Ipswich City Council v Riverside Industrial Developments Pty Ltd

[2010] QPEC 29

[2010] QPEC 29

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2981 of 2008

IPSWICH CITY COUNCIL	Applicant
and
RIVERSIDE INDUSTRIAL DEVELOPMENTS PTY LTD (ACN 106 768 772)	First Respondent
and
EMMETT HANRAHAN	Second Respondent

BRISBANE

..DATE 24/03/2010

..DAY 1

ORDER

CATCHWORDS
Sustainable Planning Act 2009 s 832(1)
Integrated Planning Act 1997 s 4.1.23(2)(d)

Council seeking enforcement orders in respect of unlawful filling - although lodgment of a development application seeking a permit to regularise the work was foreshadowed for more than a year (adjournments being sought and granted for the purpose) no application was filed until the eve of the hearing - in circumstances, council was "required" to seek an adjournment - respondents ordered to pay its costs thrown away

HIS HONOUR:  The court makes the orders sought by the applicant council which are that the originating application
be adjourned to the 24th of June 2010 for mention; that the
respondents pay the council's costs thrown away in consequence
of the adjournment, and liberty to apply.

The contentious part of that order is the one in respect of
costs.  The regime in section 4.1.23 of the Integrated
Planning Act 1997 applies in respect of costs by virtue of
section 832(1) of the Sustainable Planning Act 2009.

Paragraph(d) of section 4.1.23(2) is relied on by the council
to found the court's jurisdiction to order costs
exceptionally.  It applies where "a party has incurred costs
because the party is required to apply for an adjournment
because of the conduct of another party".

The council's argument is that it was, in the circumstances,
“required” to apply for an adjournment given the filing or the
lodgment yesterday of an application by one or both of the
respondents for a permit for operational works which would
regularise filling that has occurred, the council says
unlawfully, on a site in its local government area.

In preparation for the expected two-day hearing, I've had
occasion to read the affidavit and exhibited report of the
surveyor, Mr Halls.  If that is correct, an enormous amount of
filling has occurred on the relevant property unlawfully and
far in excess of what was justified by an approval well in the
past.

Mr Hanrahan represented the first respondent company and
himself today.  He has made clear to the Court his stance in
the matter which is that he and the company are
inappropriately being held responsible for filling that
occurred which is not their responsibility.  Some of it he
attributes to a previous owner of the site.  More of it he
attributes to filling which he tells the court was done by
State authorities in conjunction with the water pipeline that
has been constructed in recent times.

He says to the court that to the extent that he gave the State

authorities permission, that was expressly conditioned on

council requirements being satisfied.

There may be interesting arguments to be had about whether the

respondents ought to have enforcement orders made requiring

them to reinstate the site to its original or earlier

condition.  Those are not matters to be decided by the court

today.  What the council wants is some protection at the

respondents’ expense for costs which it has wasted by

preparing for hearing today, for example, by briefing

Mr Williamson to appear and perhaps by getting witnesses

ready.  In my opinion, in accordance with established

practice, the council was "required" to apply for adjournment,

given that the present proceeding may be rendered pointless if

the development application lodged yesterday should

succeed.  Indeed, it could be considered mischievous if the

council insisted on proceeding.  The situation is difficult to distinguish from one in which the respondent applied late for an adjournment, as the circumstances, triggering s 4.1.23(2)(c).

The response of a development application like yesterday's

being made when a local government brings proceedings for

enforcement orders is terribly common.  Indeed, it has been

foreshadowed that it would occur in the present context from a

very early stage.  I had occasion to make interim enforcement

orders on the 24th of October 2008.  The council's originating

application was on course to proceed to complete

determination.

There is before the court correspondence from the council to the respondents as far back as the 16th of February last year referring to an adjournment for two months until 16th of April 2009:

"to allow you to lodge your application for an operational

works permit as discussed at your meeting with council on

5 February 2009."

About this time, the respondents had engaged Perry & Morphett

Surveyors and Town Planners to prepare an application.  That

firm, on the 9th of April 2009, wrote to the council seeking

a further three months for the purposes of lodging the application.  The council, by its solicitors, acceded to the request.  It was followed by a request for a further three months from Perry & Morphett in a letter of 13th of July 2009.  The council acquiesced.  Nothing happened by way of a development application.

There doesn't appear, from the evidence before the Court, to

be any basis on which the council should realistically have

anticipated that a development application would actually be

lodged.

It's unimpressive that that occurred only yesterday on the eve

of today's hearing for which, in the circumstances, the

council was obliged to prepare on the basis that there would

be a full hearing.

Mr Hanrahan has explained away the apparent mischievousness in

this chronology of events on the basis that his consultants

have been changed in an effort to revert to a consultant who

had a longstanding involvement with the whole situation and on

the further basis that the council is said to have been

uncooperative in assisting consultants by the provision of

material that might have assisted in the preparation of a

development application.  That's all been put before the Court

on a very general basis.  I think there ought to be more

specificity if the council is said to be responsible for the

last-minute nature of what's happened.  In my opinion, it's the kind of case where their costs ought to be ordered and that's why they have been.  The jurisdiction arises, and this
is an appropriate occasion for exercising it favourably to the council.
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