Gold Coast City Council v Yeates

[2007] QPEC 7

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Gold Coast City Council v Yeates [2007] QPEC 007

PARTIES:

GOLD COAST CITY COUNCIL
 (Applicant)
v
DERICK GRAHAM YEATES
 (Respondent)

FILE NO:

18A of 2006

PROCEEDING:

Originating Application

DELIVERED ON:

1 February 2007

DELIVERED AT:

Southport

HEARING DATE:

1 February 2007

JUDGE:

C.F. Wall Q.C.

ORDER:

That the Respondent pay part of the Applicant’s costs.

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING –TOWN PLANNING – COSTS- whether resistance to application in part frivolous or vexatious – respondent ordered to pay applicant’s costs of obtaining evidence from surveyor and attendance of surveyor in court.

Legislation referred to:
Integrated Planning Act s. 4.1.23 (1) and (2) (b) , 4.1.23

Case referred to:
Mudie v Grainriver Proprietary Limited [2003] 2 Qd R 271, at 283-285.

COUNSEL:

Mr. Everson - Applicant
Mr. Campbell - Respondent

SOLICITORS:

A K Abbott and Co – Applicant
McDonald Balanda and Associates - Respondent

HIS HONOUR:  The respondent this morning consented to the relief sought by the applicant.  The application had been listed to commence this morning, and to proceed today and tomorrow.  At the review of the matter on Tuesday the 30th of January, Mr Campbell, for the respondent, said to me that he did not have instructions to call any evidence from a surveyor on the hearing of the application.  There seemed then to be no, or little dispute about the surveying evidence.

The applicant has applied under section 4.1.23(2)(b) of the Integrated Planning Act for an order that the respondent pay the applicant's costs of obtaining the evidence of a surveyor. The normal rule under section 4.1.23 is that each party to a proceeding must bear the party's own costs of the proceeding, however, there are certain circumstances where the Court may make orders for costs. One of those circumstances is where the Court considers the proceeding or part of the proceeding to have been frivolous or vexatious.

The applicant submits that that part of the proceeding whereby the defence denied that the fill was placed within 50 metres of the boundary was frivolous or vexatious, and caused the council to expend money in obtaining evidence from a surveyor to establish that the fill in question was placed within 50 metres of the site boundary.

The originating application here was filed on the 5th of January 2006.  After that was filed the council alleged that the filling of the land within 50 metres of the boundary continued, and as a result the council sought and obtained an interim enforcement order from Judge Wilson SC in this Court on the 15th of March 2006.  His Honour was not then required to make a factual determination as to the position of the boundary or the location of the fill vis-a-vis the boundary because the respondent consented to the making of an interim enforcement order without any admission of having committed the development offence alleged by the council.  The application by the council alleged the placement of fill within 50 metres of the site boundary.

In his points of defence filed on the 9th of March 2006, the respondent in paragraph 2(b) said that the placement of fill on the land was not within 50 metres of a site boundary.  This clearly put in issue the location of the fill vis-a-vis the boundary.  It is that denial which the applicant says was frivolous or vexatious, and led to the incurring of surveying expenses on its part.

In his affidavit filed on the 27th of April 2006, the respondent in paragraph 17 said, "I say that I have not at any stage placed fill on the real property greater than 500 cubic metres, or placed fill within 50 metres of the boundary of the real property other than pursuant to the permits granted by the Department of Primary Industries and/or the Department of Natural Resources."  Those permits are not in issue here.

On the 16th of January 2007, the applicant filed an affidavit by Stephen Patrick Kelly, a licensed surveyor.  A copy of that affidavit was provided to the respondent on the 16th of January 2007, the same day on which it was filed.  The applicant relies upon Exhibit SK3 to that affidavit, which is a digitised survey sketch plan which shows the location of the boundary and the constructed bund wall which is the fill which the applicant complains of.  It is clearly apparent from that sketch plan that the fill was well within 50 metres of the boundary.

The applicant tendered this morning a joint report of engineering experts, Peter Comino and Philip Bell dated the 31st of January 2007.  That report is Exhibit 1.  Mr Comino is the engineer retained by the applicant and Mr Bell is the engineer retained by the respondent.  One of the points of agreement which the two experts reached was that "the defendant - that is the respondent - has constructed a bund or levee bank within 50 metres of the boundary with frontage to Bonogin Creek.  The bund is constructed of filling materials, is about 400 metres long, and ranges in height from .5 metres to 1.5 metres.  The quality of fill is estimated, subject to survey, to be between 1200 cubic metres and 1900 cubic metres."

Mr Campbell opposes the application on the basis of a letter dated the 11th of January 2007 to the solicitors for the applicant, which is Exhibit SK2 to the affidavit of Stephen Patrick Kelly.  Mr Kelly is employed by Treasure and Associates, who are the surveyors retained by the council. That letter is written by Scott Nind, a director of Treasure and Associates, and is in the following terms:

"We refer to your instructions dated 1st December 2006 in relation to the required Identification Survey of the boundaries of Lot 2 on RP192919 and the existing "Bund Wall" generally located within Lot 2 adjacent to Bonogin Creek.

Please find attached our Survey Sketch Plan, Plan Number 8134-PSP-1(1), dated 11th January 2007 which has been completed as a preliminary submission.  We have issued this preliminary plan because information required to determine the accurate location of the original creek boundary was received by our office on Wednesday the 10th January 2007.  Hence the plan has been prepared using the following information.

1.Field survey of the top of the existing bund wall with respect to the property boundaries.

2.Digitized location of the eastern boundary of Lot 2 RP192919, being Bonogin Creek, based upon survey plan W31216.  Please note that this is a very old survey plan and the accuracy of the creek location is based upon the original draftsman's skills.

3.Digital Cadastral Data Base (DCDB), produced by the Queensland Department of Natural Resources, Mines, Energy and Water. 

Please note that due to the age of the survey plan which determined the original position of Bonogin Creek it is likely that the creek boundary position would have changed over time. 

For Treasure & Associates to determine an accurate location of the creek boundary position we will require analysis of the original survey field notes (received 10th January 2007), further site survey, review of historical aerial photographs and site inspections with senior survey officers from the Queensland Department of Natural Resources, Mines, Energy and Water.

We now await your further advice, confirming that Treasure & Associates is required to undertake the completion of these works and note that a time frame of approximately six (6) weeks would be required."

Mr Campbell submits that in view of this letter it was reasonable for the respondent to adopt the position he did in his defence.  He submits that the boundary was apparently so imprecise that it was not unreasonable for the respondent to put the applicant to proof.

In my view, the evidence is not such as to lead to any real doubt about the location of the fill being within 50 metres of the boundary.  There could never, in my view, have been any doubt that most, if not all of the fill, would clearly have been within 50 metres of the boundary, even making some allowance for some alteration over time of the boundary of the creek.

The applicant relies upon Mudie v Gainriver Pty Ltd (No.2) [2003] 2 Qd.R. 271 at pages 283-285, in support of its application for the costs of the surveyor. The following is apparent from that decision.

The awarding of costs and the determination of whether a proceeding is frivolous or vexatious involves discretionary considerations.  The normal rule is that each party to a proceeding must bear the party's own costs of the proceeding.  It is relevant as to whether there were real considerations in favour of the contention of each party.  If there were, then it would be difficult to find that the party acted in a vexatious or frivolous way.

In my view, there were not any real considerations in favour of the contention adopted by the respondent.  The words "frivolous or vexatious" should be given their ordinary meaning.  The Macquarie dictionary 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."

In my view, there was no weight at all in the contention advanced by the respondent as to the location of the fill
vis-a-vis the boundary, and it was frivolous for the respondent to contend to the contrary.  "Vexatious" has been said to mean "productive of serious and unjustified trouble and harassment".  In my view, the denial by the respondent was productive of serious and unjustified trouble and delay in the sense that it led the Council to unnecessarily expend money in relation to the surveying evidence well after the unlawfulness of his conduct would have been apparent to the respondent.  In my view that unlawfulness would have been apparent from the moment the fill was placed on the land and thereafter he persisted in defending his conduct by reference to the 50 metre limit.

Lack of success is, of course, no measure of whether a proceeding is frivolous or vexatious but, in my view, the respondent's defence on this point was, in fact, frivolous or vexatious.  The respondent, in denying the matter, in my view, acted quite unreasonably.

Once it is established that a party's conduct of the proceedings or part of the proceedings is frivolous or vexatious, there is an unfettered discretion to avoid costs.

In my view, the applicant has established that part of the proceeding has been frivolous or vexatious, namely, that part wherein the respondent denied the location of the fill vis a vis the boundary, and in those circumstances the applicant is entitled to the costs order it seeks.

I order that the respondent pay the applicant's costs of obtaining evidence from a surveyor, those costs to be assessed on the standard basis unless agreed and to include the attendance of the surveyor at Court today.

HIS HONOUR:  I make orders in terms of paragraphs 1, 2, 3 and 4 of the originating application as altered and as initialled, dated and placed with the papers.