Noosa Shire Council v. Johns & Ors
[2007] QPEC 68
•3 August 2007
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Noosa Shire Council v. Johns & Ors [2007] QPEC 068 |
PARTIES: | COUNCIL OF THE SHIRE OF NOOSA (Applicant) AND CYRIL GEORGE JOHNS (First Respondent) AND NOOSA EARTHMOVERS PTY LTD (Second Respondent) ACN 010 372 031 AND SHERRIN INVESTMENTS PTY LTD (Third Respondent) ACN 053 280 970 |
FILE NO: | Maroochydore D21 of 2007 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application |
ORIGINATING COURT: | Planning and Environment Court of Queensland, Maroochydore |
DELIVERED ON: | 3 August 2007 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 16, 17 July 2007 |
JUDGE: | Judge J.M. Robertson |
ORDER: | Application Dismissed Applicant to pay the costs of the respondents of and incidental to the proceedings incurred after 4pm on 10 July 2007 on the standard basis. |
CATCHWORDS: | Application seeking declarations; where site used for extractive industry was a pre-existing lawful use pursuant to s1.4.1 of the IPA; whether respondents can be held responsible for alleged intensification of use by a non-party; whether orders sought lack utility. Costs; s4.1.23(2)(b) and (c), meaning of word “frivolous”. Legislation: Cases Considered: |
COUNSEL: | Mr W.G. Everson for the applicant |
SOLICITORS: | Wakefield Sykes for the applicant |
INTRODUCTION
By an originating application filed 7 February 2007, the Council of the Shire of Noosa (Council) seeks a number of declarations relating to the use of lands near Lake Cooroibah. The lands are described as Lot 306 on LP MCH 1227 County of March, Parish of Noosa (Lot 306) and Lot 177 on CP M3798 County of March, Parish of Noosa (Lot 177) and have, until recent times, been part of a number of blocks in the area owned by various members of the Johns family. The first respondent Mr Cyril Johns still owns Lot 177. A number of the Johns brothers owned Lot 306 until 22 December 2006 when it was acquired by the third respondent (Sherrin Investments). Mr Cyril Johns appeared on the first day to represent himself however it was agreed by Counsel for the other parties that it was not necessary for him to take an active part in the proceedings. He was also of this view so at an early stage I permitted him to leave the bar table although he remained for some of the time as a spectator. The second respondent (Noosa Earthmovers) is the holder of a registered profit a prendre with respect to both lots which entitles it to extract sand, soil and gravel from within a licensed area depicted on both registered plans. Both Sherrin Investments and Noosa Earthmovers strenuously oppose the orders sought by Council.
THE ORDERS SOUGHT BY COUNCIL:
The application seeks the following orders:
“1. With respect to land described as Lot 306 on CP MCH 1227 County of March, Parish of Noosa (“Lot 306”) –
(a) A declaration pursuant to section 4.1.21 of the Integrated Planning Act 1997 (“IPA”) that the use made of Lot 306 constitutes use for an extractive industry as that term is defined in The Noosa Plan.
(b) A declaration pursuant to section 4.1.21 of IPA that the increase in the intensity or scale of the use being made of Lot 306 for an extractive industry is an unlawful use being contrary to The Noosa Plan.
(c) A declaration that in increasing the intensity or scale of the use of Lot 306 for an extractive industry a development offence has been committed pursuant to section 4.3.1 and 4.3.5 of IPA.
(d) An order pursuant to section 4.3.25 of IPA that the use of Lot 306 for an extractive industry contrary to The Noosa Plan cease.
(e) A declaration that the clearing of vegetation from Lot 306 constitutes operational works requiring approval from the Applicant and that as such a development offence has occurred.
(f) An order restraining the Second and Third Respondents from conducting clearing on Lot 306 pursuant to section 4.3.22(1)(a) and/or section 4.3.25 of IPA.
(g) An order that the Second and Third Respondents reinstate the unlawfully cleared vegetation pursuant to section 4.3.22(1)(a) and section 4.3.25 of IPA.2. With respect to land described as Lot 177 on CP M3798 County of March, Parish of Noosa (“Lot 177”) –
(a) A declaration pursuant to section 4.1.21 of IPA that use of Lot 177 for an extractive industry is unlawful as being contrary to The Noosa Plan.
3. Such further or other orders, including interim enforcement orders pursuant to Section 4.3.24 of IPA that this Honourable Court deems appropriate.”
RELEVENT BACKGROUND
I accept the uncontested evidence of Mr Bennet Johns (one of the previous owners of Lot 306) that sand, topsoil and gravel has been extracted from both lots since the 1950’s. Initially the intensity of extraction was very low but gradually increased over the years. I accept his uncontested evidence that the Council itself purchased materials from the early 70’s. In the 1980’s Council imposed a road maintenance levy based on the number of cubic meters extracted from the site and it is these records that lead the planner for the Council, Ms Fullarton (at paragraph 21-22 of her affidavit), to conclude that from 1986 to 30 June 1997 (the year before the Integrated Planning Act 1997 (IPA) was implemented on 30 March 1998) the average amount of materials extracted from the lots was 17,374.39m3. There is other uncontested evidence (e.g. from Mr Le Du the principal of Noosa Earthmovers and the Johns brothers) that does throw doubt on the accuracy of these estimates and I will return to that later.
Mr Le Du and his wife purchased Noosa Earthmovers in 1983 and continued to extract materials form Lot 306 until February 2006 when it entered into a contract to sell the business to Noosa Washed Sand Pty Ltd whose principal was Mr Ted Allen.
Noosa Earthmovers paid royalties to Bennet Johns based on the level of extraction and the rate increased over the years.
There is no doubt that the Council was well aware of the extractive industry business being carried on up to the introduction of the IPA both from the road maintenance fees it was receiving from the Johns brothers, and from other sources such as complaints from residents.
With the coming into force of the Environmental Protection Act 1994 (Qld) (EPA) (which commenced in March 1995) it became necessary for Noosa Earthmovers to obtain a license under that Act to conduct environmentally relevant activities. Exhibit 5 contains copies of letters from Council to the Department of Environment which show that that Department was enquiring about the quarry operations with a view to consideration of the granting of a license under the EPA. At that point (soon after the commencement of the IPA) Council officers (including the manager of planning) were of the opinion that the quarries were non-conforming uses pre-existing under the Local Government (Planning and Environment) Act which was repealed by the IPA. Under cover of Council’s letter to the Department of Environment dated 13 July 1998, it’s manager of planning attached a copy of s1.4.1 of the IPA which was then in these terms:
Lawful uses of premises protected
1.4.1(1) If immediately before the commencement of a planning instrument or an amendment of a planning instrument the use of premises was a lawful use of the premises and there has been no material change of the use since the commencement of the instrument or the amendment, neither the instrument not the amendment can-
(a) stop the use from continuing: or
(b) further regulate the use; or
(c) require the use to be changed.(2) If there has been a material change of the use of premises since the commencement of a planning instrument or an amendment of a planning instrument, any lawful use of the premises immediately before the commencement is taken to be a lawful use of the premises after the commencement—
(a) for as long as the use continues; but
(b) only to the extent the lawful use of the premises immediately before the commencement continues.
(3) Subsection (2) applies whether or not the material change of use was authorised under a development permit.
Section 1.4.1(1) is presently in these terms:
1.4.1 Lawful uses of premises on 30 March 1998
(1) To the extent an existing use of premises was lawful immediately before 30 March 1998, the use is taken to be a lawful use under this Act on 30 March 1998.
In February 2000 the EPA issued a Licence under the Act to Noosa Earthmovers to carry out extraction and screening operations using plant having a design capacity of 5000 tonnes or more but less than 100,000 tonnes per annum in relation to the part of Lot 306 covered by Lease A. An integrated authority (incorporating activities carried on on Lease C on Lot 177) was issued to Noosa Earthmovers on 31 March 2004. The EPA, as assessment manager pursuant to the Integrated Planning Regulation 1998, gave to Noosa Earthmovers at that time a development approval pursuant to s3.5.11 and 3.5.15 of the IPA.
On 27 February 2006 Noosa Earthmovers sold it’s extractive industries business to Noosa Washed Sand. The commercial agreement is not in evidence. Mr Le Du in his affidavit (paragraph 116) summarises it’s terms as:
“The terms of the contract provided inter alia:
(a) Noosa Washed Sand was to have possession of the business;(b) Noosa Washed Sand was to make periodic payment instalments over a duration of 12 months;
(c) The EPA permit would not be assigned to Noosa Washed Sand until it made the final payment; and
(d) Title in the business would not pass until final payment for the business had been made at settlement twelve (12) months post Contract.”
Dr Brown from the EPA was subpoenaed to give evidence by Council. He confirmed that in March 2006 (which I infer was around the time that Noosa Washed Sand took possession) officers from the EPA met with Mr Allen and the Le Dus to discuss a staged transfer of the approval and that in the interim Allen would be operating the site but all approvals would remain with Noosa Earthmovers. Dr Brown tentatively agreed with Mr Everson that Allen was acting as agent for Noosa Earthmovers under some contractual arrangement which he said did not concern the EPA. I will return to this issue later in my reasons.
Although not canvassed in submissions (or in cross-examination) Mr Le Du appears to be the first person to notify the EPA of possible breaches of the EPA development permit. By email dated 5 May 2006 he informed Mr Andrew Howard of the EPA in the following terms:
“I refer to our telephone conversation of yesterdays date with regard to EPA Extraction Licence No. SR 2744 and advise as follows:
As you are aware Noosa Earthmovers Pty Ltd sold their business to Mr J.E. (Ted) Allen on 27 March 2006. It is part of the conditions of our Sale Contract that until such time as full payment is received all plant and equipment, lease and licences at Johns Pit in Lake Cooroibah remain in our name. In the interim Mr Allen will operate the business in the name of Noosa Washed Sand Pty Ltd.
For your information, I will arrange for our solicitor Mr Mark Gregory of McCormick Lawyers to forward a copy of the Special Conditions in our contract pertaining to the EPA Licences.
Please be advised that I visited the Sand Pits on the Labour Day Public Holiday, Monday 1st May and viewed clearing undertaken by Mr. Allen from the entrance at the cattle grate to the private property of the Johns Family, and in particular to the first pit which is part of Lease “A” of the Extraction Licence. Extensive vegetation and tree felling has taken place to facilitate a dam and site for his new Sand Washing Plant erected on the above mentioned section of the Licence.
I again visited the pit area on Thursday 4th May and discussed with Mr Allen my concerns about his recent clearing, in particular the outcome should we experience heavy rain in the not too distant future which could result in erosion of that area and the possibility of overflow into the River system.
As the Licence remains in our name, we are concerned that we could be held liable and would appreciate you looking into the matter at the earliest.”
The Council evidence relating to increased intensity and vegetation clearing relates to later in 2006. For example, the Council ecologist Mr Neville refers to a “number of enquiries about (clearing)” that he made in 2006 but specifically refers only to an actual inspection undertaken on 2 October 2006 which establishes that clearing had taken place on Lot 306 outside the Lease A area. Mr Reynolds, the Council engineer’s evidence established a substantial increase in heavy traffic along Lake Cooroibah Road (which joins Johns Road which provides the only access to the Lots) between 25 October and 3 December 2006. A number of local residents (e.g. Mr and Mrs Earner) noticed an increase in heavy traffic from April 2006, and noticed land clearing in August/September 2006 which they had not previously noticed in their trips up the Noosa River. Importantly, their evidence is that this increased heavy vehicle activity virtually stopped at Christmas 2006.
The Council also called a number of people who purchased materials from Mr Allen in the later half of 2006. Mr Francis of Caloundra Sand and Gravel purchased 76,772.95 tonnes between 16 August 2006 and 1 December 2006 and Mr Carruthers of Carruthers Contracting purchased 35,022.55 tonnes between October and December 2006. Using the accepted conversion rate of 1.4 tonnes per cubic metre this equates to a total of 156513.7m3 in the period August to December 2006.
As well as breaching the contract with Noosa Earthmovers by undertaking activities not permitted under the EPA approval Mr Allen failed to pay instalments due under the contract and on 16 January 2007 Noosa Earthmovers re-entered into possession of the business.
On 1 June 2007, another Sherrin company purchased the business.
I am satisfied, as a direct consequence of Mr Le Du’s complaint to the EPA on 5 May 2006, it undertook an investigation which lead ultimately to the issue of an environmental protection order (EPO) to Noosa Washed Sands in December 2006. Ultimately, as a result of Noosa Earthmovers re-taking possession of the business in January 2007, and Sherrin Investments acquiring Lot 306 in December 2006, an EPO in the same terms as that issued earlier was issued to them. Exhibit 4 is a copy of the order.
Dr Brown told me that ultimately the EPA was satisfied that the respondents had satisfied the requirements of the EPO. They were so advised in a letter from the EPA dated 11 May 2007. As at the time of the hearing the EPA was negotiating with the Sherrin interests as to the terms of an appropriate Environmental Management Plan. The Sherrin companies have not carried out extractive industry on the site since receipt of a letter dated 4 June 2007 from the Shire Solicitor pending judgment in these proceedings.
THE ISSUES DISCUSSED
Although not directly conceded on Council’s behalf, Mr Everson seems to accept (as he must) that pursuant to s1.4.1 of the IPA the use of Lot 306 and lot 177 for extractive industry was a pre-existing lawful use prior to 30 March 1998. Council’s planning manager conceded as much in his letter in 1998 to the Department of Environment. Council has not sought to challenge the lawfulness of the EPA permit which goes with the land. Rather the Council’s case squarely concentrates on what it says was an increase in intensity of the use in 2006. Under the common law, and indeed under the Local Government (Planning and Environment) Act 1990, historic extractive industry operators had broad rights of expansion. The protection afforded to pre-existing lawful use operations as a result of s1.4.1 will be lost if there is a material change in the intensity or scale of a particular use: see definition of “material change of use” in s1.3.5 of the IPA. In Maroochy Shire Council v Barnes [2001] Q.P.L.E.R 475 at 482 (after referring to Norman v Gosford Shire Council (1975) 132 CLR 83; which was held to be applicable under the repealed Act by the Court of Appeal in Brisbane City Council v Bemcove Pty Ltd (1998) 104 L.E.G.R.A. 1 at 6) his Honour Judge Dodds said this at paragraph 45:
“IPA provided for a material change in the intensity or scale of a use to amount to a material change of use. Whilst providing for the continuity of existing lawful uses IPA evidently intended to include a material change in the scale or intensity of a use as triggering a requirement for assessment of the changed use under IPA.”
Once it is accepted that the use of this land was a pre-existing lawful use then unless there is a material change of use, the use of the lot for extractive industry remains lawful as a result of s1.4.1.
Despite his apparent concession to this effect, Mr Everson does, in his written submission, seem to continue to ignore (a) the development permit granted to Noosa Earthmovers by the EPA and (b) the effect of s1.4.1 in the circumstances of this case.
Doing the best I can, I think Council’s argument at it’s core is a simple one:
(a) In 2006 there was an increase in intensity of scale of extractive use and vegetation clearing which involves a “material change of use”.
(b) As such any use of the sites for this purpose is assessable development under the Council’s planning scheme.
(c) Because Noosa Washed Sands was operating as the “agent” of Noosa Earthmovers during 2006, therefore it has itself engaged in a material change of use which makes it assessable development.
The power to make declarations is discretionary. The leading authority as to the way in which the discretion should be exercised in cases such as the present is Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335. Sedevcic was applied by the New South Wales Court of Appeal in Tynam v. Meharg (1998) 101 LGERA 255. In Mudie v. Gainriver Pty Ltd & Ors [2001] QCA 382 the Court of Appeal referring to both cases at [13] said:
“The application of similar statutory powers in New South Wales when work has been performed without necessary planning approval has been considered in Tynan v. Meharg and in Warringah Shire Council v. Sedevcic. The Court’s function in determining what is to be done in such cases is to perform a balancing exercise with a view to matters of both private and public interest. It is a discretionary power. Indeed, one of the principal submissions of Mr Lyons QC, who appeared for the Council and Gainriver in this matter, is that the discretion is a broad one and it cannot be shown that his Honour erred in law in arriving at the decision he did. Certain ‘guidelines for the exercise of discretion’ were formulated by Kirby P in Sedevcic’s case, and it is enough to refer to pp 339-341 of that case and to pp 259-260 of Tynan’s case as useful checklists of points that will often need consideration in such matters. Among potentially relevant matters is that aspect of discouraging potential developers from thinking that planning requirements may lightly be disobeyed.
Also relevant to the discretion is the ‘orderly enforcement’ of a ‘public duty’ to comply with the requirements of planning laws: see Sedevcic (at 339-340; 365-366). Another way of putting this is that there is a public interest in upholding the law and seeing that it is obeyed. As Kirby P said in Sedevcic (at 340, 365), unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy.”
Also of relevance to the exercise of the discretion here are guideline 6 referred to in the judgment of Kirby P (as his Honour then was) at 340 and, by analogy, guideline 7 (p340) in the sense that here on the evidence there is no continuing intensification of the use and the consequences to the present innocent respondents of exercising the discretion in favour of the Council will be severe indeed.
It is accepted that proof of the commission of a development offence as part of declaratory relief pursuant to s 4.1.21 is to be assessed by reference to the civil standard and the test in Briginshaw v Briginshaw (1938) 60 CLR 366 per Dixon J (at 362-3); and see Caloundra City Council v Taper Pty Ltd [2003] Q.P.L.E.R. 558 at 562.
Mr Everson is probably correct when he says that pursuant to s 4.1.21 a declaration can be made that a development offence had been committed without alleging who it is that has committed the offence however, in the circumstances here it seems to be a rather unfair and confused way of pleading. Council has not joined Noosa Washed Sand as a party nor is there any suggestion that it and/or Mr Allen have been prosecuted for committing a development offence. It must follow therefore that unless the respondents have, on the evidence, done or omitted to do acts which involve them as parties to the alleged intensification of the use by Mr Allen and/or Noosa Washed Sand a declaration that Mr Allen or Noosa Washed Sand have committed development offences would (a) lack utility and/or (b) contravene procedural fairness as neither of those parties are joined in these proceedings.
Despite not calling for the business contract between Noosa Washed Sand and Noosa Earthmovers to be tendered and despite not challenging Mr Le Du as to his summary of the effects of the contract or as to his stated lack of knowledge or condoning of Mr Allen’s actions, Mr Everson nevertheless seems to submit that somehow or other these respondents should be held responsible for, and suffer severe consequences as a result of, the actions of Noosa Washed Sand.
For the reasons set out at paragraph 8(a)-(c) of Mr Fynes-Clinton’s written submission namely:
(a) The seriousness of the allegation that the second and third respondents criminally participated in the carrying out of what, on such evidence as the Court does have, may have been a significant planning law breach which has occurred on the subject site; and
(b) the financial consequences and business impact for the respondents if the declarations and enforcement order sought by the Council were made; and
(c) the fact that it is sought, by inference, to make the second and third respondents indirectly liable for the actions of another in which those respondents clearly played no actual and direct part.
I agree with him that the standard of proof required here should be towards the top of the sliding scale mandated by Briginshaw. These factors also bear upon the exercise of my discretion.
Council fails even on the lower end of the scale to establish on the evidence here that any of the respondents have committed a development offence, in the sense that they have counselled procured and/or aided Noosa Washed Sand to intensify the use of the lots between March 2006 and December 2006 such that a material change of use has occurred leading to unlawful activity.
The evidence all points in the other direction. Mr Le Du obviously informed the EPA of his arrangement with Noosa Washed Sand in their meeting with it in 2006. As I have found, it was Mr Le Du (not the EPA or Council) who first complained about possible unlawful activity by Mr Allen and Noosa Washed Sand which lead to an EPA investigation. It seems to me he did everything in his power to prevent possible breaches of the EPA development permit once he became aware of them, and did nothing to encourage Mr Allen or condone his actions.
Insofar as Council relies on the fact that Noosa Earthmovers, as the beneficiary of the EPA licence to extract and the development permit, is liable, without anything else, for the actions of Noosa Washed Sands, I agree with Mr Fynes-Clinton, based on the reasoning accepted in Wilkie v Blacktown City Council (2002) 121 L.E.G.R.A. 444, that the position of Noosa Earthmovers here is analogous to that of the lessor Ms Wilkie in that case. On all the evidence placed before me it is not possible for me to say in any event that Council has proved that any unlawful activity continued after 22 December 2006, the date that Sherrin Investments became the owner of Lot 306. For example, the evidence of Mr Carruthers and Mr Francis does not suggest any increase in intensity of extraction of materials after that date.
In Wilkie’s case, the NSW Court of Appeal expressly rejected the proposition which had been accepted by the trial Judge that a Lessor could be held to use land for an unlawful purpose merely on the ground that the Lessor had the capacity to terminate the lease but had failed to do so. As I have noted there was no challenge to Mr Le Du’s summary of the contract with Noosa Washed Sand and no attempt to suggest that he could have acted earlier than he did to stop any unlawful use. As I have found, as soon as he realised that Noosa Washed Sand may have been acting contrary to the permit from EPA he took steps to prevent it continuing by making a complaint.
I do not understand Council to be suggesting (as Mr Fynes-Clinton seemed to expect in his written submission) that prior to the involvement of Noosa Washed Sand there had been any unlawful use of the Lots. There is no evidence to support any finding that prior to February 2006, there was any material change of use of the lots for extractive industry. Mr Everson urges me to make a declaration as to the appropriate level of use as at 30 March 1998, a declaration not sought in the originating application and now advanced under the “catch all” paragraph 3:
“such further or other orders, including interim enforcement orders pursuant to s4.3.24 of the IPA that this Honourable Court deems appropriate.”
I do not think it is appropriate to make such a declaration in this case. I have held (apparently uncontentiously according to Mr Everson’s argument) that the use was a pre-existing lawful use made lawful under the IPA by s1.4.1. In any event, I prefer Mr Le Du’s evidence over that of the Council’s officer Ms Fullarton’s analysis as to the levels of extraction undertaken particularly in the year prior to the commencement of the IPA. I agree with Mr Fynes-Clinton that it is wrong for Council to rely on a figure of 33,333m3 for the year ending 30 June 1997 when the Council should have known even from it’s own records (and prior to the affidavits of Mr Le Du and the Johns brothers) that in 2000 there was a retrospective “catch-up” payment for material extracted in that time for which royalties were not then paid. I accept Mr Le Du’s calculations based on Exhibit JAL-4 which is a reconciliation of extracted materials from Lot 306 from 1996-1999 which shows the Council records to be inaccurate. Mr Everson described this as “doctored” evidence while in no way appearing to challenge Mr Le Du and Mr Johns’ evidence as to how this came about. His description is quite unfair to both of them and I reject it.
CONCLUSION
I do not intend to make any declarations involving Lot 177 because (a) there is no evidence of breaches by Mr Cyril Johns in the relevant time and (b) Mr Everson effectively agreed that he be given permission to withdraw from the proceedings at the start. The Council’s case against the other respondents fails for the reasons stated and the application is dismissed. I should say that in this particular case for the reasons I have exposed, there is simply no utility in making the declaration sought in paragraph 1(a).
Even if I had found evidence connecting the second and third respondents to alleged unlawful activity by Noosa Washed Sand I would have declined to make restraining orders as sought in 1(g) and (f). It is clear on all the evidence that Council has been well aware of the quarrying on the Johns land for many decades. It is also clear that Council has for some time felt frustrated about it’s inability as a matter of law to impose planning controls e.g. relating to traffic, on the use because it was a pre-existing lawful use. Such is evident from the letters with the EPA in 1998 and some of the observations in the planning review (exhibit 6) and the report on submissions for the Noosa Plan (exhibit 7). It is clear that Council has received complaints form citizens for many years. It appears that when Mr Allen came on the scene in February/March 2006, he did act in a way that lead to increased complaints and EPA and Council investigations. The balancing exercise would also have taken into account such evidence as that of Mr Beard bearing in mind the Council itself can at any time take steps to upgrade and improve the road access system to the site.
The respondents appear on the evidence before me to have been assiduous to act lawfully within the limits proscribed by the lawfully given development permit of the EPA, and the second respondent appears to have acted very responsibly when it became aware of possible breaches of the permit by NWS. Similarly, the third respondent, since becoming the owner of Lot 306, has acted responsibly in ensuring that the requirements of the EPO issued to it in February 2007 are satisfied.
COSTS
In view of the highly adversarial nature of these proceedings I directed that a draft of my reasons for dismissing the council's application be provided confidentially to the legal representatives of the parties in advance of today's hearing to enable written submission to be prepared. The council and the second and third respondents agreed to an exchange of written submissions, which has occurred, and I have read and considered these submissions.
Mr Cyril Johns' Solicitor sought access to the draft reasons on the same basis, which I permitted, to enable him to make a costs submission which he has made in writing.
The Council has failed completely in its application for declaratory relief and the respondents seek their costs of the proceedings pursuant to section 4.1.23 (2)(b) and (i) of the Integrated Planning Act which relevantly is in these terms:
"The Court may order costs for the proceedings … as it considers appropriate in the following circumstances -
(b) The Court considers the proceeding (or part of the proceeding) to have been frivolous or vexatious;
…
(i) An applicant … or local government does not properly discharge its responsibility in the proceedings."
I can readily deal with Mr Fynes-Clinton's argument relating to subsection 2(i). In Shaw v Brisbane City Council (2000) QPELR 57 at 58, his Honour Judge Quirk said:
"As to subparagraph (i), the argument appears to be that 'responsibilities in the proceedings' includes an obligation to recognise any weaknesses in one's case and to respond accordingly to that recognition by not pursuing the matter further if that is warranted. Such a proposition would in my view involve too wide an interpretation of the concept of 'responsibilities' as it is used in the subparagraph.
The proposition may reflect the position of a party in ordinary civil litigation but here, the concept must be understood in the context of this legislation. I would interpret the provision to refer to responsibilities that are imposed on the parties named to do what the Act specifically requires of them when they become involved (in those capacities) in proceedings which the Act governs. Such an interpretation would not extend to cover the proposition put forward here."
The facts of that case are clearly distinguishable but the Council's actions here, as identified in my reasons, fall short of "not properly discharging its responsibilities in the proceedings.”
I now turn to the argument based on section 4.1.23 (2) (b). The words "frivolous or vexatious" have been judicially considered in a number of decisions of this Court and in the Court of Appeal. In many of the judgments, for example, Wilson v The Council of Shire of Laidley (1994) QPLR 65, the emphasis has been on the word "vexatious", which it can be accepted has the meaning ascribed to it by Deane J in Oceanic Sunline Special Shipping Company Inc v Faye (1988) 165 CLR 197 at 247; namely "productive of serious and unjustified trouble and harassment": per McMurdo P and Atkinson J in Mudie v Gain River Proprietary Limited (No. 2) [2003] 2 Qld Reports 271 at 284.
I am not persuaded that the Council's commencement of the proceedings and its continuation after correspondence from the solicitors for the second and third respondents on the 9th of July 2007, could be said to be vexatious in the way in which that term has been construed in the cases.
In Mudie, both the President and Atkinson J, and Williams JA, in a separate judgment, dealt with the meaning of the word "frivolous". This is significant, in my opinion, because a literal reading of the section means that the Court's discretion to award costs in proceedings under IPA is enlivened if the Court considers the proceeding, or part of the proceeding, to have been "frivolous" or "vexatious".
The President and Atkinson J had resort to the Macquarie Dictionary at 284 which defines "frivolous" as: "1. of little or no weight, worth or importance; not worthy of serious notice 2. characterised by lack of seriousness or sense." Williams JA resorted to the shorter Oxford Dictionary at page 291 which defines frivolous as "1. of little or no value or importance, paltry (of a claim, charge et cetera); having no reasonable grounds. 2. lacking seriousness or sense; silly". The Oxford Dictionary On-line applies a similar definition including concepts such as "having no reasonable ground or purpose" and "b. law, in pleading, manifestly insufficient or futile".
In proceedings under the IPA, ordinarily each party must bear its own costs (s 4.1.23 (1)), the purpose being, as noted by members of the Court in Mudie, so as not to discourage citizens from commencing proceedings in this Court, particularly those with rights as submitters. Mr Everson is right, therefore, that the mere fact that his client failed in its proceedings does not enliven this Court's discretion to award costs.
I am not persuaded that Council's conduct of the proceeding, up to the receipt of the 9th of July 2007 letter, was frivolous in the sense in which that word is used in subsection 2(b) and interpreted in the cases to which I have referred. However, I have reached a different conclusion in relation to the proceeding after the letter was received. That letter contained unsigned affidavits of Mr Le Du and Mr Sherrin. Mr Everson says, in his written submission, that his client did not receive the sworn affidavits of Mr Le Du and Mr Sherrin until a few days prior to the start of the hearing on the 16th of July 2007, which is correct. But Council had copies of the unsworn affidavits which did not change for the purposes of the hearing. Significantly, in the letter of the 9th of July 2007, the solicitor said this, "With the evidence-in-chief of all parties now in, it is apparent that Council's application, in so far as it seeks relief against the second and third respondents, has absolutely no evidentiary basis and is bound to fail."
This was met with a highly combative letter from the Shire Solicitor the next day, which I am sorry to say seems to symbolise Council's intransigence at this point. I have already dealt with the Council's failure at the hearing to relevantly contest Mr Le Du's evidence, and Mr Sherrin was not even required for cross-examination. The proposition, in Mr McNaughton's letter quoted above, has been completely borne out by my reasons.
I am therefore satisfied that the Council's continuation of the proceedings to trial after 4 p.m. on the 10th of July 2007, was frivolous, and the second and third respondents are entitled to their costs of and incidental to the proceedings.
Mr Fynes-Clinton seeks indemnity costs which prompted what can only be described as a remarkable cross-application by Mr Everson for his client's costs of the costs application. I do not consider that there is any basis here for ordering indemnity costs, if such an order is available in proceedings of this kind. They probably are, given the application of the Uniform Civil Procedure Rules and because the Planning and Environment Rules are silent, and rule 3 (2) of those rules takes up the Uniform Civil Procedure Rules in those circumstances; and also see Judge Wilson SC's judgment in Jimbalong Proprietary Limited v Beaudesert Shire Council and others (2005) QPELR 621. However, it is unnecessary for me to decide that in the circumstances here.
It is most unfortunate that the first respondent, Mr Cyril Johns, has incurred legal costs in defending what was ultimately an unsuccessful application by Council. But Council's attitude in not requiring him to defend himself and agreeing to him being excused from appearing at the proceedings, means that he did not incur the substantial costs of having to instruct a solicitor and to brief counsel. However, for the reasons that I have enunciated, he too is entitled to any costs incurred by him after 4 p.m. on the 10th of July 2007, and I so order.
I direct that these reasons be incorporated into and form part of the reasons published today for dismissing Council's application.
The orders of the Court are application dismissed, applicant to pay the costs of the respondents of and incidental to the proceedings incurred after 4 p.m. on the 10th of July 2007, on the standard basis.
0
5
4