Jeteld Pty Ltd v Toowoomba Regional Council

[2009] QPEC 64

[2009] QPEC 64

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

Appeal No 3263 of 2008

JETELD PTY LTD ACN 009 904 456	Applicant
and
TOOWOOMBA REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 24/07/2009

JUDGMENT

CATCHWORDS: Integrated Planning Act 1997 s 4.1.23(2)(f) - Uniform Civil Procedure Rules - application by appellant developer in conditions appeal to amend notice of appeal to cover additional condition - whether appellant should pay costs - whether UCPR provisions available to support a costs order

HIS HONOUR:  There is an application before the Court by the

appellant, the developer, to amend its Notice of Appeal.

Although the original Notice of Appeal, which is against

conditions of the Council approval of a 99 lot residential

subdivision raises other issues, the Court's told that what

remains contentious boils down to what the appellant may be

required to construct at its cost by way of external water supply works to effect a connection to the Council's water reticulation system.  The appellant was hopeful that, for the purpose of providing reconnection for its subdivision, a pipe of 150 millimetres diameter would be sufficient.  For obvious

reasons, the developer was resistant to Council's suggestions

- or requirements - that a 350 millimetre diameter facility or

even a 450 millimetre diameter facility was appropriate, the

cost of which was bound to be higher.

At a meeting of experts, being Dr Johnson engaged by the

appellant, and Mr Gray engaged by the Council, it appears to

have been agreed that, to service the proposed residential

estate, a 250 millimetre pipe would be appropriate.  That

apparent concession by Dr Johnson raises issues of its own and

Mr Connor circumspectly suggests that the apparent agreement

may have been based on some erroneous calculation.

There's placed before the Court-----

MR CONNOR:  Excuse me, your Honour.  Just - because I'm very
sensitive-----

HIS HONOUR:  Yes.

MR CONNOR:  -----I think what I said - I gave the example of
the calculation.

HIS HONOUR:  Yes.

MR CONNOR:  But I think the best I'd like to put it was is that there may be an error.

HIS HONOUR:  I'll ask the reporters to transcribe your
intervention.

MR CONNOR:  Thank you, your Honour.

HIS HONOUR:  It's not for the first time you've been very
careful or subtle, Mr Connor, but-----

MR CONNOR:  Thank you.

HIS HONOUR:  -----I don't want to put words in your mouth you
didn't use.

There is placed before the Court an e-mail of Dr Johnson's,

of very recent date, indicating a view that a 200 millimetre main might be appropriate.  Mr Connor doesn't wish to put matters any higher than possibilities at this stage.  He wants the opportunity to pursue things further, with a view to possibly filing an application in the court which might seek relief against constraints on what experts may present in light of existing directions.  If there is such an application, it should be returnable on the date to which this appeal is adjourned.

MR TRANTER:  Is that for mention, your Honour, or for hearing?

HIS HONOUR:  What will be heard then is whether Dr Johnson will have a second go, if he wants to.

MR CONNOR:  Yes.

HIS HONOUR:  That's really what it is.

MR CONNOR:  Yes.  It may well be that Mr Tranter opposes an
application which is made by me for leave for there to be a
further meeting between these experts to discuss the issues,
which they seem to have agreed upon.

HIS HONOUR:  So maybe that's what we're fighting about next
week then, whether the Court directs a further meeting?
MR CONNOR:  Well, at the moment-----

HIS HONOUR:  At the moment we've got a joint experts' report and you are alluding to the possibility that there's something wrong with it.

MR CONNOR:  Yes.

HIS HONOUR:  And there ought to be another one, so maybe that is the way to do it, to have the experts' report again.

MR CONNOR:  Yes.  Well, that's ultimately what I - what I
contend for.

HIS HONOUR:  Yes.

MR CONNOR:  And Mr Tranter has put it to me in correspondence
- and I accept this - "it seems that your client's experts are
now trying to re-open the experts report and findings."

HIS HONOUR:  Good.  So you accept that you might need the
Court to grant leave.  We'll make it the 5th of August.

MR CONNOR:  Yes, thank you, your Honour.

HIS HONOUR:  Mr Tranter was disinclined to consent to

amendment of the Notice of Appeal - the amendment adding

to complaints about the Council's conditions 40 to 46

inclusive, a complaint about condition 70.  He accepts that, in this appeal proceeding, which is still in its early phase, the court is likely to permit the amendment.  Speaking for myself, unless there are consequences threatening of change

to things, which in justice oughtn't to be tolerated, I think

the Court should facilitate the parties being able to present

their best case when the ultimate merits hearing comes on.  I

am comfortably satisfied that leave ought be given for the

amendment of the Notice of Appeal.

That brings us to the issue of costs, which Mr Tranter seeks

for his client.  Mr Connor asks that the matter of the

incidence of the respondent's costs of the application to
amend the Notice of Appeal should be reserved.  As a general

principle, it's unfortunate to have costs reserved in

circumstances such as the present, although less so if it's

the same Judge who will be required to make the determination.

It rather seems, from the adjournment date that's been agreed

on, that that would be the situation.  The basis of

Mr Connor's application for reservation of costs is a desire

to investigate and prepare argument in relation to the issue.

Mr Tranter may have been urging the Court to proceed on the

basis inherent in the Uniform Civil Procedure Rules, that where amendment of proceedings occurs, the party amending should pay the costs of the other parties occasioned by the amendment. He referred to a judgment in this court, which he said contained an obiter statement by a judge that, where section 4.1.23 of the Integrated Planning Act 1997 does not cover a costs situation, the UCPR may be resorted to to fill in the gap. I would require some persuading that the UCPR, although more and more frequently the basis of orders made in this court, can limit the effect of the "no costs" regime which section 4.1.23 establishes.

The task of a litigant like the Council wanting costs is to

show that a jurisdictional basis for awarding costs can be

identified by reference to the paragraphs of subsection (2).

The one requiring consideration is (f) and I quote, "Without

limiting paragraph (d) a party has incurred costs because

another party has introduced (or sought to have introduced)

new material."

There's been some time taken to consult dictionary

definitions of "material" as a noun.  Its use in this statutory context is unusual, I would venture to suggest.  Mr Connor tells the court that he reflected on the potential costs issue, which his client obviously may face, and reached the view that (f) did not apply because "material" referred to evidence, reports of experts and the like.

While that may be the meaning that first occurs to one reading

the paragraph, I do not think "material" there is limited to

evidence.  I have consulted the Oxford English Dictionary

Online entry for "material" as a noun which commences in

section B:

"1.a. Matter (not precisely characterised);  that which
      constitutes the substance of a thing;.

1.b. In pl.  The constituent, intrinsic, or essential parts
     of something.  Obs.

1.c. Text or images in printed or electronic form;  also
     with distinguishing word, as reading material, etc."

leading to

1. Facts, information, evidence, etc., on which a
        conclusion is based, of from which an idea is
        developed",

which is the meaning that, unsurprisingly, occurred to Mr Connor.

Approaching the matter from first principles, I am comfortably

persuaded that an appellant within the meaning of (f) is

introducing new material by adding to the Notice of Appeal

material of the kind sought to be added here.  The costs

discretion arises, which doesn't mean that it ought to be
exercised in favour of the Council. 

There may be much to be said for an approach that a no costs regime in the court is fair enough on the basis that litigants are allowed one go at each of the particular steps they seek to pursue, but that, if subsequent goes are needed, it's fair and reasonable that innocent parties affected should not be forced to incur additional costs which they can't recoup.

Mr Tranter points out that the appellant has all along been

aware of the significance of condition 70, which relates to

offsets which the construction of relevant works might make

available to the developer against contributions required.

The appellant's request for a negotiated decision notice of

22nd September 2008 proceeded, apropos conditions 40 and 41:

"Conditions 40 & 41

We request Council clarify whether any of the works required
by these conditions, particularly the trunk mains along
Meringandan Road and Kleinton Road, have been included in the
calculation of contributions required by Planning Scheme
Policy ADP05.  If so, we request the condition(s) be modified
to confirm that the cost of construction of the relevant works
will be offset against contributions for water supply required
by condition 70."

And apropos condition 70 itself.

"Condition 70

We request that the condition include clarification that the
cost of any relevant works required by the conditions noted
above will be offset against the contributions required by
condition 70, and that payment to the developer will be made
(or credit for future stages provided) should the value of
work performed exceed the contribution amounts required by
this approval.

Non-worsening of stormwater flows to QUDM and stormwater
quality measures to the Health Waterways standards will be
addressed within the subject land.  As such we request Council
modify the condition to remove the requirement for stormwater
management contributions where these objectives can be
achieved."

HIS HONOUR:  Condition 70 was mentioned again in the context

of sewerage reticulation in respect of condition 49.  It's

true that there will may have been reasons for condition 70

disappearing from the picture, that the extent of external works now contemplated may involve some or a larger component not attributable to the site's needs standing alone, but I sympathise with Mr Tranter's complaint that his client is now having some difficulty appreciating the case against it.  An argument which occurred to me favoured the silence of the original Notice of Appeal regarding condition 70 is that it might be seen as commendable in an appellant to limit the scope of proceedings.

In the circumstances, I am not inclined to give Mr Connor

additional time to argue this condition 70 point.  I

think it's a suitable case for acknowledging the additional

costs which the Council has had to confront by facing this

application and (very likely) having to repeat some work

already done by an order for costs.

The last matter that I mention in that regard is that there

was a suggestion that in section 4.1.23 "costs for the

proceeding" may somehow be limited to costs of the proceeding

as a whole or to costs once the proceeding has been

determined, and that may have been the basis on which there

was a suggestion that the UCPR could be resorted to.

In my opinion, the expression "for the proceeding" isn't

limited in the way that is suggested for section 4.1.23.

Indeed, scrutiny of its terms relating to adjournments and the

like indicates to me that the provision applies in respect of

costs of interlocutory applications.

The Court makes an order in terms of the initialled draft

which incorporates the leave to amend sought.

I order the respondent's costs of the application to amend the

notice of appeal assessed on the standard basis be paid by the

appellant and an adjournment to 5 August 2009.

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