Perkins v Kilkivan Shire Council
[2006] QPEC 49
•10 May 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Perkins & Anor v Kilkivan Shire Council [2006] QPEC 049
PARTIES:
BRUCE WILLIAM PERKINS and
DEBORAH ANN PERKINSAppellants
KILKIVAN SHIRE COUNCIL
Respondent
FILE NO/S:
Gympie P&E No 2 of 2001
Visiting File BD472 of 2006DIVISION:
PROCEEDING:
Interlocutory applications in conditions Appeal
ORIGINATING COURT:
Planning and Environment Court, Gympie
DELIVERED ON:
10 May 2006
DELIVERED AT:
Brisbane
HEARING DATE:
12 April 2006
ORDER MADE:
2006
JUDGE:
Robin DCJ
ORDER:
Appellants’ application dismissed
CATCHWORDS:
Integrated Planning Act 1997, s3.5.15, s4.1.2, s4.1.5, s4.1.23
Decision Notice not vitiated by failure to alert applicant to s3.5.18 of the Act under which he might have extended the appeal period by making written representations – this did not come within “rights of appeal” or “relevant appeal provisions” – Planning and Environment Court lacked jurisdiction to order Council to pay appellants $10,000 (allegedly offered in satisfaction of past claims) in their conditions appeal – no case shown for the Court to consider dealing with the Council’s CEO for contempt on basis he excluded the Councillors from their proper role in considering matters in the Court – respondent’s application for costs refused.
COUNSEL:
Appellants self-represented
Mr Ure for the Respondent
SOLICITORS:
Appellants self-represented
King & Company for the Respondent
This is a conditions appeal under s.4.1.27(1)(b) of the Integrated Planning Act 1997 (IPA) filed in Gympie on 31 August 2001. The only subsequent document on the court file before the court directed a review at a callover on 17 January 2006 was the Council’s entry of appearance filed 17 September 2001. The appealed conditions were contained in a Development Application Decision Notice, dated 2 August 2001, approving an application for reconfiguration. It represented the last stage of a process of subdivision of the appellants’ land which had gone on for years. The appellants no longer own the land, a sale having been instigated or effected by their bank and completed in December 2002 after possession was given the month before. Mr Perkins, who represented himself and his wife, told the court that foreclosure by the bank had occurred the preceding July.
One would have thought, as Senior Judge Skoien did at a mention on 22 March 2006, when the appellants’ present applications were set down for hearing on 12 April 2006, that there was no utility in the appeal, it not appearing that there are any special circumstances like those in Ogle v Pine Rivers Shire Council [2005] QPELR 29; [2004] QPEC 71, such as a new owner wishing to undertake the development. Both before his Honour and on 12 April, Mr Perkins was determinedly non-committal as to whether the appellants were interested in getting orders about the conditions, although asserting that some of them were illegal. He said (page 3 of the transcript of 22 March 2006):
“We’re not ending our appeal. We believe under Rule 20(b) we can make an order under this appeal and that’s what we’re doing … we want to keep our options open.”
The rule intended to be referred to would appear to be r 20(2)(b) of the Planning and Environment Court Rules 1999. His Honour determined that the Perkins ought to have “their day in court”.
They have made two applications flushed out by the January callover. That filed on 21 February 2006 seeks:
“1.A ruling on the legality of the ‘Decision Notice’ sent to us by Kilkivan Shire Council on 2-8-01.
2.A ruling Kilkivan Shire Council pay the Appellant the sum of $10,000 offered as payment for; unrefunded road contributions; errors and mistakes in past subdivision works; undersize works and unpaid plant invoices, plus interest.”
the one filed a week later that:
“The Court considers whether Kilkivan Shire Council CEO Ray Currie is in contempt of the Court process.”
The Council’s ripostes are applications filed on 15 and 23 March 2006 seeking the striking out of the appellants’ respective applications and costs.
Some further matters of background should be summarised. After the filing of the appeal, which solicitors attended to on the appellants’ behalf, negotiations took place between the parties. There was an on-site meeting, which apparently took some time to arrange, followed months later by a letter from the Council’s solicitor of 25 March 2002 advising revised “monetary components for each condition” and a “revised quote” for condition 11 (the extension of Ash Street, Kilkivan, by some 214 metres). There was reference to a deduction of $10,000 as “negotiated settlement for past discrepancies” leading to a “Total required to satisfy conditions of approval [of] $18,861”. A patent arithmetical error led to the expressed total being $2,000 too high. The letter included “revised conditions in accordance with our instructions”; the attachment is headed “DRAFT Negotiated Conditions”. The changes were favourable for the appellants, who stood to be freed of a $10,500 contribution to do with upgrade of an existing water supply main in Ash Street and from a requirement to pay the full cost of extending it to service proposed lot 8. The “past discrepancies”, the court heard, relate to deficiencies in work performed by the Council as contractor in earlier subdivisional stages, alleged retention by the Council of payments under a performance guarantee in excess of the amount the Council was entitled to and some matters completely extraneous to any development application. The appellants say that the Council has failed to honour vouchers which local people exchanged for free plants from their nursery in an amount of some $2,700 or more.
The appellants responded by a letter dated 30 April 2002:
“Re: Subdivision 402
We have informed your solicitor, David Kevin and King & Co, that we have agreed to Council’s offer of $10,000 to compensate us for the ‘Past Discrepancies’ and agree to all of the amended conditions with the exception of Condition 11. We have also informed King & Co of a $2,000 addition error on page 1 of Council’s proposed settlement.
Condition 11 now contains a proposed ‘14M Dia. Culde-sac’ which wasn’t included in the original Road Condition 12. Nor was there a cul-de-sac on the plan (enclosed) that was approved by Council. Consequently, our surveyors have already prepared the ‘Real Property Plan’ without a cul-de-sac. This proposed cul-de-sac would remove established gardens at the new nursery entrance.
The new road extension is 214m long (Ref: Attached Plans). At the onsite meeting of Dec 4, 2004, Council’s D.O.E. (Tony Robbins) assured all present that the standard for the new road works was the same standards he used on the original Ash Street in 1993 (Sub 276). Later in the Council Chambers on the same day, when asked what the approximate costs of the Ash Street extension would be, D.O.E. replied approx $12,000.
Later during the same meeting David Kevin handed us a copy of D.O.E.’s internal report prepared by 27.7.2001. We were shocked to find his original cost for the new 214m road was $25,100 and that the total Council cost to us for 3 rural lots was $51,500. (NB another addition error as D.O.E.’s $49,100 didn't include the 3 overpriced driveways at $2,400). We have proof that the new road price of $21,111 is still inflated and bears no resemblance to the expenditure or the standard of works on the previous subdivision (276 Ash St). Nor does this inflated price bear any resemblance to costings and quotes we have obtained for the same work, leaving us wondering how D.O.E. could justify his original cost of $25,100?
As only the elected Council can approve or alter Conditions of Development, we are asking Council to reject the proposed cul-de-sac and accept the fair and reasonable $12,500 costing for Condition 11.
We feel that D.O.E. and C.E.O. have ignored the integrated planning Act, which is the Act of Parliament governing the ‘Development Application’ process. Ref P 129; 3.5; 30(1) and (b) which state conditions ‘must be relevant and reasonable’.
Ref P119, 3.5.15(5) which states ‘Plans and specifications’ should have been included with the ‘Decision Notice’ issued August 2001. Attached to Council’s ‘Decision Notice’ was court as our right of appeal. We feel P120/121 of the ‘Integrated Planning Act’ should also have been included as they describe other appeal processes and rights of appeal.
Our Development Application was lodged with Kilkivan Shire Council in May 2001. The ‘Decision Notice’ of August 2001 contained some conditions that were irrelevant, unreasonable and lacked the details required by the ‘Integrated Planning Act’.
Errors, unnecessary delays, overpricing and ‘Past Discrepancies’ left us with no choice but to seek legal advice which to date has cost $2,000. As our concerns have been vindicated, we ask Council to pay this cost to finalize this matter.”
It was not (and could not have been) contended that the letter constitutes an acceptance of the proposal advanced by the Council.
The appellants say they heard no more from the Council. It may well be correct that they lacked the means to pursue the appeal which languished in the Gympie Registry. They had been pursuing other avenues of potential redress, including the Ombudsman’s office. Matters there appear to have come to a stop following the Council’s letter to the Ombudsman of 10 December 2001, obtained by the appellants under Freedom of Information legislation. Only the third of three complaints mentioned is of present relevance:
“3. Errors and discrepancies in charges for subdivision work
As explained in my earlier letter the matters raised in this issue have now been covered in negotiations between Mr Perkins and Council on his appeal against Council’s previous decision. It was agreed earlier in the week in negotiations between the Perkins family and Council that any discrepancies would be included as part of contributions to the current appeal, as such it is my understanding that this complaint against Council will now be withdrawn.
Yours faithfully,
Ray C. Currie,
CHIEF EXECUTIVE OFFICER”
It may be open to say, in retrospect, that it should have been possible for the parties to arrive at a Negotiated Decision Notice. Mr Perkins was critical of the Council for not coming back with a new offer. The Council was always unlikely to accept the appellants’ last proposal, which would have involved not only abandonment of the cul-de-sac requirement, but a probably unprecedented payment of legal costs and the Council’s committing itself to perform contracting work for a fraction of the reduced price of $21,111 suggested in Mr Kevin’s letter. At all events, common ground was not reached. The appellants are reduced to technical arguments which do not differ greatly from those mounted all along. In circumstances where they will not be proceeding with the development, they seek to replace the “discrepancies” allowance with a new arrangement of a cash payment to themselves.
The issue to do with Mr Currie raised by the application filed on 28 February 2006 relies on the contention that he has taken it upon himself to run the Council’s case without appropriate reference to or approval from the Councillors. It is not suggested that he is or might be guilty of any contempt in the face of the court or by disobedience to a court order.
Mr Perkins would not say what might follow from the asserted illegality of the Decision Notice. He did not suggest, for example, that the Council ought to issue a proper Decision Notice now, or that the appeal should be treated as one against a deemed refusal. In the end, it does not matter what the appropriate consequence might be, because the court rejects the challenges made to the Decision Notice. The first ground of complaint is that notice wrongly asserts it contains “all the relevant details”. Even if factually correct, which I do not think it is, this ground does not invoke any of the requirements of a Decision Notice as set out in s.3.5.15 of the IPA. Subsections (4) and (5) are relied on:
“(4) A copy of the relevant appeal provisions must also be given with each decision notice or copy of decision notice.
(5) When the assessment manager gives a decision notice under subsection (1), the assessment manager must also give a copy of any plans and specifications approved by the assessment manager in relation to the decision notice.”
The appellants say that the Council’s provision of a document headed in large type “Appeals By Applicants” setting out s.4.1.27, s.4.1.39 and s4.1.40 is insufficient. Specifically, it is asserted that ss.3.5.16, 3.5.17 and 3.5.18 should have been referred to as well. They make up Div 4 of Pt 4 of Ch 3 of the IPA:
“ Division 4 Representations about conditions and other matters
3.5.16 Application of div 4This division applies only during the applicant’s appeal period.
˙
3.5.17 Changing conditions and other matters during the applicant’s appeal period(1)This section applies if the applicant makes representations to the assessment manager about a matter stated in the decision notice, other than a refusal or a matter about which a concurrence agency told the assessment manager under section 3.3.18(1).
(2)If the assessment manager agrees with any of the representations, the assessment manager must give a new decision notice (the “negotiated decision notice”) to—
(a) the applicant; and
(b) each principal submitter; and
(c) each referral agency; and
(d) if the assessment manager is not the local government and the development is in a local government area—the local government.
(3)Only 1 negotiated decision notice may be given.
(4)The negotiated decision notice—
(a) must be given within 5 business days after the day the
assessment manager agrees with the representations; and
(b)must be in the same form as the decision notice previously given; and
(c) must state the nature of the changes; and
(d) replaces the decision notice previously given.(5)If the assessment manager does not agree with the representations, the assessment manager must, within 5 business days after the day the assessment manager decides not to agree with any of the representations, give a written notice to the applicant stating the decision about the representations.
(6)Before the assessment manager agrees to a change under this section, the assessment manager must reconsider the matters considered when the original decision was made, to the extent the matters are relevant.
(7)If the development approved by the negotiated decision notice is different from the development approved in the decision notice in a way that affects the amount of an infrastructure charge or regulated infrastructure charge, the local government may give the applicant a new infrastructure charges notice under section 5.1.8 or regulated infrastructure charges notice under section 5.1.18 to replace the original notice.
3.5.18 Applicant may suspend applicant’s appeal period
(1)If the applicant needs more time to make the written representations, the applicant may, by written notice given to the assessment manager, suspend the applicant’s appeal period.
(2)The applicant may act under subsection (1) only once.
(3)If the written representations are not made within 20 business days after the day written notice was given to the assessment manager, the balance of the applicant’s appeal period restarts.
(4)If the written representations are made within 20 business days after the day written notice was given to the assessment manager –
(a)if the applicant gives the assessment manager a notice withdrawing the notice under subsection (1) – the balance of the applicant’s appeal period restarts the day after the assessment manager receives the notice of withdrawal; or
(b)if the assessment manager gives the applicant a notice under section 3.5.17(5) – the balance of the applicant’s appeal period restarts the day after the applicant receives the notice; or
(c)if the assessment manager gives the applicant a negotiated decision notice – the applicant’s appeal period starts again the day after the applicant receives the negotiated decision notice.”
Mr Perkins was alerted to those provisions by par 7.9 of a document retrievable on the internet called IDAS Guideline 1 – March 2001, version 2.1. The Guideline became Exhibit 1. As one would expect, it adds nothing to s.3.5.15. Decisions upon provisions similar to subsection (4) in earlier legislation show that non-compliance may invalidate a decisions notice: Symons v Mackay City Council [19870 QPELR 486, applying Turner v Maroochy Shire Council (1978) 36 LGRA 372. No doubt it would be useful for the appellants or any applicant to be alerted to the possibility of extending the period for appealing by use of the above sections. The question is not free of difficulty, but I do not think that those sections are “relevant appeal provisions” within the meaning of section 3.5.15(4). The question arises where one would stop. There are many provisions which bear on what appellants must or may do, in the Planning and Environment Court Rules, even in the Uniform Civil Procedure Rules. No one could suggest the whole lot must be set out in a Decision Notice. I accept that a provision whereby a would-be appellant may obtain a longer period of time within which to lodge an appeal to this court may be presented as a “relevant appeal provision” for purposes of s3.5.15(4). In the end, I think the approach of the Council is right, that subsection (4) is controlled by subsection (2)(j) which requires the Decision Notice to state “the rights of appeal for the applicant and any submitters”. I think that this provision controls the meaning of subsection (4) and that the “rights of appeal” do not extend to a provision which creates no right of appeal, but adjusts the time limit for appealing in special circumstances.
Mr Perkins’ point under s.3.5.15(5) is that there were or must have been “plans and specifications approved by the assessment manager in relation to the Decision Notice” and that a copy of them should have been sent with the Decision Notice. In the course of Mr Perkins’ submissions, it became clear firstly, that there has been a good deal of speculation by him as to the facts, secondly, that his understanding of the section relied on is imperfect and thirdly, that what he has hoped to achieve was a set of development conditions incorporating an offer by the Council to do work capable of acceptance by him (and Mrs Perkins, perhaps) to allow the physical work to realise the proposed development to go ahead. The transcript of the hearing includes the following at 25-27:
“APPLICANT B PERKINS: Well, in the previous subdivision, we had – the costings were included in the conditions. … And I don’t see why they wouldn't have been in this case, because we were expecting to make an agreement – legal agreement with Council … been approved by the assessment manager. If they hadn’t have been approved by the assessment manager, it may be that they might not have needed to be included. But, according to the Integrated Planning Act, all details and specifications approved by the assessment manager, must be included in the decision notice.
Now, if these costings had been approved by the assessment manager, and in some – some conditions, they were added, but in other’s they weren’t. You know, that made it, in our case, impossible to write a cheque, and get on the with the business of refinancing what we were trying to do. … the costs were approved in the engineer’s report. And, like, the water conditions, there was one condition where the cost of the water contribution was included, but in the second condition – again, it was in the engineer’s report – wasn’t included in the condition. I mean, why are some costings included in some conditions and not others. How can we make an agreement?”
It is helpful to set out the engineer’s report:
Proposal
The applicant proposes to reconfigure Lot 5 into new Lot 5-8 of 567m², 3.453 ha, 2.439 ha and 2.136 ha respectively. Lot 6 contains an existing house and plant nursery business.The proposal also requires the opening of a new road 214m long as an extension of Ash Street.
Report
The proposed rural residential development is in accordance with the Strategic Plan of Council’s Planning Scheme.A key requirement for rural residential development is the provision of a sealed access road and reticulated water supply. A 50 mm water main already runs along Ash Street and serves the parent lot plus four other lots. This main would be inadequate to supply the additional three lots proposed.
The main in Ash Street is 350 mm long and the length of new main is 224m. Because the existing main does not provide fire fighting capacity, it would be reasonable for Council to share the cost of its replacement. This is estimated to be $21,000 ie. $10,500 each for the applicant and Council. The cost of the new main extension should be borne by the applicant and is estimated to cost $13,500.
The extension of Ash Street is estimated to cost $25,100 and should be borne by the applicant.
The total cost to the applicant of new infrastructure is $49,100 which must put in question the economic viability of the proposal. It also commits Council to expenditure of $10,500 which naturally has not been budgeted for. However, the proposal is in accordance with the Strategic Plan, subject to the provision of suitable services, and Council is keen to see an expansion of rural residential.
Recommendation
It is recommended that Council should approve the application submitted by B Perkins to reconfigure land described as Lot 5 on RP863203, Parish of Kilkivan, subject to the following conditions:1.The Real Property Plan of Survey shall be submitted to Council for endorsement within twelve (12) months after the date of permit otherwise a new application may be necessary.
2.The land being subdivided should be cleared of all noxious weeds and scrap and certified as such by Council’s Inspector.
3.Arrangements be made with the Ergon Energy to supply power to Lots 5-8.
4.Accesses to each block shall be constructed to the satisfaction of the Director of Engineering Services at the Applicant’s cost.
The estimated cost to provide the 3 accesses is $2,400. The access provided is a gravelled turnout over a 375mm diameter concrete pipe six (6) metres long.
5.A contribution of $100 per new lot be made by the developer for the improvement of existing park and recreation space.
6.Engineering works are to be surveyed, designed and constructed to dimensions and standards in accordance with Council’s specifications. Plans are to be approved by the Director of Engineering Services.
7.Where persons other than Council are engaged on the construction of drains, roads, water supply or sewerage, the applicant is required to lodge with Council, either cash or a bank guarantee, an amount of thirteen percentum (13%) of Council’s estimated of that construction for the following purposes:
i.3% to cover safety during construction (balance to be refunded)
ii.5% to cover maintenance (balance to be refunded)
iii.5% to cover supervision by Council Officers.
8.All construction work associated with the subdivision is to be completed to the satisfaction of the Director of Engineering Services before the Real Property Plan of Survey is endorsed. Alternatively arrangements are to be made for Council to undertake construction work on behalf of the applicant before the Real Property Plan of Survey is endorsed.
9.All corners of proposed new boundaries be clearly marked with a post approximately 100 mm in diameter and 1.2 m high and painted white. Corners will be taken to mean any change in direction of the boundary line.
10.The applicant undertakes to contribute $10,500 towards the upgrade of the existing water supply main in Ash Street. The water main is to be of 100 mm Class 18 PVC pipe with hydrants at 60 m spacing and ferrules for property connections.
11.The applicant undertakes to pay the full cost of extending Ash Street to provide access to proposed Lot 8. Such road construction is to be bitumen sealed 4 m wide on a 7 m gravel foundation, with the gravel pavement conforming to Main Roads’ Type 2 – 5 specification.
12.All rates and charges owing on the subject land be paid in accordance with S3.7.2(3) of the Integrated Planning Act 1997.
13.The applicant provides evidence that a copy of the subdivision plan has been lodged with the Maryborough Office of Telstra.
14.The applicant pays the balance of development application fees being $50.00.
The conditions recommended were incorporated in the decision notice prefaced by the words: “the following schedule provides all the relevant details.”
The appellants contend that the last-quoted statement has exacerbated all of the alleged deficiencies in the Council’s performance of its obligations under the IPA. The evidence does not reveal (and in any event it does not matter) what materials A I Robbins (Director of Engineering Services) may have used, whether he did “back of the envelope” calculations or relied on rules of thumb developed over years. There is nothing whatever to suggest there were “plans and specifications” actually existing, or even contemplated by Mr Robbins, when he gave certain cost estimates. Section 3.5.15(5) does not require “costings” to be included in a Decision Notice. Of course, it is common for contributions required under conditions to be set out, and that occurred here. The conditions of the Decision Notice reproduced those recommended by Mr Robbins. In my opinion, what subsection (5) seizes on are plans and specifications which define work to be done which the Council is prepared to approve. In the ordinary run of things, the applicant would supply them. It is common for plans to be approved, especially where any building is proposed. It was not the situation here. Whatever Standards and the like may have been in contemplation cannot be dignified with the description “plans and specifications”.
The appellants’ challenge to the Decision Notice for what it did not contain fails.
It may be accepted that in Kilkivan the practicalities are that the Council will contract to and will perform physical works required in a development. Council is not compelled to quote for or agree to do work, nor is any developer (in the usual case at least) compelled to use the Council’s services. These matters of contract are, in my opinion, totally extraneous to the planning process; there is no warrant for bringing them in, as the appellants wish to do. As it happens, their grievances against the Council over the years centre on the Council’s alleged poor performance of contractual obligations it undertook. Unsurprisingly, the approval conditions expressly contemplate that the situation may be that “persons other than Council are engaged on the construction …”.
The appellants further say that the Decision Notice is vitiated in some way (Mr Perkins shrank from saying it was “invalid”) by inclusion of conditions not authorised by s.3.5.30 of the IPA. So far as appeared at the hearing before me, the complaint relates to the prices put by the Council on work, which were said to be out of line with those charged by the Council over the years. Consistently with the approach taken above, it seems to me there can be a conditions appeal, relevantly, only if monetary contributions required or work required cannot be justified under s.3.5.30. An appeal cannot be based on the Council’s quoting too high for work that may be done, in principle, anyway, by some other contractor. The parties were agreed that the proceeding before me was not a “merits” appeal, that aspect being left to another day. There is no need to say any more about it here.
The next claim to relief requiring consideration is that for a “ruling Kilkivan Shire Council pay the appellant the sum of $10,000 offered as payment …”. Here the appellants have not appreciated the limits upon the court’s jurisdiction. By s.4.1.2 of the IPA, “the court has the jurisdiction given to it under any Act, including the jurisdiction to hear and decide every appeal made under this Act”. The appellants are now pursuing a monetary claim. The Court of Appeal in CSR Limited v Pine Rivers Shire Council [1995] 1 Qd R 234, upon earlier legislation, which cannot relevantly be distinguished, decided by a majority that this court lacked jurisdiction to make a particular declaration. The consequence was that the relief had to be sought in the Supreme Court. There is nothing comparable with s.69 of the District Court of Queensland Act 1967 which extends the range of orders that may be sought in the District Court in a proceeding within its jurisdiction.
Accepting that this court has jurisdiction in the underlying appeal, it may be that even if there were a legal basis for this particular claim for a judgment for $10,000, no factual basis to support it is shown. What the Council offered, as part of broader arrangements, was a discount to the appellants should they develop pursuant to the approval notified in the decision notice. For purposes of the argument, it was unnecessary to go into the merits regarding whether any enforceable claims against the Council might have existed. The Council has not been shown to have acknowledged any liability. It may have been a convenient commercial decision taken in the circumstances. There was never an offer to pay money, or anything other than an offer of set-off against liabilities the appellants would have come under if they had elected to proceed with their development on the relevant conditions. The circumstances in which the set-off might be availed of by the appellants have not happened, and are unlikely ever to happen. Although planning approvals usually “run with the land”, there are exceptions where, for example, a permitted use is restricted in its duration (cf Reynolds v Redland Shire Council [2001] QPELR 184, 190). It would be more radical if some condition or advantage were sought to be made personal to a particular person. I am inclined to think that, here, it was only if the appellants should personally carry out the development that the Council would contemplate honouring the discount arrangement.
I would be prepared to accept, indeed have suggested, that the whole appeal might be resolved by an order resolving conditions issues in some appropriate way, incorporating a rider restricting the advantage of the discounted conditions to the appellants, if one could be devised. This would hardly suit the appellants, as they would receive no funds. The Council, through Mr Ure, opposed the whole appeal’s being dealt with. The appellants’ money claim fails.
Their remaining claim relates to the Council’s CEO, Mr Currie. He was not a party. Notwithstanding that the Council took up the cudgels on his behalf, I would not contemplate granting any relief against him unless he had been formally served and given the opportunity to arrange his own representation. Again, the Council raises a jurisdictional objection to what the appellants seek. Section 4.1.5 of the IPA governs the court’s jurisdiction so far as contempt is concerned:
“4.1.5 Contempt and contravention of orders
(1) A judge of the court has the same power to punish a person for contempt of the court as the judge has to punish a person for contempt of a District Court.
(2) The District Court of Queensland Act 1967, section 129, applies in relation to the court in the same way as it applies in relation to a District Court.
(3) If a person, at any time, contravenes an order of the court, the person is also taken to be in contempt of the court.
(4) If a person is taken to be in contempt of the court under subsection (3), the District Court of Queensland Act 1967, section 129(4) applies in relation to the contravention as if the person were an offender, and as if the expression 12 months were 2 years and the expression 84 penalty units were 3000 penalty units.
It was not suggested Mr Currie had acted contrary to any order of the court. For practical purposes, there is no such order. He has most certainly not committed any contempt in the face of the court. The complaint against him is that he has somehow usurped the functions of the Council, meaning the Councillors, and is involving them, if he does it at all, only after the event; it is suggested he does as he likes, in anticipation of ratification, if he involves the Councillors at all. The flavour of Mr Perkins’ submissions appears at page 54 of the transcript:
“APPLICANT B PERKINS: I feel, as he did with the ombudsman’s office, he’s generating letters and communication and the elected Council, I spoke to Peter MacIntosh a week or so ago and he said to me, he said Council have not discussed this business with the $10,000 or any of the details with this appeal, they just think it’s some sort of thing going on in Court and they haven’t been given any details by the CEO and he expressed some – the CEO expressed to the Council some surprise that it was still going.
… number 7, page 2 of the affidavit.
HIS HONOUR: MacIntosh told us that Council had no knowledge nor discussed the orders sought by us or King & Co. So this is the orders striking out your applications?
APPLICANT B PERKINS: Yeah, refusing to pay the money, it hasn’t even been discussed by Kilkivan Council, the moneys owed.
…we would say how could it be that the CEO’s telling King & Co in Court here that they’re representing the assessment manager, being Kilkivan Shire Council when they’re not discussing the details of this case? The money owed by Kilkivan Council hasn’t been discussed in Council nor has the decision notice received, nor is King & Co’s orders that it be struck out because it’s frivolous and vexatious.
…
HIS HONOUR: …are you suggesting that if it was up to Councillor MacIntosh, the Council wouldn't be trying to strike out your application?
APPLICANT B PERKINS: I think they would have had a serious discussion about moneys owed actually, if it had been brought up in Council and I think, I don’t know what they would have – I wouldn't be so presumptuous to assume what they would think but I think they would have had discussion about the moneys owed and the legality of it, particularly, certainly not to have it say to King & Co to have it thrown out as frivolous and vexatious.
HIS HONOUR: … What is it that you say Mr Currie did which is contempt of Court?
APPLICANT B PERKINS: Well, I’m saying he’s deceiving the Court as to who’s represented here in this case. … I’d say he did it early, he did it to the ombudsman’s office. Basically what he does is he intercepts mail addressed to the assessment manager or Council, which he has some rights to do, but these were legal issues and then he generates his own correspondence as Council from his desk and that’s what he’s doing here again. He’s reporting retrospectively about these proceedings in Court to Council, he’s telling them after he’s been in his corporate governancing report, he’s reporting in hindsight that he’s been to Court but he hasn’t allowed Council an opportunity to be involved in this process.
HIS HONOUR: Well, if he’s exceeding his proper role with the Council, that doesn't make him in contempt of Court.
APPLICANT B PERKINS: Well, as I said, we put a question mark beside that. … going back to December 4th meeting in 2001, the instructions from Council on the meeting of the 6th and the minutes were there, was that the CEO and the engineer were to continue negotiating … so where is the elected Council?
… There was a Council meeting two days after that on the 6th which authorised, they went into their room where they have confidentiality and they came out and Council authorised the CEO … and the mayor to continue negotiating. What happened is the mayor never – nobody from the elected Council ever was involved in the negotiations again.”
It seems to me that any complaint the appellants might have lies in the political realm and has nothing whatever to do with any possible contempt of this court. A couple of Mr Currie’s recent Corporate Governance Reports to the Mayor and Councillors were tendered at the hearing. It is the case that it does not appear that everything done by Mr Currie was necessarily put to the Council, and that the Council did not necessarily consider everything included in such reports. Nothing whatever has been shown to generate any concern about possible contempt of court.
Moreover, there is no basis appearing for thinking that Mr Currie may have acted beyond his authority, some description of which may be found in s.1111 of the Local Government Act 1993:
“1111 Acting for local government in legal proceedings
(1) In a legal proceeding, the chief executive officer of a local government or other employee authorised in writing by the local government –
(a) may give instructions and act as authorised agent for the local government; and
(b) may sign all documents for the local government.(2) A local government must pay the costs incurred by the chief executive officer or other employee of the local government in a legal proceeding.
(3) If the Attorney-General could take a proceeding on the relation of a local government to secure compliance with an Act, the local government is taken to sufficiently represent the public interest and may take the proceeding in its own name.”
The foregoing disposes of the appellants’ two applications, which must be dismissed, without the need for reference to the Council’s applications seeking an equivalent outcome. The Council also seeks costs, notwithstanding the general proscription in s.4.1.23 in the IPA. The exception relied on arises under subsection (2)(b) if the court considers that a proceeding or some part of a proceeding was frivolous or vexatious.
Mr Ure referred to statements about “frivolous or vexatious” in the Court of Appeal in Mudie v Gainriver Pty Ltd v Gatton Shire Council [2002] QCA 456 by the President and Atkinson J at [35]-[37] and by Williams JA at [59]-[60]. If the appellants’ applications may be regarded as meeting that description, so that the court’s jurisdiction to order costs against them arises (which could not be said to be the case for the s3.5.15(5) point), I am not satisfied that any such jurisdiction should be exercised. I take into account that the appellants are lay people representing themselves, who harbour a genuine sense of grievance against the Council. I can appreciate why they feel as they do, but am far from saying that all or any of their grievances are well-founded. They have not been gone into. From their point of view, if the Council in 2001 and 2002 had been more accommodating - in particular, had it been prepared to undertake works on the bases that applied in earlier stages of the appellants’ subdivision, the current application might have led quickly to a completed development, sparing the appellants from the financial disaster they blame on the Council. There is a possibility I would not wholly exclude that the $10,000 concession offered by the Council bespeaks some acknowledgment that the appellants had a point or two. The accompanying revised conditions put up for consideration involved a certain amount of success for the appellants.
It seems to me the court itself bears some responsibility for the problematic applications, in the sense that, but for the review of the appeal instigated by the court, they very likely would never have come about. I would observe that the appellants have proceeded in a responsible way, in the sense of preventing only arguments for which some justification was advanced by them. In all cases, the Court has seen things differently. The appellants could not complain of any lack of warning that this might be the outcome.
It cannot be suggested that the Council came under any legal responsibility to advise, assist or encourage the appellants. So far as the evidence reveals, Mr Kevin’s offer attracted the appellants’ counter-offer, to which the Council made no response, so that the matter effectively went to sleep. The appellants’ difficulties with their bank apparently supervened. It would be reasonable to suggest that the Council’s introduction of a new condition for a cul-de-sac required some justification in the circumstances.
The Council have inflated costs by bringing their own applications. This seems unnecessary. Council has resisted suggestions that the whole appeal might be resolved by its being allowed, with a credit against contributions required for “discrepancies” and the like, available if the appellants (only) implement the reconfiguration approval.
The Council seemed uninterested in any order which might indirectly dispose of the appeal, such as one intimating that any future costs occasioned by the appellants’ continued pursuit of their appeal might be ordered to be paid by them by the Council. The appeal would appear to be of little utility – none in practice: see AMA CSU v Ergon Energy Corporation [2005] QCA 251 where Keane JA noted at [77] a substantial line of authority to the effect that the appropriate course is to stay an appeal that appears to have no practical utility. Mr Ure relied on that statement in respect of the issue of the validity of the decision notice, but it is pertinent to the appeal as a whole. It seems to me fanciful to think that the appellants might gain anything from it. The present hearing has clarified that. While instances undoubtedly exist of this court ordering costs (Mr Ure pointed to Stubberfield v Redland Shire Council [1995] QPLR 152) such an order will not be made in respect of the appellants’ dismissed applications. The Council’s applications should be dismissed, too.
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