Primrose v Cooloola Shire Council
[2007] QPEC 57
•19 July 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: | Primrose v Cooloola Shire Council & Ors [2007] QPEC 057 |
PARTIES: | James G Primrose and June D Primrose (Applicant) |
FILE NO: | Gympie D2/2006 |
DIVISION: | Planning & Environment Court |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning & Environment Court of Queensland, Gympie |
DELIVERED ON: | 19 July 2007 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 8 May 2007 |
JUDGE: | Judge J M Robertson |
ORDER: | Originating Application filed 11.08.2006 struck out. Leave granted to all respondents and to the applicant to make submissions as to costs. |
CATCHWORDS | Application for declaratory relief; whether application should be struck out as being vexatious/oppressive and/or beyond the jurisdiction of the Court. Cases Considered: Legislation: |
COUNSEL: | Mr Primrose self represented |
SOLICITORS: | Mr Primrose self represented |
WRITTEN SUBMISSIONS RECEIVED: | 13/03/2007 Submissions 2nd respondent |
Mr and Mrs Primrose (the applicants) are the owners of a rural property at 39 Woondum Road Gympie which they acquired in November 2002. Their property is described as Lot 3 on RP213686 and is burdened with a registered easement which provides access to land at 37 Woondum Road which was previously owned by Mr and Mrs Boyce (the Second Respondents). This property is described as Lot 2 on RP35056 but was, at the time Mr and Mrs Boyce acquired it in August 1995 described as Lot 2A on RP35056. Mr and Mrs Boyce sold the property to the third respondents Mr Poulton and Ms Mills in March 2004.
At the time Mr and Mrs Primrose acquired their property in November 2002, 37 Woondum Road was the subject of two separate town planning permits enabling Mr and Mrs Boyce to operate a cattery and boarding kennel on the property.
The cattery approval was granted by the Council in December 1996 and access to the land was to be by way of the easement. The right of way easement over the Primrose property in favour of the occupiers of 37 Woondum Road is in very broad terms and is unrestricted by reference to the uses conducted upon that property. The cattery approval was staged and subject to a number of conditions.
The boarding kennel approval was granted by this Court on 13 July 1999 after a successful appeal against a Council decision refusing a permit. In January 2004 Mr and Mrs Boyce ceased to use their property for the purposes of boarding kennels and notified the Council, so that at the time Mr Poulton and Ms Mills acquired the property and business in March 2004, it was then operating as a cattery and dwelling only.
I do note however that the Third Respondents (based on the affidavit of Mr Mills affirmed 13 December 2006) do say that they continue to operate the business on the property as kennels and a cattery and had leased the business prior to the purchase of the property. It is not necessary for me to resolve this apparent factual inconsistency for the purpose of the preliminary argument.
THE APPLICATION
In August 2006 Mr and Mrs Primrose applied to this Court seeking a vast array of orders and relief. The application is exceedingly long – Mr Hughes SC calculates it to be 152 paragraphs contained in 25 pages seeking various orders against the three respondents. The declarations and orders sought generally relate to the use of 37 Woondum Road as a cattery and boarding kennel, and access to that property by way of the registered easement over the Primrose property.
As Mr Hughes SC correctly observes in his written submission filed 15 March 2007 Mr and Mrs Primrose purchased their property some years after the use the subject of the town planning permits commenced and many years after the grant of the right of way contained in the easement. He notes also that the application was filed 10 years after the permit to use the adjoining property as a cattery and eight years after the boarding kennel use commenced.
THE PRELIMINARY POINTS
Given the very unusual circumstances under which the application was made, and the extent and nature of the orders sought, it was not surprising that, on the first return date of the application, 14 November 2006, the respondents identified a preliminary issue as follows:
“(a) the extent to which the Originating Application herein, or any part of it, ought to be struck out as being:
Vexatious, or
Embarrassing in that it seeks relief either not known to the law, or beyond the jurisdiction of this Court;
By order made that day each party was required to file and serve any affidavit material in relation to the preliminary issues and I have read all this material. Again, unsurprisingly, an attempt to settle the matter mandated by the 14 November 2006 order was unsuccessful. The matter could not proceed on the one day set down for the preliminary hearing in Gympie in February 2007 and was then transferred to Maroochydore by consent, and on 13 February 2007 orders were made by way of direction governing the timing of submissions in relation to the preliminary point. As a result of that order the matter was mentioned by telephone on 8 May 2007 at which time all of the submissions had been filed. I determined then, with the agreement of all parties, that a further oral hearing in relation to the preliminary matter was not required and I reserved my decision on the preliminary point.
The application seeks a wide variety of orders, some of which are quite nonsensical. Generally speaking, in so far as one can understand, it seeks declarations that: conditions of the approval have been breached and that development offences have been committed; that (primarily) the council has breached a duty of care (presumably to the Primroses but this is not specified) by failing to enforce various conditions; damages be awarded for trespass and/or nuisance relating to the easement (although not pleaded in this way); and other general non-specific orders including allegations of contempt of court. As an example of a completely nonsensical order sought in the application (of which there are many) I set out paragraph 10 of the Application which relates to the cattery permit:
“Declaration that the first respondent has been assiduous in seeking to protect their interest, but have shown scant regard for, their own conditions stated upon Town Planning Consent Permit no. 806 and, the resultant damage to the applicant.”
Paragraph 11 seeks to restrain Council and Mr and Mrs Boyce from carrying on the use as a cattery when obviously (even on the applicants’ own confused material) neither are carrying on the use and of course the Council has never carried on the use.
Paragraph 18 (which appears to relate to the boarding kennels use) seeks a declaration that the assessment managers’ acceptance of the Development Application was ultra vires and paragraph 22 alleges a specific development offence i.e. a breach of s4.3.7 Integrated Planning Act 1997 (Qld) (the IPA) without stating who it is that has committed the offence. Clearly the applicant has no standing to prosecute anyone for such a breach (s4.3.18(3)(b)), and in any event proceedings of this nature are governed by Division 4 of Part 3 of the IPA and are prosecuted (by the appropriate complainant) in the Magistrates Court.
I stress that these paragraphs are merely examples, there are many others. I agree with the submission of Mr Hughes SC that the application clearly offends Rule 149 of the Uniform Civil Procedure Rules.
In so far as one can ascertain from reading the Application and the material filed by the applicant in support of it, the main complaint of the applicants seems to relate to the access road over the right of way easement both by reference to its construction and use particularly by the third respondents. As Ms Mills says in her affidavit, she and Mr Poulton became aware of disputes (generated by the applicants) about the access track after they had entered into a contract with Mr and Mrs Boyce to purchase their property but before they settled. On legal advice they decided to proceed to completion and thereafter they commissioned a survey of the track (see BM7 to Ms Mills affidavit affirmed 13 December 2006) which indeed revealed minor incursions of the track into the applicants’ property and outside the registered easement. This in turn created adverse correspondence between solicitors for the 2nd and 3rd respondents and it appears (although for present purposes not necessary for me to decide) that the third respondents have taken steps to ensure that there is no further encroachment. This Court does not have jurisdiction to adjudicate on claims in tort or to award damages for example, occasioned to the applicants by encroachment into their land by the access track, or the use of it to access the cattery business.
I do not intend to deal with each and every order sought in the application. As a whole, it is clearly vexatious, that is “productive of serious and unjustified trouble and harassment…” per Deane J in Oceanic Sunline Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247 as referred to by Williams JA in Mudie v Gainriver P/L & Anor (2002) 124 LGERA 393 at 412, in the sense that it is excessively and unnecessarily long, confusing and therefore embarrassing to all respondents. This pleading also meets the descriptions of “vexatious” as described by Williams JA elsewhere in his Honour’s judgment e.g. “lacking sense”; “instituted without sufficient grounds for winning purely to cause trouble or annoyance for (the respondents)”. Mudie of course must be read in the context that the Court was considering the meaning of the terms “vexatious or frivolous” in s7.6(1A)(a) of now repealed legislation governing planning matters which words are replicated in s4.1.23(2)(b) of the IPA in relation to costs. It is obvious that in relation to Mr and Mrs Boyce many of the orders sought against them have no utility as they have not owned the property or had the benefit of the town planning permits for some years.
This Court’s power to make declarations derives from s4.1.21 of the IPA, and I am satisfied that this application is not brought for any of the purposes set out in s4.1.21(1). As I have noted by reference to a number of examples, the applicants’ case fundamentally does not involve planning issues in the context of the Court’s power to make declarations; rather it is for an ulterior purpose and this is alleged civil claims involving the registered easement and the use by the past and present occupier of the land on which the cattery business is operated of that easement for access purposes.
I agree with Mr Hughes SC when he submits (at 33 of his written submissions) that even if parts of this confusing and prolix pleading could be regarded as touching on matters contemplated in s4.1.21(c), on discretionary grounds, I would not entertain such matters for the reasons enunciated by him namely:
· The long history of the existence of the easement (in other words, the easement was not created by or in connection with either of the permits);
· The time that has elapsed since the uses were approved;
· The long period of the existence of the uses;
· The fact that the relief sought is not appropriate relief for the applicants’ alleged problems; and
· The fact that, in any event, the allegations concern, in the main, technicalities in that the alleged “breaches” themselves have no impact on the applicants.
Some of the orders sought seek to impugn the Court Order made in July 1999 which was a final and conclusive order not affected by any appeal. The applicants are endeavouring now impermissibly to go behind that order and the lawfully obtained early permit issued by Council.
I have already noted examples of orders sought which call for remedies unknown to law. Other orders e.g. those seeking orders that some party is in contempt of court would fail for the obvious reason that the applicants have no lawful standing to seek such orders.
I order that the originating application, in its entirety, be struck out for the reasons stated.
COSTS
All parties have made submissions as to costs. All respondents are entitled to their costs of the proceedings pursuant to s4.1.23(2)(b) and I intend to so order. At the hearing on 8 May 2007, it was agreed that my reasons would be published in open court without requiring the parties to attend in person, and I publish my reasons today. I note that the solicitors for the second respondents wrote to the applicants on 27 November 2006 after service of the application but before the first return date informing them of their clients’ intention to apply for effectively the orders I have now made. In light of that I will allow any respondent to file and serve a further written submission on the question of costs by 29 July 2007. I will permit the applicants until 17 August 2007 to respond to any submission, and the respondents to reply by 22 August 2007 if they wish. I will make final orders in relation to costs at 9.30am 24 August 2007. I have selected these dates because the Court has been advised the Mr and Mrs Primrose will be away until 29 July 2007.
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