Sinnathamby v Purcell
[2002] QPEC 65
•20 September 2002
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Sinnathamby & Anor v Purcell & Ors [2002] QPEC 065
PARTIES: MAHALINGAM SINNATHAMBY AND
YOGAMPIKAY SINNATHAMBY
Applicants
and
CAROLYN MARY PURCELL, ALEXANDER HAGUE JOLLY AND EDITH ELIZABETH JOLLY
Respondents
FILE NO/S: 155 of 1999 DIVISION: Civil Jurisdiction PROCEEDING: Application for interim enforcement order ORIGINATING COURT: District Court Brisbane
DELIVERED ON: 20 September 2002 DELIVERED AT: Southport HEARING DATE: 26 July 2002 JUDGE: Alan Wilson SC, DCJ ORDER: Applicants to pay respondents’ costs of and incidental to the application assessed on the standard basis
CATCHWORDS: LOCAL GOVERNMENT – INTERIM ENFORCEMENT ORDER – COSTS – Applicants seeking interim enforcement order against respondents alleged to be wrongly removing vegetation – applicants failing to prove there was a serious question to be tried, or that the balance of convenience favoured the making of an interim enforcement order – whether applicants should pay respondent’s costs
Integrated Planning Act (1997)
Cases considered:
Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council (1997) QPELR
O’Connor v Herberton Shire Council (1998) QPELR
R D Williams Tractors Pty Ltd v Queensland (1998) QPELR
Tait v Townsville City Council (2001) QPELR
COUNSEL: Mr Connor (solicitor) for applicants
Mr O’Brien for respondents
SOLICITORS: Connor O’Meara for applicants
W T Purcell Chadwick & Skelly for respondents
Background
The applicants own property which adjoins that of the respondents in the vicinity of Chapel Hill Road, Chapel Hill. In 2001 the respondents sought to rezone their land at 212-220 Chapel Hill Road, described as Lot 1 on RP 80491 and Lot 1 on RP 136948 Parish of Indooroopilly from the future urban zone to the residential A zone, and to subdivide that land into 10 allotments. Approval was granted by the Brisbane City Council, but subject to conditions against which the respondents appealed. The applicants were shown as respondents by election in that appeal (P & E Appeal No. 173 of 1999).
On 2 May 2001 that appeal was resolved by consent and an order was made allowing it, and approving the respondents’ development application subject to amended conditions in an “Approval Package” attached to the order. The documents comprising that Package included a Landscape Concept Plan 0045-1 (Edition C), and Landscape Details 0045-02 (Edition B). The Plan showed the retention of an existing 10m wide vegetative screen on the southern boundary of the respondent’s land, immediately adjacent to the applicant’s property. The Package also included, however, a section headed “Environmental Management” which provided that before the commencement of any site works on the respondents’ land they lodge and receive approval for a Vegetation Management Plan which was:
“…to incorporate and be consistent with the approved Landscape Concept Plan, including the minimum buffer distances specified in Condition 6 of this approval and Landscape Details, Condition 1, and be able to be read in conjunction with the approved building location envelope plan required by Condition 5.”
The Landscape Concept Plan also contained a legend indicating that within the 10m buffer zone there would be some reinforcement planting.
On or around 24-25 July 2002 vegetation was removed from within this buffer zone by heavy machinery leaving, as photographs showed, quite a wide section in the middle of it almost entirely denuded down to bare earth. The vegetation on either side of this corridor was, however, largely untouched.
On 25 July 2002 the applicants’ solicitors sent the respondents’ solicitors a letter reading, relevantly:
“Our client is gravely concerned that works, they have witnessed on your client’s land in the last few days, do not comply with the terms of the development permit for subdivision given by the Court on 2 May 2001.
The source of that concern relates to the clearing of existing vegetation within the 10m buffer corridor shown on plan 0045-01 (edition C) namely, a corridor roughly six metres wide, approximately two metres from the common boundary of our respective clients’ properties.
If we have not received an explanation satisfactory to our client by 11.30 a.m. tomorrow we are instructed to commence urgent proceedings in the Planning and Environment Court to seek urgent relief including restraining any further clearing.
We await your urgent response.”
By letter 26 July 2002 the respondents’ solicitors replied advising, inter alia, that:
“(a) The clearing of the corridor had been undertaken pursuant to a vegetation management plan submitted to and approved by the Brisbane City Council for the purpose of the construction of a sewer.
(b) The vegetation cleared in the corridor consisted of understorey scrub and did not include the removal of any mature trees.
(c) The clearing work in relation to the corridor had been completed and no further clearing work was to take place in the corridor.
(d) Pursuant to the VMP, any areas that had been cleared of vegetation in the corridor would be reinstated and revegetated in accordance with the Plan and the VMP.”
The solicitors for the applicants responded by letter later on 26 July asserting that their clients remains “unpersuaded” by the information from the respondents’ solicitors, and advising an urgent application would be brought at 3 p.m. that day.
At the hearing that afternoon the applicants were given leave to file an originating application and supporting affidavit. The application sought orders:
“1. for a declaration that existing vegetation has been removed from land at 212-220 Chapel Hill Road, Chapel Hill in contravention of the subdivisional approval given by this Honourable Court on 2 May 2001;
2. an Order that the Respondent has committed a development offence;
3. an order that the Respondent, its servants or agents or contractors be restrained from removing additional vegetation in contravention of the subdivisional approval.”
The applicants’ legal representative Mr Connor handed up, with the documents filed by leave, a draft order in the terms sought by his clients which, on its face, restrained the respondents and their contractors, servants or agents from removing any further vegetation “until further order”. Hence the relief sought was not for some short, definite period and, if granted, would have required the respondents to apply at some later time to lift it.
At the conclusion of the hearing I delivered short reasons, and dismissed the application. Relevantly, it was found that:
(a)the application was effectively for an interim enforcement order under the
Integrated Planning Act 1997 (IPA) s 4.3.24;
(b)in an application of that kind the applicants were obliged to show there was a serious question to be tried, and the balance of convenience favoured the grant of what was, effectively, injunctive relief;
(c)I was not persuaded there was a serious question to be tried. There was no doubt the Landscape Concept Plan showed a buffer, but the VMP and associated permits from the Council made it clear the respondents were entitled to perform the clearing work of which the applicants complained.
(d)the balance of convenience did not favour the granting of the relief sought and, in fact, weighed in the respondents’ favour. The applicants produced no evidence of any loss or potential loss, or detriment or disadvantage save, at worst, a possible but very minor loss of amenity, but the respondents’ evidence clearly showed a serious risk of significant financial disadvantage to them if an order was made. It was also relevant that, as I found, the clearing work had effectively been completed.
The parties were given liberty to apply in respect of the costs of the application. Subsequently, the respondents delivered a written application for an order that the applicants pay their costs, with supporting submissions. The applicants’ submissions in response were delivered on 10 September.
Costs
Under IPA s 4.1.23(1) each party to a proceeding in this Court must bear its own costs; but, costs may be ordered as the Court considers appropriate, in the following circumstances:
“4.1.23(2) …
(a)The Court considers the proceedings instituted merely to delay or obstruct;
(b)The Court considers the proceeding (or part of the proceeding) to have been
frivolous or vexatious;
…”
The respondents contend both these criticisms apply to this application.
There has been little judicial attention to the term “instituted merely to delay or obstruct”. Obstruction of the relevant kind was found in Tait v Townsville City Council (2001) QPELR 268 (at 271), but that case also involved a party whose conduct was held to have been frivolous, or vexatious and the facts were markedly different from those set out above. The word “merely” means “only as specified, and nothing more; simply” (Macquarie Dictionary, second edition) and there is no evidence these proceedings were commenced with the simple purpose to delay or obstruct the respondents. Indeed, there was some evidence to suggest the contrary: the applicants knew of the terms of the Landscape Concept Plan and when, without warning, vegetation was removed were probably moved to conclude that the respondents were acting inconsistently with it. While the manner in which the applicants fashioned their claim for relief is not entirely consonant with a desire to minimise interference with the respondents’ work, I accept they were motivated by something more than a mere desire to impede those works.
S 4.1.23(2)(b) has been the subject of more judicial attention and cases on point suggest that before proceedings will be categorised as frivolous, or vexatious:
(a) something considerably more than lack of success needs to be shown before any proceeding can be described in those terms: Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council (1997) QPELR 84;
(b) to qualify, the proceedings must be manifestly groundless: R D Williams Tractors Pty Ltd v Queensland (1998) QPELR 26;
(c) a party’s arguments will not be so categorised so long as they were, at least, arguable, even if not overburdened with merit: O’Connor v Herberton Shire Council (1998) QPELR 485;
(d) the party’s good faith, and the question whether the proceedings were intended merely to annoy or embarrass, are relevant issues: Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council (supra).
The Macquarie Dictionary, second edition, defines “vexatious” proceedings to mean “instituted without sufficient grounds and serving only to cause annoyance”. Similar dictionary definitions were canvassed by Newton DCJ in Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council (supra).
Two matters indicate this application was brought precipitately, and without sufficient grounds: first, the applicants were told before they brought it that the clearing of the corridor had been undertaken pursuant to a VMP submitted to and approved by the Council, for sewerage purposes. Secondly, they failed at the hearing to lead any evidence which contradicted anything in the respondents’ solicitors letter of 26 July; or, which showed that there was any risk that further clearing would take place; or, from either of the applicants, anything suggesting some loss, damage or injury relevant to the balance of convenience; or, indeed, any evidence relevant to that question at all. The application was brought, the evidence shows, at a time when the applicants had simply rejected the information from the respondents’ solicitors and, I think importantly, had not deigned to seek a copy of the VMP or, apparently, to check with the Council to determine whether or not the respondents were acting with its approval. Rather, they simply moved the Court for an indefinite injunctive order.
In my reasons I expressed a measure of sympathy for the applicants in that, once the original appeal proceedings were finished, they had no ongoing right to be kept informed about further development permits, or any changes in the terms of the Approval Package attached to the Court’s order. That is not to say, however, that the fact they were in something of a vacuum so far as relevant information was concerned is an appropriate ground for applications of this kind, or a satisfactory defence on the question of costs. In light of what the applicants knew, including their own inability to present any evidence suggesting the balance of convenience favoured the granting of an interim enforcement order, the application should not have been brought. In any event, it should never have been brought unless and until they had conducted further investigations and inquiries concerning the VMP and/or changes in the Landscape Concept Plan. Nothing in the evidence suggests the respondents would, for example, have declined the request for a copy of the VMP or relevant permit documents.
The absence of any evidence to suggest the balance of convenience weighed in favour of injunctive relief meant the application was manifestly groundless. It was not supported by sufficient grounds or, indeed, any proper grounds at all. Those findings make it reasonable to conclude it was not brought in good faith. Those circumstances warrant the application being categorised as frivolous or vexatious
It is, then, an appropriate case in which to order costs against the applicants.
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