Redland City Council v Canaipa Developments Pty Ltd

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Redland City Council v Canaipa Developments Pty Ltd & Ors [2021] QPEC 62

PARTIES:

REDLAND CITY COUNCIL

(Applicant)

v

CANAIPA DEVELOPMENTS PTY LTD

(First Respondent)

and

IAN ROBERT LARKMAN

(Second Respondent)

and

TLC JONES PTY LTD

(Third Respondent)

FILE NO/S:

4703 of 2019

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

5 November 2021

DELIVERED AT:

Cairns

HEARING DATE:

20 May 2021

JUDGE:

DP Morzone QC DCJ

ORDER:

The first and second respondents pay the applicant’s costs of the proceeding, including the application for the interim enforcement orders and reserved costs, to be assessed on the standard basis.1.   

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPLICATION – COSTS - final enforcement orders compelling compliance with a lawful and functioning on-site sewage and wastewater treatment system - whether the first and/or second respondents ought pay the applicant council’s costs of the enforcement proceeding pursuant to s 60(1)(b) and/or 61(1) of the Planning and Environment Court Act 2016 – whether respondents’ conduct in the proceeding frivolous or vexatious - whether costs be assessed on the standard or indemnity basis.

LEGISLATION:

Environment Protection Act 1994 (Qld)
Planning and Environment Court Act 2016 (Qld) ss 59, 60, 60(1)(b) & 61(1)

CASES:

Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139
BHP Coal Pty Ltd v O & K Orenstein & Coppell AG (No. 2) [2009] QSC 64
Latoudis v Casey (1990) 170 CLR 534
Oshlack v Richmond River Council (1988) 193 CLR 72
Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPELR 662

COUNSEL:

K Wylie for the Applicant

SOLICITORS:

Gadens for the Applicant
Second respondent for himself and as officer of the first respondent.

Summary

1. In the wake of a favourable judgment delivered on 15 December 2020 for enforcement orders against the first and second respondents, the applicant council applies for costs of the proceeding to be assessed on the indemnity basis, or alternatively, on the standard basis.

1. The council seeks costs against both respondents on two bases:

1. that the respondents’ defence of the proceeding was frivolous or vexatious, in that it was defended and maintained without reasonable prospects of success pursuant to s 60(1)(b) of the Planning and Environment Court Act 2016; and

2. that the council was successful in obtaining enforcement orders, which enlivened the broader discretion as to costs pursuant to s 61(1) of the Planning and Environment Court Act 2016.

1. Whilst the respondents accepted that the system was non-compliant and needed replacement, they contended that the council unfairly and precipitously progressed the matter.  They asserted that they used their best efforts to maintain and replace the system, albeit modified and noncompliant in the wake of the manufacturer’s bankruptcy, they were delayed and frustrated by the lapse of one application and council intervention with other applications.  They also disputed any consequential environmental nuisance. 

1. The council was successful in the enforcement proceeding.  I found that the subject…