Gympie Regional Council v Atthow - [2019] QPEC 23

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Gympie Regional Council v Atthow & Ors [2019] QPEC 23

PARTIES:

GYMPIE REGIONAL COUNCIL

(applicant)

v

LANCE ATTHOW

(first respondent)

BELLA CREEK MULTI SPORTS PARK LIMITED (ABN 65602397937)

(second respondent)

EVELYN ATTHOW

(third respondent)

SCOTT CANTY

(fourth respondent)

and

LISA CANTY

(fifth respondent)

FILE NO/S:

D26 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Application in pending proceedings

ORIGINATING COURT:

Planning and Environment Court at Maroochydore

DELIVERED ON:

24 May 2019

DELIVERED AT:

Maroochydore

HEARING DATES:

20 April 2018 and 10 May 2019 (otherwise determined on written submissions)

JUDGE:

Long SC DCJ

ORDER:

The respondents are to pay the applicant’s costs of the originating application filed on 3 March 2017 and the application in pending proceedings filed on 17 April 2018. 1.

The costs of the originating application filed on 3 March 2017 are to include the amount of $1,182.50 in investigation costs. 2.

If not otherwise agreed, the costs of each application are to be decided in accordance with Part 3 of Chapter 17A of the Uniform Civil Procedure Rules 1999 and assessed upon the standard basis in accordance with rule 702 of those rules.3.

CATCHWORDS:

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – COSTS – Where the applicant filed an application for various declarations and consequential enforcement orders pursuant to s 604 Sustainable Planning Act 2009 in respect of the respondents’ use of land – Where the application was determined by orders made, with consent, on 21 April 2017 – Where the applicant made an application for costs of the application and for assessment on the indemnity basis in accordance with the Uniform Civil Procedure Rules 1999, including investigation costs – Whether the applicant is entitled to costs and assessment on the indemnity basis – Whether the applicant is entitled to investigation costs

LEGISLATION:

Planning Act 2016 ss 311
Planning and Environment Court Rules 2010 r 3(2)
Sustainable Planning Act 2009 ss 450, 456, 457, 578, 582, 601, 604, 605
Uniform Civil Procedure Rules 1999 rr 702, 703

CASES:

Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor [2018] QPEC 52
Gympie Regional Council v Pye (2017) QPELR 109
Gympie Regional Council v Tregoning (2017) QPELR 458
Paroz v Paroz & Ors (No 2) [2010] QSC 157

SOLICITORS:

p&e Law for the applicant

Andrew Morris Legal Practice for the respondents

On 21 April 2017 and upon an originating application filed on 3 March 2017, declarations were made by this court, in the following terms:

“It is declared that:
1. The use of land located at Bella Creek Road, Bella Creek and more particularly described as Lot 764 on CP L37551, Lot 16 on RP 841632 and Lot 14 on CP LX 1131 (the land) for the purpose of Motor Sport Facility and Tourist Park as defined under Schedule 1 of the Gympie Regional Council Planning Scheme 2013 is assessable development for which a development permit is required.
2.The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QPEC 23
Decision Date: 24 May 2019

CaseChat Overview and Summary

In the case of Gympie Regional Council versus Atthow, the Gympie Regional Council sought various declarations and enforcement orders concerning the respondents' use of land. The application was lodged under section 604 of the Sustainable Planning Act 2009 and was subsequently determined through orders made by consent on 21 April 2017. The Council later made an application for costs associated with both the originating application filed on 3 March 2017 and an application in pending proceedings filed on 17 April 2018. The Council sought these costs to be assessed on the indemnity basis, in line with the Uniform Civil Procedure Rules 1999, including the inclusion of investigation costs.

The primary legal issues before the court were whether the Council was entitled to costs for the proceedings and whether it was entitled to be assessed on an indemnity basis. Additionally, the court had to determine if the Council was eligible for reimbursement of investigation costs. These issues required careful consideration of the statutory provisions and the rules governing costs in civil proceedings.

The court ruled that the Gympie Regional Council was entitled to the costs of the originating application and the subsequent application in the pending proceedings. The court also determined that the costs should include $1,182.50 for investigation costs. The court's decision was grounded in the provisions of the Uniform Civil Procedure Rules 1999, which allow for the assessment of costs on the indemnity basis in cases where the applicant has been successful. The court concluded that the Council's application for costs, including investigation costs, was justified based on the statutory and procedural entitlements outlined in the rules.

In conclusion, the court ordered that the respondents were to pay the Gympie Regional Council’s costs for both the originating application and the application in pending proceedings, with the inclusion of $1,182.50 for investigation costs. The court mandated that, unless otherwise agreed, the costs of each application would be decided in accordance with Part 3 of Chapter 17A of the Uniform Civil Procedure Rules 1999 and assessed on the standard basis as per rule 702 of those rules.

Orders

Orders of the court

The respondents are to pay the applicant’s costs of the originating application filed on 3 March 2017 and the application in pending proceedings filed on 17 April 2018. 1.

The costs of the originating application filed on 3 March 2017 are to include the amount of $1,182.50 in investigation costs. 2.

If not otherwise agreed, the costs of each application are to be decided in accordance with Part 3 of Chapter 17A of the Uniform Civil Procedure Rules 1999 and assessed upon the standard basis in accordance with rule 702 of those rules.3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gympie Regional Council v Atthow & Ors [2019] QPEC 23
PARTIES:	GYMPIE REGIONAL COUNCIL (applicant) v LANCE ATTHOW (first respondent) BELLA CREEK MULTI SPORTS PARK LIMITED (ABN 65602397937) (second respondent) EVELYN ATTHOW (third respondent) SCOTT CANTY (fourth respondent) and LISA CANTY (fifth respondent)
FILE NO/S:	D26 of 2017
DIVISION:	Planning and Environment
PROCEEDING:	Application in pending proceedings
ORIGINATING COURT:	Planning and Environment Court at Maroochydore
DELIVERED ON:	24 May 2019
DELIVERED AT:	Maroochydore
HEARING DATES:	20 April 2018 and 10 May 2019 (otherwise determined on written submissions)
JUDGE:	Long SC DCJ
ORDER:	The respondents are to pay the applicant’s costs of the originating application filed on 3 March 2017 and the application in pending proceedings filed on 17 April 2018. 1. The costs of the originating application filed on 3 March 2017 are to include the amount of $1,182.50 in investigation costs. 2. If not otherwise agreed, the costs of each application are to be decided in accordance with Part 3 of Chapter 17A of the Uniform Civil Procedure Rules 1999 and assessed upon the standard basis in accordance with rule 702 of those rules.3.
CATCHWORDS:	ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – COSTS – Where the applicant filed an application for various declarations and consequential enforcement orders pursuant to s 604 Sustainable Planning Act 2009 in respect of the respondents’ use of land – Where the application was determined by orders made, with consent, on 21 April 2017 – Where the applicant made an application for costs of the application and for assessment on the indemnity basis in accordance with the Uniform Civil Procedure Rules 1999, including investigation costs – Whether the applicant is entitled to costs and assessment on the indemnity basis – Whether the applicant is entitled to investigation costs
LEGISLATION:	Planning Act 2016 ss 311 Planning and Environment Court Rules 2010 r 3(2) Sustainable Planning Act 2009 ss 450, 456, 457, 578, 582, 601, 604, 605 Uniform Civil Procedure Rules 1999 rr 702, 703
CASES:	Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor [2018] QPEC 52 Gympie Regional Council v Pye (2017) QPELR 109 Gympie Regional Council v Tregoning (2017) QPELR 458 Paroz v Paroz & Ors (No 2) [2010] QSC 157
SOLICITORS:	p&e Law for the applicant Andrew Morris Legal Practice for the respondents