Smith v Sunshine Coast Regional Council

[2009] QPEC 108

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Smith v Sunshine Coast Regional Council & Anor [2009] QPEC 108

PARTIES:

DEREK ALBERT SMITH  (Appellant)

And

SUNSHINE COAST REGIONAL COUNCIL
  (Respondent)

And

GRAHAM PAUL HENNING AND ROSEMARY M HENNING
  (Co-respondent)

FILE NO/S:

303/08

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court of Queensland, Maroochydore

DELIVERED ON:

6 November 2009

DELIVERED AT:

Maroochydore

HEARING DATE:

23 October 2009 (mentioned on papers and resolved by written submission only)

JUDGE:

Judge Robertson

ORDER:

The application for costs is dismissed

CATCHWORDS:

COSTS – where self represented submitter appellant applies for costs for alleged failure by co-respondent to comply with procedural requirements of Court; where co-respondent withdraws from appeal.

Legislation:

Integrated Planning Act 1997

COUNSEL:

Mr D. Smith for Appellant

Mr. M. Birks for Respondent

Mr. M. Baker-Jones for Co-Respondent

SOLICITORS:

Wakefield Sykes Solicitor for Respondent

P&E Law for Co-Respondent

1. On 5 November 2008 the Sunshine Coast Regional Council approved a Development Application by Mr and Mrs Henning for a material change of use of their property at 430 Black Mountain Road, Black Mountain, Queensland for Visitor Accommodation Type 3 – Rural.  The application was impact assessable and Derek Albert Smith the appellant was an adverse submitter.

1. He commenced these proceedings by lodging a Notice of Appeal on 5 December 2008.

1. The proceedings did not get off to a good start as Mr Smith, who has been self represented throughout according to the court records, named the Minister for Infrastructure and Planning as the respondent and not the Council as the Assessment Manager.

1. Despite the apparent modesty of the proposed development the size of the appeal file suggests a town planning appeal of much more complexity.

1. There have been a number of interlocutory applications including an application which resulted in the Minister being replaced as respondent by the Sunshine Coast Regional Council.

1. On 17 September 2009 Mr and Mrs Henning’s solicitors advised the other parties to the appeal, including Mr Smith and the court that their clients wished to withdraw from participation in the appeal.  In a submission filed on 5 October 2009, Mr Baker-Jones, solicitor for the Hennings explains that his clients exhausted their resources in prosecuting the matter and instructed him to withdraw for that reason.

1. On 18 September 2009, Mr Baker-Jones sought leave for the Hennings to withdraw from the appeal which was granted. Mr Smith is a neighbour of the property the subject of the Development Application. Pursuant to s 4.1.50(2) of the Integrated Planning Act 1997 (the IPA), the Hennings have the onus of establishing that the appeal should be dismissed.

1. As a result of their withdrawal from the appeal it was inevitable that the appeal would succeed in the absence of the developer.  Mr Smith applied for an order in those terms and that order was granted.

1. He made an application for costs which I adjourned to a date to be fixed and orders were made by way of directions in relation to the filing of written outlines by Mr Smith and the Hennings.  Mr Smith did not seek costs against the Council.  The matter was listed for mention on 23 October 2009 to enable me to consider those submissions and the parties were not required to appear.

1. I have received two submissions from Mr Smith.  The first on 25 September 2009 was supported by an affidavit filed on the same day and the second, on 9 October 2009 was in response to a lengthy submission filed by Mr Baker-Jones on behalf of the Hennings on 5 October 2009.

1. Mr Smith’s claim for costs is confined to the costs of a town planner ($1,925), a valuer ($555) and a solicitor ($1,440.31), and his submission is directed at what he submits are aspects of the Hennings conduct since a case management agreement reached by the parties on 10 June 2009.  The case management agreement was reached as a result of a meeting with the ADR Registrar of this court consequent upon some orders made by his Honour Judge Dodds in this court on 9 April 2009. 

1. In other words, Mr Smith’s costs claim is confined to what he says are failures by the Hennings since 10 June 2009 which he submits come within some of the subsections of s 4.1.23(2) of the IPA.

1. Section 4.1.23(1) of the IPA creates a rebuttable statutory presumption that each party to a proceeding in this court should bear their own costs.  Ironically, one of the good public policy reasons behind this provision is to encourage submitters such as Mr Smith to come to court in order to protect legitimate rights consistent with s 1.2.3(f) of the IPA “providing opportunities for community involvement in decision making”.

1. Section 4.1.23(2) of the IPA provides for certain circumstances in which the court’s discretion to order costs can arise if the court considers it appropriate. 

1. A copy of the case management agreement dated 10 June 2009 is exhibited to Mr Smith’s affidavit filed 25 September 2009 in support of his application for costs.

1. As well as an array of town planning issues (paragraph 2), noise, traffic, dams, bush fire management, the valuation of property, and operational matters were stated as potential issues in the appeal.

1. The parties agreed to disclosure by 19 June 2009 and an inspection by 26 June 2009.  Experts that each party intended to call were to be notified by lists by 3 July 2009.  Mr Smith says (in his 9 October submission) that on 3 July 2009 the Hennings notified their intention to call a town planner, and on 10 July 2009 they indicated they would call a sewerage treatment specialist and an acoustics expert.

1. The agreement also provided that the experts (other than town planners) meet on 17 July 2009.  Mr Smith frankly concedes that the experts were unavailable to meet on that date.  The town planners were to meet on 27 July 2009. 

1. The case management agreement conference was adjourned to 14 August 2009 at 9.30 am.

1. On 23 July 2009 the Hennings’ solicitor advised the Registrar and the other parties that he was instructed to “vacate the case management conference”.  Mr Baker-Jones says in his submission (at 17) that the purpose of withdrawing from the case management agreement conference was so that the matter could be returned to the court for direction.

1. Each party makes counter allegations against the other of failures to co-operate or perform the terms of the agreement.  In the end I am satisfied that I can resolve the debate over costs without the need for any further evidence.

1. I cannot detect in Mr Smith’s submissions or the material he refers to any failure by the Hennings to comply with the case management agreement up to the time of the letter of 23 July 2009, such as would amount to default in the court’s procedural requirements: s 4.1.23(2)(e). 

1. Any party is entitled to withdraw from the ADR process and return to court at any time if so advised.

1. What is clear from Mr Smith’s earlier affidavit filed 17 August 2009 is that on 16 July 2009 he advised Mr Baker-Jones that his town planning consultant, Martoo Consulting was no longer available and that he would advise as soon as possible of the appointment of another town planner. 

1. In the same email he advised that he had appointed r + r valuations as his expert valuer.

1. The claim he makes now is for the services of Plan Consult Pty Ltd who obviously replaced Martoo Consulting and for r + r valuations appointed by him on 16 July 2009.

1. By 23 July 2009, Mr Smith was aware that the Hennings were withdrawing from the ADR process which they were entitled to do.  He complains that he incurred these expenses in pursuance of the case management process, most of which expenses were incurred after the Hennings had withdrawn.

1. Plan Consult’s invoice indicates that it commenced work on 27 July 2009.  Mr Smith was perfectly entitled to engage an alternative town planner, however it is not legitimate to sheet home this expense to a failure by the Hennings to comply with any of the court’s procedural requirements.  The expenses of a valuer relate to an issue notified by Mr Smith; not the Hennings, so even if there had been some default, this expense could not have been sheeted home to the Hennings.

1. It is apparent from the solicitor’s invoice that he was first consulted by Mr Smith on 14 July 2009.  Mr Smith was perfectly entitled to engage a lawyer but again there is no default on the part of the Hennings that could be attributed to the incurrence of legal expenses by Mr Smith.

1. Mr Smith also complains about a failure to disclose in breach of paragraph 9 of the case management agreement.  The Hennings’ list of documents was filed on 19 June 2009 and served thereafter on Mr Smith.  He inspected documents at Mr Baker-Jones’ office on 26 June 2009.  He complains about some documents (unspecified) “and information” not supplied.  He has not hitherto complained about any failure to disclose and given the bare facts set out above it is obvious that there has been no default by the Hennings in the procedural requirements of the court.  There is in any event, no attempt to link the so-called failures with the incurring of any of the expenses claimed.

1. Mr Smith also directs his submission to s 4.1.23(b), (g) and (i).  I am not satisfied that the Hennings’ conduct in relation to the case management agreement (as part of the proceeding) was vexatious in the sense in which that term is used in cases such as Mudie v Gainriver Pty Ltd(No 2) [2003] 2 Qd R 271 at 283-285 (per McMurdo P and Atkinson J) and 290-291 per Williams JA). There is no evidence of any failure by the Hennings to respond to any information requests from Council during the IDAS process, and no evidence of a failure to properly discharge their responsibility in the proceedings.

1. The application for costs is dismissed.