M2 Property Group Pty Ltd v Gold Coast City Council

[2005] QPEC 117

[2005] QPEC 117

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 56 of 2005 (Southport)

M2 PROPERTY GROUP PTY LTD  Appellant

and

GOLD COAST CITY COUNCIL  Respondent

BRISBANE

..DATE 01/12/2005

ORDER

HIS HONOUR:  The appellant applies for an order that the respondent pay its costs of an appeal which, it accepts, ought be dismissed on the limited ground that the decision stage has not yet been reached.

The appeal was filed on the 2nd of February 2005 and was against conditions imposed on a purported approval of an apartment building development.  It would appear that, at least at that stage, both parties were acting on the assumption that there was a valid decision with respect to the application.

In paragraph 8 of the notice of appeal it was alleged that the respondent's decision to impose a certain condition in relation to infrastructure charges was unlawful and ought be struck out:

"As the policies and the infrastructure charges, the subject of condition 23 were not adopted by the council or implemented as at the date on which the application was lodged and/or as at the date the application reached the decision stage pursuant to section 3.5.1 of the IPA."

On 8 April 2005 it was ordered that that issue be determined as a preliminary point and directions were made with respect to disclosure and the exchange of affidavit material and outlines of argument in relation to that issue.  Paragraph 8 of the notice of appeal made it relevant to determine the date the application reached the decision stage.

Upon the exchange of outlines of argument, in accordance with the Court's directions, it became apparent that the council contended that the application had not yet reached the decision stage, for reasons which included that an acknowledgement notice had been required, but not given. 

As the outline records, both parties had proceeded on the mistaken basis that no acknowledgement notice was required.  The submission went on to deal with the consequences of that mistake.  The submission of the appellant had, on the other hand, asserted that no acknowledgement notice was required.

It appears that upon the exchange of the outlines there was some discussion between senior counsel for the respective parties and it was agreed that, in light of that issue, the preliminary hearing should not continue on the date it was set down.  The appellant now accepts the consequence of the point is that the appeal should be dismissed on the limited ground stated.

The appellant applies for costs of the appeal effectively on the basis that those costs would not have been incurred had the council earlier identified the procedural difficulty in the processing of the application. 

The Integrated Planning Act provides that each party to a proceeding must bear the party's own costs for the proceeding. However, pursuant to subsection 2, the Court has a discretion to order costs in a limited number of specified circumstances.

The appellant's application relies on subparagraphs (d), (i) and (f) of section 4.1.23(2) which provide as follows:

"(d)a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;

(f)without limiting (d), a party has incurred costs because another party has introduced (or sought to introduce) new material; and

(i)an applicant, submitter, referral agency, assessment manager or Local Government does not properly discharge its responsibilities in the proceedings."

As Mr Hinson SC submitted, paragraph (d) relates to costs incurred because of the need to apply for an adjournment.  That provision would not justify an order that the whole of the appellant's costs of the appeal be paid.  Mr Hinson also points out that the costs must be incurred because of the conduct of another party.  I will return to that point a little later.

Subparagraph (f) deals with costs incurred by reason of the introduction of "new material".  The solicitor for the appellant identified the new material as being the contents of the respondent's outline of argument.  I do not consider that to be "new material" for the purposes of the section. 

The appellant placed reliance on the decision of this Court in Burdekin Shire Council v. Pioneer Sugar Mills and the State of Queensland 2004 QPEC 28.  The new material of relevance in that case is referred to in paragraph 16 of the judgment which reads as follows:

"As to subsection (2)(f), the affidavits in support of DMR's application make it clear it seeks to introduce traffic evidence in relation to the impacts of Pioneer's use of the siding on the safety and efficiency of a nearby major road.  DMR joined, and then withdrew from the proceedings.  Had it remained an active party, the evidence it now seeks to put before the Court could have been provided at a much earlier time without disruption of the proceedings.  DMR has, then, sought to introduce new material and although it did not, technically, do so at a time when it was a party, it now occupies that position and persists with that plan."

The new material, in that case, was constituted by the introduction of traffic engineering evidence. 

In my view, the making of a submission as to a jurisdictional issue arising on the material before the Court does not constitute the introduction of "new material".

Subparagraph (i) relates to a party not properly discharging its responsibilities in the proceedings.  As the solicitor for the appellant points out, that ought be interpreted as being a wider concept than simply a default in the Court's procedural requirements, which is dealt with under a different subparagraph.  It might be accepted that a local Government has, at least in a general sense, a responsibility in a proceeding to promptly draw to the attention of the other parties and the Court, an issue of which it becomes aware relating to the jurisdiction of the Court to entertain the appeal.  However, the material does not support the conclusion that the local government simply sat on its hands in this matter.  It appears to be a situation where both parties acted in ignorance of the point for a very considerable period of time.  The reference to the factual basis upon which the submission was later made is contained in the affidavit of Mr Sharp which was filed on the 28th of June 2005.

It would seem that in investigating the issue set down for determination, which required the identification of the date that the decision stage commenced, the relevant factual matters have been investigated and the legal team engaged by the respondent has come to realise the legal consequences of those facts, which were then raised in the outline.  There does not appear to have been any undue delay in terms of the point being raised once it was realised.

Accordingly, I am not satisfied that the local government has failed to properly discharge its responsibilities in the proceedings.

For similar reasons, I am satisfied that I ought not make an order for costs in the exercise of discretion, even with respect to the costs of the adjournment which might otherwise be within jurisdiction under subparagraph (d).  The Council's conduct in this case would appear to be consistent with a proper examination of the facts and the proper and reasonably prompt raising of a jurisdictional issue, once identified.

Whilst it is unfortunate that neither side recognised the issue at an earlier time, and whilst costs have doubtless been incurred on both sides as a consequence, I would not, as a matter of discretion, order costs even if the jurisdiction were enlivened pursuant to subsection (d) or, indeed, even if the jurisdiction were enlivened under the other subsections relied upon by the appellant.

Accordingly, I dismiss the application for costs and I dismiss the appeal on the limited ground that the decision stage has yet to commence.

...

‑‑‑‑‑