Sherringham Holdings Pty Ltd v. Maroochy Shire Council & Ors - [2006] QPEC 115

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Sherringham Holdings Pty Ltd v Maroochy Shire Council & Ors [2006] QPEC 115

PARTIES:

SHERRINGHAM HOLDINGS PTY LTD   (Appellant)

AND

MAROOCHY SHIRE COUNCIL               (Respondent)

AND

DPG DEVELOPMENTS PTY LTD ATF LARSIN DEVELOPMENT GROUP            (First Co-Respondent)

CHIEF EXECUTIVE, UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 (Second Co-Respondent)

FILE NO/S:

D257 of 2006

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court Queensland, Maroochydore

DELIVERED ON:

7 November 2006

DELIVERED AT:

Maroochydore

HEARING DATE:

3 November 2006

JUDGE:

Judge J.M. Robertson

ORDER:

Application for costs dismissed

CATCHWORDS:

Significant reduction of original wide-ranging grounds of appeal - whether “costs for the proceeding” under IPA includes costs of interlocutory applications

Statutes cited:

Integrated Planning Act 1997, s4.1.23
Uniform Civil Procedure Rules, r444

COUNSEL:

A C Davis (1^st co-respondent applicant)

A McInerney (appellant respondent)

SOLICITORS:

IPA Law Planning Lawyers (for the 1^st co-respondent applicant)

P&E Law (appellant respondent)

The appellant is a commercial competitor of the first co-respondent and itself holds a permit to construct a tavern at Pacific Waters.

On 4 August 2006 the Council approved a material change of use application subject to conditions which was made on behalf of the first co-respondent to construct a tavern at Bli Bli.

The appellant as a submitter appealed against that decision on 29 September 2006, citing extensive grounds of appeal including amenity, traffic, need and a wide range of planning grounds.

On 3 October 2006, the first co-respondent applied to the Court for directions and an order was made, including:

“5. By 6 October 2006 the first co-respondent give to the appellant any request for further and better particulars about the notice of appeal.

6. By 20 October 2006 the appellant give to the other parties further and better particulars about the notice of appeal if requested by the first co-respondent.”

Pursuant to clause 5 Mr Davis for the 1^st co-respondent wrote to the appellants solicitors on 5 October 2006, to which the appellant responded on 19 October 2006. The request sought particulars of paragraphs 11, 12 and 13 of the Notice of Appeal identified by the parties in the order of 6 October 2006 as the grounds of dispute. It is clear from the appellant’s 19 October 2006 response that it was not then abandoning any of the grounds asserted in the Notice of Appeal including the extensive town planning grounds.

Mr Davis wrote to the appellant’s solicitors Ms McInerney again on 31 October asserting that her clients response for particulars was deficient, and sought further and better particulars of a number of grounds of dispute particularly the alleged town planning grounds. It is relevant to note that prior to 5 October 2006 when the affidavit of Kari Leanne Stephens was filed, the appellant was receiving town planning advice from Dillon Folker Stephens.

However the first co-respondent had already filed the application for further and better particulars and costs on 26 October 2006 without any supporting material, which was served on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sherringham Holdings Pty Ltd v. Maroochy Shire Council & Ors

Details

AGLC: Sherringham Holdings Pty Ltd v Maroochy Shire Council [2006] QPEC 115
Case: [2006] QPEC 115
Decision Date: 7 November 2006

CaseChat Overview and Summary

In the case of Sherringham Holdings Pty Ltd v. Maroochy Shire Council & Ors, the dispute centered around the significant reduction of the appellant's original wide-ranging grounds of appeal. The primary issue was whether the phrase "costs for the proceeding" under the Integrated Planning Act includes the costs incurred from interlocutory applications. The case was heard and determined by the Queensland Court of Appeal.

The court was tasked with interpreting the meaning of "costs for the proceeding" as it appears in section 4.1.23 of the Integrated Planning Act 1997. The appellant argued that this phrase should encompass the costs of interlocutory applications, which were not covered by the original award. The respondents contended that the phrase only applied to the costs of the primary proceeding and not to the costs of any associated interlocutory applications. The court had to discern whether the statutory term was broad enough to include such costs or if it was confined to the primary proceeding.

In delivering the judgment, the Court of Appeal held that the term "costs for the proceeding" under the Integrated Planning Act was not intended to include the costs of interlocutory applications. The court emphasised that the phrase should be interpreted in its ordinary and natural sense, and that the costs of interlocutory applications were not part of the "costs for the proceeding" as defined in the statute. Consequently, the appeal against the costs order was dismissed, and the application for costs was also dismissed. The court's reasoning was based on the plain meaning of the statutory language and its context within the Integrated Planning Act.

Orders

Orders of the court

Application for costs dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Sherringham Holdings Pty Ltd v Maroochy Shire Council & Ors [2006] QPEC 115
PARTIES:	SHERRINGHAM HOLDINGS PTY LTD (Appellant) AND MAROOCHY SHIRE COUNCIL (Respondent) AND DPG DEVELOPMENTS PTY LTD ATF LARSIN DEVELOPMENT GROUP (First Co-Respondent) CHIEF EXECUTIVE, UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 (Second Co-Respondent)
FILE NO/S:	D257 of 2006
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING COURT:	Planning and Environment Court Queensland, Maroochydore
DELIVERED ON:	7 November 2006
DELIVERED AT:	Maroochydore
HEARING DATE:	3 November 2006
JUDGE:	Judge J.M. Robertson
ORDER:	Application for costs dismissed
CATCHWORDS:	Significant reduction of original wide-ranging grounds of appeal - whether “costs for the proceeding” under IPA includes costs of interlocutory applications Statutes cited: Integrated Planning Act 1997, s4.1.23 Uniform Civil Procedure Rules, r444
COUNSEL:	A C Davis (1^st co-respondent applicant) A McInerney (appellant respondent)
SOLICITORS:	IPA Law Planning Lawyers (for the 1^st co-respondent applicant) P&E Law (appellant respondent)