MC Property Investments Pty Ltd v Sunshine Coast Regional Council

[2013] QPEC 39

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

MC Property Investments Pty Ltd v Sunshine Coast Regional Council [2013] QPEC 39

PARTIES:

MC PROPERTY INVESTMENTS PTY LTD

(Applicant)

and

SUNSHINE COAST REGIONAL COUNCIL

(Respondent)

FILE NO/S:

D27/2013

DIVISION:

Planning and Environment Court

PROCEEDING:

Originating Application

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

9^th August 2013

DELIVERED AT:

Maroochydore

HEARING DATE:

Written submissions received in advance from both parties.
Application heard on the papers.

JUDGE:

Robertson DCJ

ORDER:

Applicant to pay Respondents’ costs of the application including the costs application to be assessed on the standard basis

CATCHWORDS:

PLANNING AND ENVIRONMENT : where applicant unsuccessfully sought declarations that a Plan was generally in accordance with Plans associated with a 1996 rezoning of the site.

COSTS : where respondent seeks costs on an indemnity basis pursuant to the costs regime introduced by amendments to the SPA which commenced 22.11.12; where applicant was wholly unsuccessful; whether application had any reasonable prospects of success; whether application commenced in the commercial interests of applicant; proper approach to new costs regime in this Court

Legislation:

Integrated Planning Act 1997 (Qld)

Sustainable Planning Act 2009 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Cases:

Colgate-Palmolive Company and Colgate-Palmolive Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225

MCProperty Investments Pty Ltd v Sunshine Coast Regional Council [2013] QPEC 32

COUNSEL:

Mr A Sinclair for the Respondent

SOLICITORS:

R. Christoforou for the Applicant
Sunshine Coast Regional Council Legal Services

1. On 23 July 2013 I delivered judgment in which I dismissed the applicant’s application (technically applications) respectively filed on 18 February 2013 and 11 June 2013.

1. The respondent Council has applied for costs. Written submissions have been received from Mr Sinclair on behalf of the Council and Mr Christoforou on behalf of the Applicant. I have heard both parties today. There is no doubt that the cost provisions contained in s 457 of the Sustainable Planning Act 2009 (the SPA), which commenced on 22 November 2012 apply to these proceedings.

1. Section 457 of the SPA provides as follows:

“457 Costs

(1)Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court. 

(2)In making an order for costs, the court may have regard to any of the following matters –

(a)the relative success of the parties in the proceeding;

(b)the commercial interest of the parties in the proceeding;

….

(d)whether a party commenced or participated in the proceeding without reasonable prospects of success;

…

(3)Subsection (2) does not limit the matters to which the court may have regard in making an order as to costs.”

1. These cost provisions have the effect of shifting the “each party bear its own costs” philosophy behind the previous costs regimes in both the SPA and the Integrated Planning Act 1997 (the IPA), more towards the civil rules that provide that costs should ordinarily follow the event.

1. In an article published in Proctor August 2013 – Vol 33 number 7 of page 20, Mr Keith Wylie appropriately describes the present regime as representing a “middle ground” between the former provisions and the regime in the Uniform Civil Procedure Rules.

1. Section 945 of the SPA provides that the former costs provisions apply to proceedings brought before 22 November 2012.

1. With the new cost regime, parties (including local authorities) will have to give serious thought to the potential costs implications of becoming involved in proceedings in this court. The previous limited discretion to award costs, for example based on the “frivolous and vexatious” ground: 4.1.23(2) (b) of the IPA and s 457(2)(b) of the SPA prior to 22 November 2012, has widened significantly. Gone is the starting point that each party to a proceeding must bear its own costs. The starting point now is that the court has a discretion to award costs “of a proceeding or part of a proceeding, including an application in a proceeding…”. Section 457(2) of the SPA provides for 13 non exclusive matters that the court may have regard to in exercising the discretion.

1. Mr Sinclair submits that for any of three reasons Council is entitled to its costs.  He contends that Council should have its costs because the applicant failed completely in its application; had no reasonable prospects of success; and the application was made primarily for the benefit of the applicant’s commercial interests. 

1. In relation to this last point, Mr Christoforou, in his written outline, submits that there is no evidence to support Council’s argument.  This is a reference to paragraph 4 of Mr Sinclair’s submission:

“4. Commercial Interests

a.The applicant sought to avoid the costs of making a new application or making new contributions.  It was a commercial decision.  It stood to save considerably if it succeeded.

b.Some indication of the order of savings appears from the Sunshine Coast Regional Council Adopted Infrastructure Charges Resolution (NO. 3) 2011 for Showroom use is $140/m² transport, public parks and land for community facilities, water supply and sewerage networks and $10/m² for stormwater.  For the 1417m² addition proposed that would amount to $212,550.”

1. Clearly Mr Sinclair is not relying on “evidence”. He is relying on publicly available information. The applicant will have to make a development application for Material Change of Use for a “Showroom” if it decides to proceed with its plan to expand the size of the building. This would undoubtedly involve significant costs. However, it was never put to Mr Constantinides in cross-examination that, in effect, the application was made to save these costs. It is close to alleging that the application was commenced for an ulterior purpose, although to be fair to Mr Sinclair he does not invoke s 457(2)(c). I am satisfied that a development application would involve expense, and if successful, would involve infrastructure contribution conditions, so in that sense there may have been some commercial advantage to the applicant in endeavouring to circumvent the Material Change of Use approval process mandated by law. Clearly from the Explanatory Notes that accompanied the amending legislation that commenced on 22 November 2012, s 457(2)(b) of the SPA is most likely directed at the submitter appellant who is a commercial competitor of a developer with a permit however, this is not the case to reach any final conclusion on that point.

1. The other issues raised on Mr Sinclair i.e. complete lack of success and no reasonable prospects are in another category.

1. Mr Christoforou makes a rather surprising submission that Council should pay the applicant’s costs up to some unspecified point in the proceedings (presumably after Judge Griffin’s order of 12 April 2013), which provided (in part) that Council file and serve a request for particulars by 19 April 2013.  Mr Christoforou’s point seems to be that, up until that point, Council’s only concern was with the lake. 

1. That is clearly not so having regard to the material filed by both parties.

1. As I noted in my reasons for judgment, the first application filed on 18 February 2013 sought a “generally in accordance with” declaration in relation to a proposed Showroom which was to be a completely new building.  Mr Christoforou’s letter (which introduced that Plan) dated 21 November 2012, introduced the incorrect legal notion of preserved “existing use rights” over the whole of the land as a result of the 1996 re-zoning to Special Facilities Zone – Architecture and Building Gallery.  From its first response dated 27 November 2012, Council’s Planning section made it clear that such a proposal would only be considered if an application for Material Change of Use of the premises was made.  The earlier exchanges between the parties certainly focused on Council’s concern over the effect of such a development on the flood plain, but to convert that to the only issue of concern (as Mr Chistoforou seeks to do in his submission) is simply contrary to the facts. 

1. The application was filed at a time when it can be reasonably inferred that Council was still investigating the various claims made by Mr Christoforou in his correspondence about the development history of the site going back over many years.  What Mr Christoforou’s submission simply does not address is that during the course of the proceedings his client completely changed course, leading to the filing of a further application on 11 June 2013 which related to a proposal to expand an existing building and completely ignored the first plan. 

1. Mr Christoforou’s submission again does not come to grips with the true legal position of his client in relation to the 1996 re-zoning, and it seeks to reargue issues already decided against it.

1. The applicant failed to establish any pre-existing lawful use rights emanating from the re-zoning at the time of the commencement of the IPA.  It failed completely in its primary argument that the Plan referred to (incorrectly) in the second application, was “generally in accordance with” either of the Plans associated with the re-zoning.

1. In its application the applicant has been wholly unsuccessful.  As I noted in my reasons for judgment, if accepted, the applicant’s approach to town planning would lead to chaotic development.  I am also persuaded primarily for the reasons set out in my judgment (MCProperty Investments Pty Ltd v Sunshine Coast Regional Council [2013] QPEC 32), that the application for declaratory relief had no reasonable prospects of success.

1. Mr Sinclair seeks indemnity costs by reference to a number of the well known principles distilled from the authorities by Shepherd J in Colgate-Palmolive Company and Colgate-Palmolive Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225 at [24]. As his Honour notes in his judgment the “usual” course is to order costs to the successful party on a party and party basis, now referred to as the standard basis. Departure from the usual approach should only occur “as and when the justice of the case might require”, or “that there should be some special or unusual feature in the case”. Mr Sinclair refers to the “making of allegations which ought never to have been made”, and “the undue prolongation of the case by groundless contentions”, by reference to the Colgate-Palmolive principles as being applicable here.  I am not certain of what allegations he is referring to and certainly the actual hearing lasted only one day.

1. I have decided that Council is entitled to its costs on the standard basis.  I order the applicant to pay Council’s costs of an incidental to the proceedings including the costs application to be agreed or to be assessed on the standard basis.