Redland City Council v Wood

[2014] QPEC 5

[2014] QPEC 5

PLANNING AND ENVIRONMENT COURT

JUDGE R S JONES

P & E No 4753 of 2013

REDLAND CITY COUNCIL  Applicant/Respondent

and

GREGORY MARK WOOD  Respondent/Applicant

BRISBANE

2.36 PM, TUESDAY, 25 FEBRUARY 2014

EX TEMPORE JUDGMENT

.

HIS HONOUR:   I am concerned with an application by the Redlands City Council to have the respondent’s originating application dismissed.  The respondent is a fisherman who operates within an urban area of the applicant. 

By way of giving some background to these proceedings, I largely repeat what I said in the reasons given in my decision on Wood v Redland City Council [2011] QPEC 50. The respondent is a professional fisherman who, since the 1990s, had operated a business from the subject land, 31 Drevesen Avenue, Cleveland. That street forms a part of a residential neighbourhood which by and large comprises of typical residential development, albeit on slightly larger lots. Under the Council’s 1998 planning scheme, the land was zoned residential A and the preferred dominant land use was urban residential. The business being conducted on the land involved the loading of outboard-driven fishing boats, the towing to and from the subject land of those vessels and, on return from fishing, their unloading and cleaning and other activities including cleaning, cooking, freezing and the storage of crabs. There was also an allegation that at various times, the appellant had also sold crabs on a commercial basis from the land but that allegation was not pursued in the proceedings dealt with me on the previous occasion. I am unsure as to whether the respondent’s intended activities would still include the loading of two outboard fishing vessels and the towing to and from the subject land, and I intend to proceed on the basis that they do not.

On 22 September 1997, the Council issued, subject to various conditions, a town planning consent permit under the then-Local Government Planning and Environment Act 1990 which was granted under the heading, Home Occupation, Cooking and Storage of Seafood. Pursuant to condition 2M of that permit, the permit ceased to have effect on 30 August 1998. Upon application by the respondent on 23 July 1998, the Council amended that condition to extend its validity through to 30 August 2001.

Following 30 August 2001, the respondent continued to operate a business on the subject land.   On 23 January 2002, the Council wrote to the appellant, advising him that the permit or approval had lapsed.  There appears to have been some debate about whether or not the respondent had applied for a further extension of the operational period of the permit.  However, the Council proceeded on the basis that such an application had been made and lost, and on 8 August 2002, advised the appellant relevantly to the effect that condition 2M would, for all material intents and purposes, extend the operation of the business on the subject land through to – as best I can make out - through to 30 or 31 March 2005. 

In March 2005, the respondent then lodged a request to change the existing approval under the then Integrated Planning Act.  On 13 February 2006, the Council advised the respondent that his application was refused.  The respondent appealed that refusal.  The matter came before me originally on 15 and 16 March 2011 and on 28 March 2011, I handed down my reasons and made a number of orders including that the respondent’s appeal was dismissed.  Other declaratory relief was granted which relevantly for the purposes of today’s proceeding, declared that the business then being operated on the subject land was unlawful and constituted a development offence.  The respondent appealed that decision to the Court of Appeal.  The Court of Appeal, save for dealing with a technical matter concerning the exact wording of the appropriate declaration, otherwise dismissed the appeal. 

Subsequent to that, again as best I understand it, the respondent had continued to operate his business on the subject land and on 30 October 2012, made a development application to the Council seeking a development permit for a material change of use for home, business, cooking and storage of seafood.  On 4 October 2013, the respondent refused that application.  That refusal was communicated to the respondent via a decision notice dated 8 October 2013.  Of course, the respondent could have appealed against the decision of the Council but did not do so within the relevant time frame, namely 6 November 2013.  Accordingly, any appeal against that decision could only proceed with the leave of this court. 

Instead of instituting proceedings by way of an appeal, on 12 December 2013, the respondent filed what was described as an originating application which was said to be made pursuant to section 680F of the Sustainable Planning Act 2009. That section relevantly provides for the registration of certain activities in urban areas. In particular, it provides;

“…the owner of premises may apply to the Minister for registration of the premises under this part if –

(a) an activity carried out at the premises involves the emission of aerosols, fumes, light, noise, odour, particles or smoke and;

(b) the activity is not a mining activity or a chapter 5A activity; and

(c) the levels of emissions of the aerosols, fumes, light, noise, odour, particles or smoke are in compliance with the following –

(i) the development approval for the premises;

(ii) any code of environmental compliance applying to the activity.”

It is clear that section 680F of the Sustainable Planning Act has no relevance.  First, it is concerned with the registration of lawful uses which generate emissions which may affect urban amenity.  Upon registration, such uses are afforded some protection against legal actions brought, by way of example, nuisance, trespass or other relevant torts.  Here, the use on the evidence before me is still an unlawful use and the relief applied for is not concerned with either the registration of the use nor some form of immunity against prosecution. 

Most likely, on becoming aware of the limitations of 680F, the respondent sought to amend his originating application. That amended document became exhibit 1 in this proceeding. Under the amended originating application, the respondent sought relief pursuant to sections 481 and 482 of the Sustainable Planning Act.  The amended originating application contained a number of extra or additional assertions but essentially the relief sought was identical to that sought in the originating application.  And in particular, the respondent sought, “a declaration that the applicant’s use of the land described as lot 42 of AP118194 and located at 31 Drevesen Avenue, Cleveland (the land) for the purposes of processing, cooking, and storage and transport to the point of sale of seafood and a development permit for the material change of use be granted.” 

In paragraph 6 of his affidavit filed by leave today, the respondent contended for a fallback position in that if I were not inclined to make the declarations sought, I should order an alternate dispute resolution process. For reasons which will become apparent, I do not consider that I have the power to make such an order and in any event, it would inappropriate to make such an order at this stage. Section 481 of the Sustainable Planning Act deals with how appeals to this court are to be commenced. Section 482 deals with a number of formal matters. Both sections 481 and 482 identify that among other things, the notice of appeal must set out the grounds of appeal.

The amended originating application of the respondent fails to meet in the most fundamental way, the requirements of section 481 and 482 of the Sustainable Planning Act.  Apart from not being in the approved form, a matter which can often be dispensed with, it does not set out in any meaningful way grounds of appeal nor does it comply in any meaningful with the rules of this court.  Further, it ignores the fact that to prosecute a notice of appeal, the leave of this Court is now required.  No meaningful attempt was made to convince the Court that, on this occasion, good grounds might exist to justify leave being granted.

At one stage, the respondent sought to rely on section 481, subsection (4) to justify the matter being dealt with today as if it were, in effect, a notice of appeal. That submission, however, fails to recognise that the operation of subsections (3) and (4) of section 481 are concerned with non-compliance of rules of the Court, but otherwise proceeds on the basis that a notice of appeal in accordance with the Act and the rules of this Court is on foot.

At the end of the day, it is simply not only impractical to deal with the respondent’s application on the basis of it being an appeal, but it is also impossible. In any event, the originating application and the amended application seeks relief this Court is not able to make. That is, the Court does not have the jurisdiction to grant the relief sought. Section 456 of the Sustainable Planning Act relevantly provides;

“Court may make declarations and orders
(1) Any person may bring a proceeding in the Court for a declaration about any of the following –
(a) a matter done, to be done or that should have been done for this Act other than a matter for chapter 6, part 11;
(b) the construction of this Act, planning instruments and master plans under this Act and guidelines made under section 117, 145, 627 or 630(1);
(c) the construction of a land use plan…..;
(d) the lawfulness of land use or development.”

Clearly, subsections (a), (b) and (c) are of no relevance here. As I understand his argument, the respondent contended that I had the power to grant the relief sought, as the proceeding was concerned with the lawfulness of land use or development. Reliance was placed in this respect – again, if I understand the respondent’s submissions correctly – on section 1.4.1, subsection (1) of the Integrated Planning Act 1997, which provides, “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 March – on 30 March 1998.”

This submission fails to take into account a number of matters.  First, that the permit relied on to show that the use was lawful was one that clearly contained a sunset clause setting a date at which operation was to cease.  Further, it fails to take into account the findings of this court that the use was, in fact, unlawful and of course, that finding was upheld by the Court of Appeal.  Whether or not the intended uses of the land ought to now be permitted involves matters of fact which could only be assessed after a consideration of the merits of the case for the respondent.

For the reasons given, I find that in addition to all the other problems that I have identified, this Court, in any event, would not have the jurisdiction to grant the relief sought.  As I advised the respondent at the outset, this matter cannot be determined by reference to feelings of sympathy.  It has to be determined on the established evidence and the applicable law, and in my view, for the reasons given, the appropriate order of this Court must be that the application be dismissed and that leave to file the amended application be refused, because it, like the original originating application, was clearly doomed to fail.

The applicant Council seeks its costs of this proceeding.  There has been a significant shift in the philosophy applicable to the making of cost orders by this Court.  The starting point is no longer that, ordinarily, each party is to bear its own costs regardless of the outcome.  The shift has not gone so far as to enshrine the usual rule that costs follow the event.  Instead, costs are at the discretion of the court, but in exercising that discretion, the Court may have regard to a number of matters set out in subsection (2) of section 457. 

In this case, the appellant Council has been entirely successful in its application and the respondent unsuccessful, and the respondent’s application was commenced not only without any meaningful regard to the relevant legislation and rules of the Court, but also without any prospects of success.  In my view, there are no public policy or interest considerations applicable in this case. 

The respondent effectively contended that costs should not be ordered against him for two reasons.  First, the appellant Council has continuously failed to treat his applications appropriately and has prosecuted a vendetta against him.  I was not taken to any probative evidence to justify those allegations.  The second contention was that the respondent should not be ordered to pay costs, as he is only a layman and not a lawyer.  This submission fails to recognise two important matters.  First, costs orders are not made to punish the unsuccessful party but to indemnify the successful party in respect of those costs it has had to incur in either defending or prosecuting the necessary proceedings.   Second, and importantly in my view in this case, the respondent was given two opportunities to abandon his application without exposing him to cost orders. 

On 28 January, the Council wrote to the respondent, in effect advising him that, as pleaded, his application was doomed to fail but that if he discontinued, the Council would bear its own costs to date.  That offer was extended on 31 January 2014.  Neither of the offers was accepted by the respondent and thereafter, not unreasonably in my view, the Council had to prepare to prosecute this matter, including the briefing of counsel. 

For the reasons given, I make the following findings.  (1) The respondent’s originating application, filed on 12 December 2013 was at all times one doomed to fail.  (2) The respondent’s amended originating application, exhibit 1, was also, essentially for the same reasons, always doomed to fail.  (3) This is an appropriate case, warranting cost orders in favour of the applicant Council.

Accordingly, the orders of the Court are:
(1) The originating application, filed 12 December 2013, is dismissed;
(2) Leave to file the respondent’s amended application is refused; and
(3) The respondent is to pay the Council’s costs of its application to have the       respondent’s originating application dismissed. 

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