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)

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

1. 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.

1. 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.

1. 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.”

1. 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.

1. 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.

1. 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 27 October 2006 on Ms McInerney. It is common ground that Mr Davis had not given Ms McInerney prior notice of his intention to file an application which she submits is contrary to rule 444 of the Uniform Civil Procedure Rules.

1. It appears that the further request came about as a result of a letter from Ms McInerney dated 27 October in which she sought details of the alleged deficiency in her early response.

1. On 1 November Ms McInerney advised all parties that her client abandoned all the previous grounds apart from a car parking issue which, I am told, arises because of an amendment to the relevant Code which came into effect after Council’s decision to approve the application.

1. Today, a further directions order was made in the light of the vastly reduced grounds of appeal which effectively amended the earlier order made 6 October 2006.

1. The only remaining issue is the first co-respondent’s application for costs which is pursued by Mr Davies.

1. Mr Davies submits that his application is governed by s4.1.23 of the Integrated Planning Act and in particular he argues that his client has incurred costs “because another party has defaulted in the court’s procedural requirements”: s4.1.23(e).

1. Although this issue was not argued, I am inclined to the view that an application for the costs of an interlocutory application such as this in the course of proceedings by way of appeal under the IPA, are governed not by s4.1.23 but by the UCPR. I hold this tentative view firstly having regard to the wording of s4.1.23(1) and the preamble to sub-section 2 which refers to the “costs for the proceeding”. In my view, as costs of interlocutory applications are not governed by the rules of the Planning and Environment Court, recourse should then be had to the UCPR, and in particular Chapter 17, Part 2, Divisions 1 and 2.

1. It is not necessary for me to decide this point in the context of this application and it would be inappropriate to do so without giving the parties an opportunity to be heard.

1. It is not necessary because if the Rules apply, the first co-respondent has not complied with rule 444 and I would not order costs on that basis alone. If s4.1.23 of the IPA applies, then I am not satisfied that the appellant has failed to comply with the court’s procedural requirements.

1. Having said that, I have to say that this appeal is an extreme example of a common practice in proceedings of this kind, involving a wide-ranging pleading of grounds of appeal to include almost every conceivable ground of appeal that one could imagine in a tavern case.  From the extensive issues in dispute identified to the Court on the 6 October 2006, within a few weeks, due I am sure to the determination of Mr Davis, the appellant has fallen back on what appears to be a relatively simple disputed issue.

1. It must be very frustrating to the other parties in a case like this to have, at the very least, to prepare for wide-ranging issues and to incur costs in doing so to find that it is largely unnecessary. Mr Davis specifically disavowed any reliance on s4.1.23(b) and the cases involving that section, nor could he on the evidence before me and at this early stage in the proceedings. It may well be necessary for the rules of the Court to be amended, to provide some discouragement to the practice of pleading wide-ranging grounds of appeal in a notice of appeal which lead other parties into unnecessary expense. Having said that, it is clear that the strict procedural rules of court have worked very well such that an appeal that was estimated to take six days on 6 October 2006 will now only take two days.

1. Application for costs is dismissed.