Oakden Investments Pty Ltd v Pine Rivers Shire Council
[2002] QPEC 75
•17 December 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Oakden Investments Pty Ltd v Pine Rivers Shire Council & Ors [2002] QPEC 075
PARTIES:
OAKDEN INVESTMENTS PTY LTD
Appellant
v
PINE RIVERS SHIRE COUNCIL
Respondent
And
STRATHPINE ENTERPRISES PTY LTD
(ACN 674 565 659)
Co-RespondentFILE NO/S:
P&E Appeal No. 2979 of 2002
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
17 December 2002
DELIVERED AT:
Brisbane
HEARING DATE:
12 November 2002
JUDGE:
Judge Quirk
ORDER:
The application for costs is refused.
CATCHWORDS:
Integrated Planning Act s 4.1.23(2)(a), (b), (c) and (i)
COUNSEL:
Mr M D Hinson SC, for the appellant
Mr J Haydon, for the co-respondent
SOLICITORS:
Connor O’Meara, for the appellant
Wendy Hart, Solicitor, for the co-respondent
On 6 November last this appeal was dismissed. At the same time an application by the co-respondent for an order against the appellant for its costs was adjourned for consideration at a later date. I have now heard argument on the matter and am in a position to make the necessary rulings.
The appeal was lodged in July of this year. The appellant was an adverse submitter in respect of a successful application for necessary permits for the establishment of a child care centre on land at Warner. The appellant is the owner of adjoining land and was formally the owner of the subject land.
The appellant has established a District Centre on its land and, was explained in the affidavit of Mr Sharpless, one of its directors, had been involved in “master planning” for the locality. The appellant also has the benefit of planning approval for a child care centre on part of its land.
Following an application by the appellant, the subject land was included in the Special Facilities (Service Station, access to Car Parking/Service Areas) zone in 1994 and was subsequently sold to the Shell Company of Australia with the expectation that it would be developed as a service station. This has not occurred.
As Mr Sharpless explained in his affidavit:-
“as appears from the grounds of objection contained in the appellant’s submissions to the respondent and in the issues in dispute in the appeal, the appellant was concerned that the proposed development was inconsistent with the master planning for the district centre and jeopardised the reasonable aspirations of the appellant to develop a child care centre on the appellant’s land.”
These concerns are reflected in grounds 5.1-5.6 of the notice of appeal.
In the notice the appellant also took the point that the application was not (as the law required) properly made. Following a directions hearing in August, this preliminary point was heard and determined (against the appellant) by His Honour Judge Dodds. An application for leave to appeal against His Honour’s decision was subsequently dismissed.
In the meantime, following repeated requests by the co-respondent’s solicitors for clarification of the issues, the appellant conferred with counsel on 18 September regarding its prospects of success in respect of the “merit” issues in the appeal. As was explained by the appellant’s solicitor, Mr Connor, advice had been obtained from a number of reputable consultants and this advice was reviewed. After conferring with counsel the appellant decided not to pursue the “merit” issues and, on the next day, the other parties were advised accordingly.
On 20 September the parties attended before this court which was told that the appellant’s case would stand or fall upon the decision of the Court of Appeal which was scheduled for early November. The hearing date set aside for the “merit” evidence were vacated and the application for costs by the co-respondent was adjourned to a date to be fixed. On 6 November, following the decision of the Court of Appeal two days earlier, this court formally ordered that the appeal be dismissed.
This court’s power to make orders for costs is circumscribed by s 4.1.23 of the Integrated Planning Act. In this case, those provisions relied upon by the co-respondent were sub-s 2(a), (b), (c) and (i) in each of which identify circumstances in which the relevant discretion may arise.
“The court considers the proceeding was instituted merely to delay or obstruct”.(a)
The operative word is “merely”. A sensible interpretation of the sub-section would indicate that it contemplates an absence of any real merit in the appellant’s case (or a basis for belief on the appellant’s part in the presence of some such merit). A desire to delay or obstruct a project would not, in itself, be enough.
On the material before me the appellant’s position was clear enough. It had substantial investments in this area, the orderly planning of which was in its interests. It also had reservations about any need for another child care centre on the subject land particularly when it was in the process of setting up such a facility on its own land. That these concerns may have been heightened by its own interests does not necessarily discount these matters.
I was made aware of conversations that passed between directors of the opposing companies. Nothing of this seems to me to be inconsistent with what one might have expected from two astute but straightforward businessmen seeking to protect their positions. It was certainly not inconsistent with the attitude of the appellant as explained by a Mr Sharpless.
On the material before me I am unable to find that the appellant knew (or ought to have known) that, at the time when the appeal was lodged, its case was devoid of merit and that the proceedings were instituted “merely to delay or obstruct”.
“the court considers the proceedings (or part of the proceeding) to have been frivolous or vexatious”.(b)
This court has, in the past, observed that frivolity and vexatiousness are not necessarily equivalent to the absence of a justifiable view as to the likelihood of success (Robina Land Corporation Pty Ltd v Albert Shire Council and Citie Centre Project Pty Ltd 1995 QPELR 211). The fact that, subsequent to the lodgment of the appeal, expert advice was sought and proved to be discouraging does not alter this. The fact that the appellant decided that its prospects of success were not sufficiently strong to justify its pursuing the appeal on the merits falls well short of establishing that the appeal, as lodged, was frivolous or vexatious.
“A party has not given reasonable(c) notice of intention to apply for an adjournment of the proceeding”.
The events relied upon by the co-respondent appear to have been the appearance before this court on 20 September. However, at that time, what was made was not really an application for an adjournment in the usually understood sense. What did happen was that the court was advised that:
·the time set aside for the merits hearing was no longer required;
·the appeal’s fate would be decided in the Court of Appeal.
This subsequently occurred and an adverse order for costs was made against the appellant in that jurisdiction. In these circumstances no unreasonable conduct on the appellant’s part can be detected and I am not satisfied that any order for costs in this respect is justified.
“an applicant, submitted, referral agency, assessment manager, or local government does not properly discharge its responsibilities in the proceedings.”(i)
This provision was considered by this court in Shaw v Brisbane City Council & Anor 2000 QPELR 57. No further elaboration is required. No failure in this sense on the appellant’s part has been established.
For these reasons the application for costs must be refused. I order accordingly.
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