in my view, that whether these points were extensive or sound is not fairly open to be determined on this application. I note that there was disagreement with them, dealt with in subsequent correspondence.

[12]On 8 November 2004 the solicitors for the Council were notified that Mr Gore’s instructing solicitors were now acting for at least the first three respondents. On 19 May 2004 the solicitors for the Council delivered a noise management plan. This, in the opinion of Mr Winders and the respondents, was unsatisfactory, it being said that its terms were overly subjective, particularly in respect of tonal characteristics and that it was very prescriptive and imposed upon the respondents unreasonably strict requirements.

[13]My attention was drawn to a letter of 21 May 2004 in which the solicitors for the respondents, in effect, challenged the Council’s entitlement to depart from the order made by this court on 10 November 2003 and to itself prepare a noise management plan. The letter purported to note that the noise management plan was dated 27 February 2004 but it was not provided to the respondents until 19 May 2004, accompanied with an unexplained claim that response to it was urgent.

[14]On 23 July 2004, against the background of what Mr Gore described as an impasse that had occurred between the solicitors, this court ordered that the Council provide to the respondents the noise management plan upon which it intended to rely by a specified date in August 2004. On 13 August 2004 the Council then provided what Mr Gore termed its “second noise management plan”. On 20 September 2004 the solicitors for the respondents gave notice to the Council’s solicitors that the second plan was generally acceptable, subject to six identified matters.

[15]Finally, on the date of the hearing of this application, namely 5 October 2004, the Council’s second noise management plan has been agreed by the parties following modifications which were requested by the respondents. Mr Gore submits that although Mr Litster has sought to downplay the significance of those modifications, it should not be overlooked that the provision for review made in the consent orders on 5 October 2004 were provisions which had been driven by the respondents in an attempt to identify any provision within the noise management plan which involved some decision by the Council or some change to the noise management plan or to some relevant aspect of it. Each of those key provisions under the order is now open to review by this court subject to any constraints contained within the provisions themselves.

[16]Mr Gore submits that this represents a significant improvement on the structure of what had been provided for unilaterally by the Council and is responsive to the concerns raised by the solicitors for the respondents. In these circumstances it is suggested that there has been effective compliance with the procedural aspects of the orders made on 10 November 2003 and that, in any case, the order itself contemplated that points of disagreement may arise which would require the court’s resolution. The respondents submit that they have worked within the framework of the court’s orders and have ultimately reached agreement with the Council about the form of the draft noise management plan and orders that should accompany it.

[17] The power of this court to order costs is derived from s 4.1.23 of the Integrated
Planning Act 1997 which provides relevantly as follows:
“Costs

4.1.23(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 -

(a) …

(b) the court considers the proceeding (or part of the proceeding) to

have been frivolous or vexatious;

…”

[18]In Mudie v Gainriver Pty Ltd & Anor (2002) 124 LGERA 393 McMurdo P and Atkinson J, in considering the power of this court under s 7.6 of the Local Government (Planning and Environment) Act 1990 to order costs where it considers the proceedings to have been frivolous or vexatious stated that:

“The words ‘frivolous’ or ‘vexatious’ are not defined in the Act and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or stay proceedings for an abuse of process. By the time an application for costs is made, the court knows the issues which have been litigated whilst in an interlocutory application, the court must to some extent speculate and must necessarily be cautious to ensure a deserving claimant is not unjustly deprived of the opportunity of a trial of the action. In The Macquarie Dictionary [Federation edition, 2001] defines ‘frivolous’ as ‘of

little or no weight, worth or importance; not worthy of serious notice; a

frivolous objection. 2. characterised by lack of seriousness or sense;
frivolous conduct…’ and ‘vexatious’ as ‘1. causing vexation; vexing;
annoying…’.
Unquestionably, something much more than lack of success needs to be shown
before a party’s proceedings are frivolous or vexatious. Although in a
different context, some assistance can be gained from the discussion of the
meaning of these words in Oceanic Sunline Special Shipping Company Inc v
Fay (1988) 165 CLR 197 at 247 where Deane J states that ‘oppressive’ means
seriously and unfairly burdensome, prejudicial or damaging and ‘vexatious’
means productive of serious and unjustified trouble and harassment, meanings
apparently approved by Mason CJ, Deane, Dawson and Gaudron JJ in Voth v
Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. Those meanings are
apposite here.
Whether proceedings are vexatious or oppressive will turn on the
circumstances of the case and will include public policy considerations and the

interests of justice.” (At 405, 406).

[19] Williams JA, in the same case at 413, stated that:

“A developer and local authority clearly produce unjustified trouble and harassment when they resist in court the setting aside of void decisions and seek to justify unlawful conduct on wholly unmeritorious grounds. Such resistance would, in ordinary parlance, be described as ‘frivolous and vexatious’.”

[20]I note that in Mudie serious breaches of a development permit had been committed which were not the result of a reasonable mistake and in respect of which a strong inference arose that private gain was involved. In the present application the respondents have not resisted any application by the Council for enforcement orders, nor can it be fairly said that their non-compliance with the orders of 10 November 2003 was obvious or vivid or that their attempts to comply with the orders were desultory and evasive. Thus, the present situation bears little resemblance to that in the case of Gold Coast City Council v Metrostar Pty Ltd & Ors [2004] QPEC 029 where resistance to the council’s application for enforcement orders was seen as unjustified and without substance and thus frivolous and vexatious within the meaning of the Oceanic test.

[21]I am not persuaded that the present circumstances should be considered as amounting to an unwarranted attempt to avoid the likely consequences of serious and flagrant non-compliance with the orders of 10 November 2003. The conduct of the respondents, while not, perhaps, exemplary prior to the change of solicitors, does not, in my view, enable a conclusion to be drawn that their response to the earlier Court orders has been frivolous and vexatious.

[22] The application for costs is, for these reasons, refused.

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