Gympie Regional Council v Tregoning - [2017] QPEC 20

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Gympie Regional Council v Tregoning [2017] QPEC 20

PARTIES:

GYMPIE REGIONAL COUNCIL
(applicant)

v

OWEN ROY TREGONING
(respondent)

FILE NO/S:

D109/2016

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

4 April 2017

DELIVERED AT:

Maroochydore

HEARING DATE:

9 December 2016

JUDGE:

Long SC, DCJ

ORDER:

The respondent is to pay the applicant’s costs of the application filed on 18 August 2016, including investigation costs, as agreed or as assessed on the standard basis pursuant to Chapter 17A, Part 3 of the Uniform Civil Procedure Rules 1999 and as if this was an order of the District Court, except:

(a) for the costs of appearance in the Court on 23 September 2016; and

(b) that after 23 September 2016, that be as to only 50% of such costs.

CATCHWORDS:

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – COSTS – Where the applicant filed an application for enforcement orders pursuant to s 604 of the Sustainable Planning Act 2009 in respect of the respondent’s use of land – Where the primary focus of the application moved from contentions as to the past illegal use of the land and to the issue as to the regularisation of the present and future use of the land by the respondent by establishment of a dwelling house – Where the application was determined by orders made on final terms on 9 December 2016 – Where the applicant made an application for costs of the application for enforcement order, including investigation costs – Whether the respondent acted unreasonably leading up to and in the proceedings – Whether the respondent participated in the proceedings without reasonable prospects of success or on a limited basis – Whether the respondent failed to comply with interim orders made on 30 September 2016 and 4 November 2016 – Whether the applicant is entitled to the effect of costs following the event pursuant to s 457(9) of the Sustainable Planning Act 2009, or are there circumstances such as mixed success on issues as to warrant departure from that rule

LEGISLATION:

Sustainable Planning Act 2009; ss 7(e); 10(1); 456; 457(1); 457(2)(a); 457(2)(d); 457(6); 457(6)(d); 457(7); 457(15); 578; 578(1); 582; 601; 601(1)(a); 603; 604

Uniform Civil Procedure Rules 1999; 681

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44

Interchase Corporation Ltd (in liq) v Grosvenor Hill Qld Pty Ltd (no 3) [2003] 1 Qd R 26

Latoudis v Casey (1990) 170 CLR 534

Mudie v Gainriver [2002] 2 Qd R 53

Oshlack v Richmond River Council (1998) 193 CLR 72

Paroz v Paroz [2010] QSC 157

Warringah Shire Council v Sedevic (1987) 10 NSWLR 336

SOLICITORS:

Thomsen Geer for the Applicant

Introduction

On 18 August 2016, the applicant Council filed an application for enforcement orders pursuant to s 604 of the Sustainable Planning Act 2009 (“SPA”), in respect of the respondent’s use of land situated at 530 Kandanga Imbil Road,…

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: [2017] QPEC 20
Decision Date: 4 April 2017

CaseChat Overview and Summary

Gympie Regional Council initiated legal proceedings against the respondent, Tregoning, seeking enforcement orders in accordance with section 604 of the Sustainable Planning Act 2009. The case centred on Tregoning's alleged illegal use of land and the Council's efforts to regularise the current and future use of the land, specifically regarding the establishment of a dwelling house. The application was finalised with orders on 9 December 2016. Following the conclusion of the proceedings, the Council applied for costs, including investigation expenses, asserting that Tregoning had acted unreasonably, participated without reasonable prospects of success or on a limited basis, and failed to comply with interim orders.

The court had to determine whether the respondent’s conduct justified the imposition of costs, whether Tregoning participated in the proceedings without reasonable prospects of success or on a limited basis, and whether Tregoning failed to comply with the interim orders issued on 30 September 2016 and 4 November 2016. Additionally, the court needed to decide if the Council was entitled to the effect of costs following the event under section 457(9) of the Sustainable Planning Act 2009, or if there were circumstances, such as mixed success on issues, that warranted a departure from this rule.

The court found that Tregoning had acted unreasonably and participated in the proceedings without reasonable prospects of success. It also found that Tregoning failed to comply with the interim orders. Consequently, the court ruled that the Council was entitled to the costs of the application filed on 18 August 2016, including investigation costs. However, the costs of appearance in the Court on 23 September 2016 were excluded from this order, and for costs incurred after 23 September 2016, only 50% of such costs were to be borne by Tregoning. The court made this decision in accordance with Chapter 17A, Part 3 of the Uniform Civil Procedure Rules 1999, treating the order as if it was an order of the District Court.

Orders

Orders of the court

The respondent is to pay the applicant’s costs of the application filed on 18 August 2016, including investigation costs, as agreed or as assessed on the standard basis pursuant to Chapter 17A, Part 3 of the Uniform Civil Procedure Rules 1999 and as if this was an order of the District Court, except:

(a) for the costs of appearance in the Court on 23 September 2016; and

(b) that after 23 September 2016, that be as to only 50% of such costs.

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 Tregoning [2017] QPEC 20
PARTIES:	GYMPIE REGIONAL COUNCIL (applicant) v OWEN ROY TREGONING (respondent)
FILE NO/S:	D109/2016
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING COURT:	Planning and Environment Court, Maroochydore
DELIVERED ON:	4 April 2017
DELIVERED AT:	Maroochydore
HEARING DATE:	9 December 2016
JUDGE:	Long SC, DCJ
ORDER:	The respondent is to pay the applicant’s costs of the application filed on 18 August 2016, including investigation costs, as agreed or as assessed on the standard basis pursuant to Chapter 17A, Part 3 of the Uniform Civil Procedure Rules 1999 and as if this was an order of the District Court, except: (a) for the costs of appearance in the Court on 23 September 2016; and (b) that after 23 September 2016, that be as to only 50% of such costs.
CATCHWORDS:	ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – COSTS – Where the applicant filed an application for enforcement orders pursuant to s 604 of the Sustainable Planning Act 2009 in respect of the respondent’s use of land – Where the primary focus of the application moved from contentions as to the past illegal use of the land and to the issue as to the regularisation of the present and future use of the land by the respondent by establishment of a dwelling house – Where the application was determined by orders made on final terms on 9 December 2016 – Where the applicant made an application for costs of the application for enforcement order, including investigation costs – Whether the respondent acted unreasonably leading up to and in the proceedings – Whether the respondent participated in the proceedings without reasonable prospects of success or on a limited basis – Whether the respondent failed to comply with interim orders made on 30 September 2016 and 4 November 2016 – Whether the applicant is entitled to the effect of costs following the event pursuant to s 457(9) of the Sustainable Planning Act 2009, or are there circumstances such as mixed success on issues as to warrant departure from that rule
LEGISLATION:	Sustainable Planning Act 2009; ss 7(e); 10(1); 456; 457(1); 457(2)(a); 457(2)(d); 457(6); 457(6)(d); 457(7); 457(15); 578; 578(1); 582; 601; 601(1)(a); 603; 604 Uniform Civil Procedure Rules 1999; 681
CASES:	AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44 Interchase Corporation Ltd (in liq) v Grosvenor Hill Qld Pty Ltd (no 3) [2003] 1 Qd R 26 Latoudis v Casey (1990) 170 CLR 534 Mudie v Gainriver [2002] 2 Qd R 53 Oshlack v Richmond River Council (1998) 193 CLR 72 Paroz v Paroz [2010] QSC 157 Warringah Shire Council v Sedevic (1987) 10 NSWLR 336
SOLICITORS:	Thomsen Geer for the Applicant