Hall v Nanango Shire Council (No 2)

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Hall & Ors v. Nanango Shire Council & Ors (No. 2) [2005] QPEC 105
PARTIES:	KATHRYN A HALL (AKA CRAWFORD) GLORIA FRANCES ANDERSON BEVERLEY JOY ANDERSON RAE BROUGHAM BERNARD WILLIAM O’CONNELL ROSLYN ANNE O’CONNELL JAMES BARCLAY AND LYNETTE BARCLAY

Appellants

(Respondents)

v

NANANGO SHIRE COUNCIL

Respondent

And

RONALD THOMAS CULLEN AND

VICKI KATHLEEN CULLEN

Co-Respondents

(Applicants)

And

STATE OF QUEENSLAND

Co-Respondent by Election

FILE NO/S:	No. BD 238 of 2005
DIVISION:
PROCEEDING:	Application for Costs
ORIGINATING  COURT:	Planning and Environment Court
DELIVERED ON:	28 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	20 September 2005
JUDGE:	McLauchlan QC DCJ
ORDER:	Appellants to pay one half of costs of co-respondents in calling expert witnesses in the appeal.
CATCHWORDS:	Section 4.1.23(2)(b) Integrated Planning Act 1997; whether appeal frivolous or vexatious.
COUNSEL:	Mr Everson for the Applicants Mr Houston for the Respondents
SOLICITORS:	Condon Charles for the Applicants

1. On 22 September, 2004, the respondent approved a development application by the co-respondents for a material change of use, consisting of a substantial expansion of a feedlot known as the “Nooroomba Feed Lot” on Maidenwell-Bunya Mountains Road Nanango. An appeal against this decision was dismissed by this court on 19 May,2005. The appeal involved a number of issues, including impacts of the proposed development with respect to traffic odour and water supply. The co- respondents, relying on s. 4.1.23(2)(b) of the Integrated Planning Act 1997, now apply for costs against the appellants on these issues, on the standard basis, including the obtaining of reports from the relevant experts, and securing their attendance at the hearing of the appeal.

2. The Department of Main Roads and the Department of Primary Industries were concurrence agencies with respect to the co-respondents’ development application, and the application was approved by the respondent subject to various conditions, including conditions imposed by those 2 departments.

3. Orders were made by Wilson DCJ on 28 January 2005 and 11 March 2005 with respect to various matters, including the exchange of experts’ reports. By the second order, reports were to be exchanged on or before 24 March 2005, and the matter was listed for hearing on and from 18 April 2005. In fact, the co-respondents’ reports, relating to the above issues were provided to the appellants on 14 April, a few days before the hearing of the appeal began. In my opinion, the contents of those reports were such as to alert the appellants that the very general grounds upon which they relied with respect to those issues could not reasonably be sustained in the appeal.

4. The co-respondents’ solicitors asked the appellants on 7 March 2005, whether it was the intention of the appellants to exchange experts reports on that day. The response, on the same date, was in the negative, as the appellants would be relying on “research and long term local knowledge for the appeal”. This evoked a further response from the solicitors that if the appellants proceeded with the appeal, an application would be made for…